Friday, July 12, 2019
Article on Wrongful Prolongation of Life - A Cause of Action That May Have Finally Moved Into the Mainstream
Samuel D. Hodge, Jr. recently published an Article entitled, Wrongful Prolongation of Life - A Cause of Action That May Have Finally Moved Into the Mainstream, 37 Quinnipiac L. Rev. 167 (2019). Provided below is the introduction to the Article.
An elderly gentleman with multiple health problems was resuscitated following a near-death experience and vowed not to let it happen again. In an effort to signal his desire to prevent a repeat of such heroic efforts, he executed a do not resuscitate ("DNR") directive following his recovery. A short time later, he developed severe discomfort and was taken to a local emergency room where he was diagnosed with a ruptured aortic aneurysm. None of the medical staff bothered to read his DNR directive, resulting in the elderly man undergoing a potentially unwanted surgery to repair the life-threatening anomaly.
A physician subsequently discovered the DNR directive and discussed the issue with the patient. The man angrily reconfirmed his wish to shun resuscitation efforts and, in response, the physician placed a DNR order in the chart. The surgeon who had performed the complicated operation became furious when he saw the order and changed it back to a "full code," a directive to employ all life-saving measures. This reversal triggered a consultation with the hospital's ethicist, which ultimately resulted in the reinstatement of the patient's DNR order. The elderly man eventually died from a heart attack during his hospital stay, seemingly without any further intervention.
Historically, physicians were able to act with impunity concerning end-of-life decisions because the courts did not recognize an action for wrongful prolongation of life. Many in the medical community believed that if "you do intervene and you shouldn't have, the worst that will happen is that the patient will live a little longer and that you'll never be held accountable if you keep the patient from dying." This attitude is undergoing a metamorphous as an increasing number of patients who have signed DNR orders are suing or subjecting medical providers to disciplinary proceedings for saving their lives. This article will provide a historical background on DNR orders and the various legislative initiatives undertaken to ensure that medical providers honor a person's end-of-life wishes. It will then explore the evolution of the wrongful prolongation of life litigation in a chronological fashion, with a focus on the majority of cases that do not allow recovery and the more recent determinations that have offered patients relief for the failure to honor their end-of-life directives.
Monday, July 8, 2019
California's probate process lasts for at least six months and can run much longer depending on the size of the estate and the particular nature of assets. The personal representative (executor) has the responsibility to resolve creditor claims, get the assets to the appropriate beneficiaries, and execute the estate efficiently. In a recently decided appellate case, the court affirmed the lower court's opinion that two decades is far too long of a "nap" for a personal representative.
In the Estate of Sapp, Roscoe Sapp, Sr. died in 1994 and left behind seven living children and an estate worth millions. The will, entered into probate in 1995, stated that his real property should go to his children to “to share + share alike.” After a daughter was removed as personal representative in 1999, Edith Rogers, a granddaughter, and two other grandchildren were appointed as representatives. But by 2001, only Edith and another representative remained, and they petitioned the court for instructions because they disagreed on how they should proceed because some of the remaining heirs were disabled and unable to care for themselves. The court sided with the other co-representative and instructed the estate to sell all the real property assets and distribute the proceeds. Two years later, the co-representative died, leaving Edith as sole personal representative of her grandfather's estate.
No surprise, but Edith did not follow the court's instructions. Though four real properties were apparently sold in 2004, the remaining nine parcels still were unsold in 2017. Another grandchild, Armuress Sapp, filed a petition to be named successor administrator because Edith was ineffective by removing the real estate from active listings, not paying heirs and creditors, and even allegedly offered to pay approximately ten family members $10,000 each to “just sign off and walk away.”
In April 2017, the probate court in Riverside County granted the petitions to remove Edith as administrator pursuant to California Probate Code section 8502 and appointed Armuress as successor administrator.
