Wednesday, June 12, 2019
On Wednesday, Maine became the ninth jurisdiction to legalize medically assisted suicide when Governor Janet Mills signed the Maine Death With Dignity Act, joining California, Colorado, Hawaii, Oregon, Vermont, Washington, New Jersey and the District of Columbia. It narrowly passed both houses before it found its way onto the governor's desk.
The bill requires the patient to undergo two waiting periods and one written and two oral requests and obtain opinions from at least two physicians stating that it is appropriate. The person requesting the medication must also be at least 18 and have a "terminal illness," defined in the bill as one that cannot be cured and will likely result in death within six months. The Act criminalizes coercing a patient into requesting life-ending medication and falsifying a request for the procedure.
Supporters of the bill say that terminally ill patients should have the option to end their lives with dignity. But critics claim that the policy is dangerous and entices insurance companies to promote medically assisted suicide in leu of quality care. Matt Valliere, executive director of Patients Rights Action Fund, commented that the legislation "puts the most vulnerable people in society at risk for abuse, coercion and mistakes."
See Tal Axelrod, Maine Legalizes Medically Assisted Suicide, The Hill, June 12, 2019.
Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.
John A. E. Pottow recently published an Article entitled, Bankruptcy Fiduciary Duties in the World of Claims Trading, 13 Brook. J. Corp. Fin. & Com. L. 87-98 (2018). Provided below is an abstract of the Article.
In earlier work, I explored the role of fiduciary duties in the bankruptcy trustee's administration of a debtor's estate, noting the absence of any explicit demarcation of those duties in the Bankruptcy Code. In this piece, I report the highlights of that analysis and see to what extent (if any) fiduciary duties can inform policy prescriptions for the issue of bankruptcy claims trading, colorfully referred to by some as the world of "bankruptcy M&A." My initial take is pessimistic. Fiduciary duties, at least as traditionally conceived in bankruptcy, are unlikely to provide much help. But there is still a source of optimism. Namely, the structural and procedural institutions of the Bankruptcy Code and court system may, through a transparent, court-supervised litigation process, achieve many of the same conflict-checking functions with which fiduciary duty law concerns itself.
Tuesday, June 11, 2019
A friend of Mary Max, 52, the wife of artist Peter Max, found her body Sunday inside the couple's 15th floor apartment on Manhattan's Upper West Side on Riverside Drive near West 84th Street. The cause of death is an apparent suicide of nitrogen asphyxiation. Mary and her stepson, Adam, had been steeped in legal turmoil revolving around the failing health of 81-year-old Peter and his artwork.
Peter has an advanced state of dementia, and his mental state has steadily declined in recent years. Adam had sued Mary in 2015 claiming that she was trying to kill his father to gain control over his multi-million dollar art collection. Mary asked then asked the court to appoint a guardian to oversee her husband's business after Adam and three business associates took over the artist's studio, increasing production and profit through a series of art auctions on cruise ships. After the appointment of the guardian, Adam removed his father from his home and moved him around New York for more than a month, to which Mary accused him of "kidnapping" Peter and withholding his whereabouts from her.
A judge ordered Peter to be returned to Mary's care at their Manhattan apartment and that a guardian oversee both his business and personal affairs. Peter's daughter who lives in Los Angeles, Libra, took over her father's studio in January and filed a lawsuit to stop her brother from being able to interact with the company.
See Bridie Pearson-Jones and Ariel Zilber, Mary Max, Wife of Peter Max, is Found Dead of an Apparent Suicide, Daily Mail, June 11, 2019.
Nina A. Kohn recently published an Article entitled, For Love and Affection: Elder Care and the Law's Denial of Intra-Family Contracts, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.
As the U.S. population ages, demand for care providers for older adults is rapidly growing. Although the law’s treatment of care contracts between older adults and their family caregivers has substantial implications for the country’s ability to meet this demand, there has been no prior empirical examination of the law’s current treatment of such agreements. This Article fills that gap by assessing how courts and other legal actors treat intra-family agreements to pay family members for elder care. A look into a long-ignored area of case law— Medicaid eligibility determinations—reveals that courts, administrative law judges, and state regulators typically attach little or no monetary value to elder care provided by family members. Rather, payments for caregiving are routinely treated as fraudulent transfers. The result is that, in the name of combatting Medicaid fraud, states penalize older adults who pay for their own care.
Treating family-provided elder care as lacking monetary value stands in sharp contrast to the high cost of elder care purchased on the open market and is at odds with states’ increased willingness to directly pay family care providers. This Article shows that this incongruence can be partially explained by public distaste for Medicaid planning and distrust of agents acting on behalf of older adults. Entrenched stereotypes about care work and related expectations about familial care also contribute to the law’s refusal to recognize these agreements and the economic value of care provided under them.
This Article offers lessons for social policy, legal theory, and legal practice. On a policy level, it shows that states are engaged in counterproductive behavior that will discourage the very type of family care they purport to encourage. On a theoretical level, it indicates that attitudes toward care work and courts’ willingness to enforce contracts between family members have not changed to the extent commonly described by family law scholars. Finally, at a practical level, it suggests that attorneys should adapt the advice they give clients to better account for distrust of agents.
The late Tom Petty took the advice of any estate planning attorney and wrote a detailed estate plan, yet over a year-and-a-half after his sudden death in 2017, his family is still fighting over what those instructions truly mean. Amanda DiChello, a trusts and estates attorney in private client services at Cozen O’Connor in Philadelphia, points out that even with the best of intentions, wills and estates are complicated.
