Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Monday, April 22, 2019

Washington State Could Become First State to Allow Human Composting

TreeWashington state Senate and House of Representative passed bill 5001 on Friday which would allow residents to take part in natural organic reduction” of human remains. The bill reportedly passed easily and with bipartisan support, having taken years in the making to get the bill this far.

Research showed that careful composted human remains could be safe for use in a household garden, and that a trial that involved six backers that agreed to organic reduction. The results were positive and “the soil smelled like soil and nothing else." Democratic state Sen. Jamie Pedersen stated that, “People from all over the state who wrote to me are very excited about the prospect of becoming a tree or having a different alternative for themselves.” The process will reportedly cost $5,500.

See Edmund DeMarche, Washington State Could Become First State to Allow Human Composting, Fox News, April 21, 2019.

April 22, 2019 in Current Affairs, Current Events, Death Event Planning, Estate Planning - Generally, Science | Permalink | Comments (0)

Tuesday, April 16, 2019

Sperm Donor Tells Australian High Court He is the Legal Father to Lesbian Couple's Daughter

FamilylawRobert Masson, as he is known to Australia's High Court, claims that he is the legal father to a lesbian couple's young daughter. He states that one of the women, a friend of his for 25 years, approached him to donate sperm on the contingency that he would play an important role in the future child's life. He is listed as the biological father on the girl's birth certificate, and he insists that she refers to him as "daddy."

He did not assert his legal claim to the girl until the couple wanted to take her out of the country. Now there is a constitutional issue as the parties argue that state law and Commonwealth law have different perspectives, one stating that a sperm donor is a legal father while according to the other the sperm donor is not.

A judge presiding over the case asked Tuesday: “Is there not a difference between the university student who is a donor to a sperm bank for a few bob and the sperm donor who plays a role in the life of the child?” The result of this case is primed to be a landmark decision in the argument over what the legal requirements are to be a parent.

See Kaylie Piecuch, Sperm Donor Tells Australian High Court He is Legally Father to Lesbian Couple's Daughter, Fox News, April 16, 2019.

April 16, 2019 in Current Affairs, Current Events, Estate Planning - Generally, New Cases, Science, Travel | Permalink | Comments (0)

Saturday, April 13, 2019

Baby Born Using Controversial 3-Parent IVF Technique in Medical First, Doctors Report

IVFMedical history has been made with the successful delivery of a healthy baby boy in Greece through a controversial IVF techniques that involves three parents instead of the traditional two. He was conceived through Maternal Spindle Transfer (MST), a process in which harmful mitochondria found in the mother’s egg is removed and replaced by the female donor’s.

“The donor will only provide mitochondrial DNA, which only codes 37 genes and represents less than 1 percent of human DNA,” Dr. Nuno Costa-Bo said in an earlier statement. The female that carries the child will provide the majority of the DNA material to the baby. The mother resorted to the new method after failing to complete four cycles of IVF and an additional two other procedures.

Not everyone in the medical field is a fan of the new procedure. “There is limited evidence on risks and success rates, and it should only be used cautiously in cases where alternative treatments would be of little or no benefit,” a spokesperson for the Human Fertilization and Embryology Authority said in a statement about the birth. The MST procedure is currently banned in the United States, though about one in three adults know a person that has engaged in IVF procedures.

See Kaylie Piecuch, Baby Born Using Controversial 3-Parent IVF Technique in Medical First, Doctors Report, Fox News, April 12, 2019.

April 13, 2019 in Current Affairs, Estate Planning - Generally, Science | Permalink | Comments (0)

Friday, April 12, 2019

Article on Dementia, Autonomy, and Supported Healthcare Decision Making

AlzMegan S. Wright recently published an Article entitled, Dementia, Autonomy, and Supported Healthcare Decision Making, Elder Law eJournal. Provided below is an abstract of the Article.

Healthcare providers often rely on surrogates to decide on behalf of their patients with dementia who are deemed incapable of exercising autonomy. There is a longstanding debate about the appropriate standard of surrogate healthcare decision making for these patients. Many influential scholars argue that the precedent autonomy of the person with dementia should be respected, and healthcare decision-making laws generally reflect this principle. These laws direct surrogate decision makers to follow instructions in living wills or to decide on the basis of the wishes and values of the person before the onset of dementia. But other prominent scholars have questioned whether surrogates should instead use the best interests standard, which accounts for the current interests of the person with dementia.

This debate about decision-making standards ignores an arguably more important issue: who should be deciding? Empirical research demonstrates that persons with mild dementia retain the ability to make or participate in decisions despite their acquired cognitive impairments, and that they prefer to be actively involved in healthcare decision making. However, persons with dementia are routinely marginalized in the decision-making process, which leads to a decline in their psychological wellbeing.

Based on studies of their decision-making abilities, preferences, and experiences, this Article argues that persons with dementia should not be prevented from making their own healthcare decisions. Stated differently, persons with dementia should have the legal right to make their own healthcare decisions at the time when the decisions need to be made. Ensuring this right will require looking beyond surrogate-based healthcare decision-making law, which facilitates the exclusion of persons with dementia from decision making.