See Christopher Miles Kolkey, California Probate Administration is no Time for Napping, Trust on Trial, July 2, 2019.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Thursday, July 4, 2019
A man found underneath a car in Chicago on April 29 and taken to Mercy Hospital, severally beaten to the point of facial disfigurement, naked, and unconscious, was listed as John Doe until he could be identified through mugshots. He was believed to be Alfonso Bennett, and his family was told their loved one was in the intensive care unit. The family eventually took him off life support after he was in the hospital for six weeks and his condition failed to improve and he passed away shortly afterwards.
Unfortunately, the man was not Alfonso Bennett, but rather 66-year-old Elisha Brittman, and his family said he had been missing for weeks. Mioshi Brittman, his niece, claimed that she searched for her uncle "every day" and was dismissed by the police when she tried to file a missing person's report. Rosie Brooks, Alfonso Bennett's sister, said that she repeatedly told hospital staff that she could not recognize the man on the bed as her brother, but were dismissed as being in denial.
The Bennett and the Brittman families accuse the Chicago Police Department and Mercy Hospital of willful misconduct and negligence for using mugshots, and not fingerprints, to identify a man whose face was severely disfigured. The police say that identification through fingerprints are used as a last resort. Weeks after the Bennett family mourned the death of their loved one, Alfonso showed up to a family party after failing to let anyone know he took a vacation. The body at the morgue was then fingerprinted and correctly identified as Brittman. Each family are seeking $50,000 for the emotional trauma of the ordeal and the wrongful death of Elisha Brittman.
See Danielle Wallace, Two Families Suing After Disfigured Patient is Mis-ID'd, Taken off Life Support, Fox News, July 4, 2019.
Monday, July 1, 2019
In Oregon, the Jackson County District Attorney's Office charged Wanda Garcia and Lori Declusin with unauthorized use of a motor vehicle for allegedly taking a 1990s Ford Escort station wagon belonging to the deceased Dennis Day, and original member of the Mickey Mouse Club. Day's body had been discovered in his home in April after he had been missing for almost a year, as he had last been seen on July 15 of 2018.
Day, 76, had told his husband, Ernie Caswell, who at the time was suffering from dementia and living in an assisted living facility, that he was going out to visit friends, but no one ever heard from him or saw him alive again.
The car was discovered on July 26 near the Oregon coast, about 200 miles away from his home, but so far there is no evidence that there was a crime - besides the use of the station wagon, of course. Garcia is also facing one charge of theft for stealing and selling a brooch that had belonged to Day just days after that fateful phone call.
See Vandana Rambaran, 2 Oregon Women Accused of Stealing from a Dead Mouseketeer, Fox News, June 30, 2019.
Case Note on Kindred Nursing Centers v. Clark: United States Supreme Court Decisions on Mandatory Arbitration Provisions
Laurence I. Gendelman, Esq. recently published a Case Note entitled, Kindred Nursing Centers v. Clark: United States Supreme Court Decisions on Mandatory Arbitration Provisions, NAELA Journal Online, March 2019. Provided below is an introduction to the Case Note.
On February 22, 2017, the U.S. Supreme Court heard arguments regarding Kindred Nursing Centers v. Clark on writ of certiorari from the Kentucky Supreme Court. The Kentucky Supreme Court found that an arbitration agreement executed by a principal’s agent under a power of attorney was invalid because the power of attorney document did not specifically include a clear statement that the agent could enter into an arbitration agreement. The U.S. Supreme Court reversed the Kentucky Supreme Court’s decision, holding that the “clear-statement rule violates the Federal Arbitration Act by singling out arbitration agreements for disfavored treatment.” The opinion is consistent with the U.S. Supreme Court’s trend of promoting the enforceability of arbitration agreements.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Sunday, June 30, 2019
W. Marvin Rush II died at the age of 79 back in May of last year, but the battle over his estate is far from over, considering that he was the founder of one of the largest commercial truck dealership chains in North America. Rush Enterprises currently has a market cap of $1.32 billion. W.M. "Rusty" Rush III and his step-mother, Barbara, continue to take the fight to the Texas courts.