The rock-and-roller instructed that the management of his estate (and sizable music catalog) would be left to his widow and two daughter from a prior marriage in "equal participation." But what did Petty intend by the word equal? Does that instruction mean that each of the three parties gets to participate equally in the decision making or that the widow and daughters split the decision making fifty-fifty? The daughters, Adria Petty and Annakim Violette, filed a suit in Los Angeles against their step-mother, Dana York Petty, claiming that they are entitled to more control and are asking for $5 million in damages plus attorney's fees.
A financial advisor should make sure his or her clients have a stable and unambiguous estate plan and if a fight is foreseeable, he or she should make sure all future entanglements are considered. “Many people feel they can trust their spouses and children. Often there is peace between first and second spouses and children before someone dies, but it may not stay that way after death," DiChello commented.
See Karen DeMasters, Tom Petty's Estate is in Chaos—and That's With a Will, Financial Advisor, June 5, 2019.
Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.
Monday, June 10, 2019
John Morley & Robert H. Sitkoff recently published an Article entitled, Trust Law: Private Ordering and the Branching of American Trust Law, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.
In this chapter, prepared for The Oxford Handbook of New Private Law, we identify the principal ways in which the common law trust has been used as an instrument of private ordering in American practice. We argue that in both law and function, contemporary American trust law has divided into distinct branches. In our taxonomy, one branch involves donative trusts and the other commercial trusts. The donative branch divides further to include separate sub-branches for revocable and irrevocable donative trusts. We explain the logic of this branching in both practical function and doctrinal form.
Finally! The Connecticut legislature has passed House Bill 7104, containing the state's version of the 2000 Uniform Trust Code as well as the 2017 Uniform Directed Trust Act. The Uniform Trust Code has already been passed in 35 jurisdictions. The bill awaits the governor's signature.
HB 7104 was a project that included several groups of professional writing and advising on the bill. It was drafted by a small working group of lawyers from the Estates and Probate Section of the Connecticut Bar Association with substantial input from the Connecticut Bankers Association, the Offices of the Probate Court Administrator and the Attorney General. The bill extends the statutory rule against perpetuities for new trusts from 90 to 800 years, and provides for the establishment of irrevocable, self-settled Domestic Asset Protection Trusts, which exist in over 20 other jurisdictions.
See Suzanne Brown Walsh, Praise the Lord (and Pass the Governor a Pen): Connecticut Finally Updated its Trust Laws, Murtha Law, June 6, 2019.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
An 88-year-old man, Ralph Miyata, died while attempting to scatter the cremains of his late wife at a lake in Indiana. The cause of death was ruled a heart attack. A friend that had been with him, James Sprecher, says that he helped the elderly man onto the dock, then when he turned around heard a splash as the man fell into the lake. “It was not a drowning," Sprecher said, who also happened to be a retired doctor. "He was dead when he hit the water."
Miyata was also cremated, according to his obituary. "He had completed his mission, which was putting his wife’s ashes into the lake," Sprecher said.
See Nicole Darrah, Indiana Man, 88, Reportedly Dies of Heart Attack While Scattering Wife's Ashes, Fox News, June 9, 2019.
Sunday, June 9, 2019
Article on Evaluating the Legality of Age-Based Criteria in Health Care: From Nondiscrimination and Discretion to Distributive Justice
Govind Persad recently published an Article entitled, Evaluating the Legality of Age-Based Criteria in Health Care: From Nondiscrimination and Discretion to Distributive Justice, 60 B.C. L. Rev. 889-949 (2019). Provided below is the abstract for the Article.
Recent disputes over whether older people should pay more for health insurance, or receive lower priority for transplantable organs, highlight broader disagreements regarding the legality of using age-based criteria in health care. These debates will likely intensify given the changing age structure of the American population and the turmoil surrounding the financing of American health care. This Article provides a comprehensive examination of the legality and normative desirability of age-based criteria. I defend a distributive justice approach to age-based criteria and contrast it with two prevailing theoretical approaches to age-based criteria, nondiscrimination and discretion. I propose a detailed normative framework for the use of age-based criteria in health care, the lifetime justice approach, that considers the future life patients can gain from treatment and the past years of life they already have experienced.
The drama just keeps coming after the death of Boyz N The Hood filmmaker, John Singleton. His daughter and eldest child, Justice, 26, filed for a restraining order on Friday against Avance Smith, a close friend of Singleton's. Justice is claiming that Smith broke into the locked office of her father and stole valuables and also threatened her via texts and in person. A judge has denied the initial request and a hearing has been set for the end of June.
Justice's filing comes only a day after John's mother, Shelia Ward, made an emergency request to the courts to control his assets, estimated to be worth about $35 million at the time of his death. Supposedly the emergency request was prompted by the break-in at Singleton's office.
Another big family drama in this epic is that the director's will was written in 1993 when Justice was an only child and was named the sole beneficiary of his estate. However, she ended up being the eldest of seven children. Under California law, children born after the execution have a legal claim to inherit, as long as there is not a provision that expressly disinherits future children. Also, some of Singleton's exes and children have hired an investigator to map out the hours leading up to his arrival at the Los Angeles hospital. There are no Uber or Lyft receipts, and he reportedly did not drive himself.
See Kevin Kayhart, John Singleton's Daughter Files for Restraining Order Against his Pal, Daily Mail, June 7, 2019.