Rusty, 61, is the current chairman, current chief executive and president of Rush Enterprises, and began working for his father at the company in 1974. Barbara was Marvin's third wife and previously his secretary, and Rusty claims that his father insisted that she sign a marital agreement before the marriage occurred in 1991. The document stated that she "gave up any rights she might otherwise have, then or in the future, to claim any interest in any of Marvin's separate property or what might otherwise be community property," including any interest or title in Rush Enterprises, according to an amended lawsuit filed in Bexar County district court. However, the lawsuit also says that Marvin signed a durable power of attorney in 2013 that gave Barbara "unilateral control" over all of his assets. Rusty claims this is a clear sign that his father did not have the mental capacity to sign the document, because he did not disclose it to either of his sons, and prior to this Marvin had also been adamant about his wife staying out of the business decisions.
Barbara created the Rush Living Trust in 2017, transferring most of Marvin's assets into it, according to the lawsuit, including real estate, cash, automobiles, and stock to Rush Enterprises. The beneficiaries of the trust, valued at more than $44 million, are Barbara and her daughters. Barbara has also presented two 2013 wills that supposedly revoke the 2006 will Rusty filed.
See Family Feud Continues over Estate Left by the Founder of Rush Enterprises, MSN, June 26, 2019.
Special thanks to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention.
Wednesday, June 26, 2019
Steve R. Akers and Ronald D. Aucutt recently issued a summary of the unanimous Supreme Court decision of North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust. Provided below is the introduction to the summary.
North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust, 588 U.S. __ (June 21, 2019) is the U.S. Supreme Court’s first opinion addressing the constitutionality of state taxation of the undistributed income of trusts in almost a century. In a 9-0 opinion, the Court upheld lower court findings that North Carolina’s income tax imposed on the Kaestner Trust over a specific 4-year period violated the Due Process Clause where the beneficiaries received no income in those tax years, had no right to demand income in those years, and could not count on ever receiving income from the trust.
States employ a variety of factors (or combination of factors) in determining whether the state can tax the undistributed income of trusts, such as the residency of the settlors, trustees, beneficiaries, or where the trust administration occurs. The opinion provides minimal guidance as to the constitutionality of those various systems (or the North Carolina beneficiary-based system under other facts), but reiterates and applies traditional concepts that due process concerns the “fundamental fairness” of government activity and requires “minimum contacts” under a flexible inquiry focusing on the reasonableness of the government’s action.
See Steve R. Akers & Ronald D. Aucutt, Kaestner Trust — Supreme Court Guidance for State Trust Income Taxation, BessemerTrust.com, June 24, 2019.
Special thanks to Scott M. Deke for bringing this article to my attention.
Tuesday, June 25, 2019
Was the unanimous SCOTUS wrong in deciding North Carolina Department of Revenue v. Kaestner Family Trust?
On June 21, 2019, the Supreme Court of the United States decided North Carolina Department of Revenue v. The Kimberley Rice Kaestner 1992 Family Trust. By a 9-0 margin (7 joining the majority and 2 strong concurring opinions), the court decided that North Carolina cannot tax nonresident trust payments.
In Due Process, State Taxation of Trusts and the Myth of the Powerless Beneficiary: A Response to Bridget Crawford and Michelle Simon, 67 UCLA L. Rev. Disc. (2019), Prof. Oxford Research Professor of Law and Director, Certificate in Estate Planning, Oklahoma City University School of Law), takes issue with Bridget Crawford and Michelle Simon’s arguments (the ones that prevailed in the case) in their article The Supreme Court, Due Process and State Income Taxation of Trusts, 67 UCLA L. Rev. Disc. 2 (2019).
Here is a brief excerpt from Prof. Spivack's article:
Taxing the beneficiary in this case is entirely consistent with the basic principle of tax law that a person who controls and receives benefit from income should pay taxes on it. The real question here is whether the beneficiary controlled, and received enough benefits from, her trust income while she lived in North Carolina to pay state income taxes on it. The trustee by definition is barred from enjoying any beneficial interest in the trust property—the only person who may receive beneficial interest is the beneficiary. If and when the beneficiary receives the benefits of trust income, she should pay the corresponding tax in her state of domicile. This is uncontroversially consistent with due process. The trustee here makes ample use of the myth of the powerless beneficiary by trying to direct all eyes to the trust in the question of tax jurisdiction. But the Court need not fall for this sleight of hand.
This brings me to Crawford and Simon’s second major point. They assert that the fact that the beneficiary did not receive distributions from the trust while in North Carolina means the state cannot tax her proportionate share of trust income. I argue that the mere fact that the trustee did not literally write checks to the beneficiary does not mean she failed to benefit from her share of trust income or control it for tax purposes. First, as discussed below, the record shows that her interest in the trust alone, even without distributions, allowed her to benefit from her share of trust income, in ways that should subject her to taxation in the state. Second, the beneficiary requested that the trustee not make distributions to her during the relevant period. Under tax law, her power to decline distributions showed she had control over them, and thus was required to pay income taxes.
Saturday, June 22, 2019
Casey Kasem’s Daughter Wants to Bring Star’s Body Back from Norway, Stepmother Denies Elder Abuse Allegations
Casey Kasem, the esteemed disk jockey, passed away in 2014 at the age of 82, but the drama swirling amongst his family has yet to settle down. His daughter, Kerri, wants to have his body returned to the United States even though he was buried in Norway 6 months after his death. She also alleges that her stepmother, Jean, abused her father while he was suffering from dementia and hindered Kerri and other friends and relatives from visiting him.
In 2013, Kerri and a dozen other individuals held signs outside of Casey's Los Angeles mansion, demanding Jean to allow them access to him as he suffered from failing health. Kerri said that her and her siblings had not been able to see their father in more than three months. Jean denied the claim, instead stating that she was simply giving her husband the privacy that he craved. There were many other allegations tossed back and forth between Kerri and Jean, resulting in Jean being stripped of control over Casey's healthcare decisions in 2014 after a Washington judge decided she had not acted in his best interests and awarded Kerri and conservatorship.
Kerri claimed she is eager to confront her stepmother in court again and that once and for all, she will set the record straight.
See Stephanie Nolasco, Casey Kasem’s Daughter Wants to Bring Star’s Body Back from Norway, Stepmother Denies Elder Abuse Allegations, Fox News, June 18, 2019.
Friday, June 21, 2019
SCOTUS Decides North Carolina Department of Revenue v. The Kimberley Rice Kaestner 1992 Family Trust
Earlier today, June 21, 2019, the Supreme Court of the United States decided North Carolina Department of Revenue v. The Kimberley Rice Kaestner 1992 Family Trust. By a 9-0 margin (7 joining the majority and 2 strong concurring opinions), the court decided that North Carolina cannot tax nonresident trust payments.
Here is an excerpt from the opinion:
This case is about the limits of a State’s power to tax a trust. North Carolina imposes a tax on any trust income that “is for the benefit of ” a North Carolina resident. N. C. Gen. Stat. Ann. §105–160.2 (2017). The North Carolina courts interpret this law to mean that a trust owes income tax to North Carolina whenever the trust’s beneficiaries live in the State, even if—as is the case here—those beneficiaries received no income from the trust in the relevant tax year, had no right to demand income from the trust in that year, and could not count on ever receiving income from the trust. The North Carolina courts held the tax to be unconstitutional when assessed in such a case because the State lacks the minimum connection with the object of its tax that the Constitution requires. We agree and affirm. As applied in these circumstances, the State’s tax violates the Due Process Clause of the Fourteenth Amendment.