Disability law in four states provides an alternative decision-making model, known as supported decision making, which empowers persons with cognitive impairments to make their own decisions and could be usefully applied to dementia. In supported decision-making, an adult with a disability (the “principal”) voluntarily chooses people to assist them in decision making (a “supporter”), and formalizes this arrangement in a written agreement. The supporter’s role is to help the principal gather relevant information, think through the decision, and convey the decision to other people. Supported decision making preserves the legal decision-making authority of a person with a disability rather than transferring such authority to a surrogate. Because supported decision making accords with the preferences and interests of persons with dementia, supported decision-making laws should be widely adopted.

This novel application of supported decision making to dementia also provides insight into the nature of autonomy in the larger context of late-life healthcare decision making. My past research has demonstrated that autonomous decision making in this context is relational, which is consistent with supported decision making. This Article further builds upon this conceptualization and advances a new understanding of autonomy in healthcare decision making as more closely approximating relational agency. With this revised understanding of autonomy and the adoption of supported decision making, persons with dementia can remain autonomous for longer in the progression of their disease.

April 12, 2019 in Articles, Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, New Legislation, Science | Permalink | Comments (0)

Sunday, April 7, 2019

Brazilian Identical Twins Both Ordered to Pay Maintenance

FatherIdentical twin brothers in Brazil that were using their matching looks to date as many women as possible and defend themselves if they were caught cheating are finally paying the price for their nefarious actions. One of the women they both dated fathered a little girl, and neither man is stepping up to the plate to claim that she is his daughter.

A paternity test was inconclusive due to their identical twin status. The brothers thought that if neither man claimed paternity, the child support suit would be dropped. Judge Filipe Luís Peruca, in the central state of Goiás, had other ideas and put the little girl's needs before the men's. He ruled that both of the men will pay maintenance 230 reais, approximately $60, which is 30% of the minimum salary in the country.

The judge also ruled that both of the brothers will be listed on the girl's birth certificate.

See Brazilian Identical Twins Both Ordered to Pay Maintenance, BBC, April 2, 2019.

Special thanks to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention.

April 7, 2019 in Current Events, Estate Planning - Generally, Humor, New Cases, Science | Permalink | Comments (0)

Monday, April 1, 2019

A 61-Year-Old Woman Gave Birth to her own Granddaughter

SurrogacyMatthew Eledge and his husband Elliot Dougherty desperately wanted to start their own family. When Matthew's mother, Cecile Eledge offered to be their surrogate, they thought at first it was a joke because she was post-menopausal and over 60. But she definitely was not kidding.

Dr. Carolyn Maud Doherty was willing to explore that option, and after a series of tests and exams, Cecile was approved to be a surrogate. The woman had to start on estrogen to restart her menstrual cycle. "It's important for people to note that not every 60-year-old is in good enough health to be a surrogate," Dr. Doherty says. After just one try of invitro fertilization, an embryo consisting of a donated egg of Elliot's and Matthew's sperm was successfully implanted. 9 months later, Uma Louise Dougherty-Eledge was born, weighing 5 pounds and 13 ounces.

However, Uma's birth certificate is quite awkward at the moment. Matthew says that, "Nebraska requires the sperm donor to be the father and the person who delivers the baby to be the 'mother,' even if she's not biologically related to the child." So Matthew is the father on the document, and his mother is Uma's legal mother. That is, until Elliot goes through the formal adoption process and gains all the rights as the other parent.

See Susanna Heller, A 61-Year-Old Woman Gave Birth to her own Granddaughter, MSN, March 29, 2019.

April 1, 2019 in Current Events, Estate Planning - Generally, Science | Permalink | Comments (0)

Sunday, March 31, 2019

New Study Shows an Eye Scan Can Detect Signs of Alzheimer's Disease

EyeThe Duke Eye Center have discovered that the small blood vessels in the retina at the back of the eye of patients with Alzheimer's are altered through the help of a new, non-invasive device. The researchers also revealed that they can distinguish between people with Alzheimer’s and those with only mild cognitive impairment. The study, published online in Ophthalmology Retina, a journal of the American Academy of Ophthalmology, brings forth a quick and inexpensive way to detect the disease in its early stages.

The imaging used in the research is called optical coherence tomography angiography (OCTA). It enables physicians to see blood vessels in the back of the eye that are smaller than a strand of hair. Researchers have focused several studies on the retina because it is an extension of the brain and shares many similarities with it, and thus the changes within the retina may mirror the changes within the brain in Alzheimer's sufferers.

The study consisted of using OCTA to study the retinas in 70 eyes of 39 Alzheimer’s patients with 72 eyes of 37 people with mild cognitive impairment, as well as 254 eyes of 133 cognitively healthy people. The researchers found that those with Alzheimer's had loss of small retinal blood vessels at the back of the eye and that a specific layer of the retina was thinner when compared to people with mild cognitive impairment and healthy people.

See New Study Shows an Eye Scan Can Detect Signs of Alzheimer's Disease, Science Blog, March 11, 2019.

March 31, 2019 in Current Events, Elder Law, Estate Planning - Generally, Science, Technology | Permalink | Comments (0)

Article on Decision and Persuasion: Re-Conceiving the Role of the Planner Where Undue Influence is Suspected

ActecJames C. Milton and Katheleen R. Guzman recently Article entitled, Decision and Persuasion: Re-Conceiving the Role of the Planner Where Undue Influence is Suspected, ACTEC Law Journal, Vol. 44, No. 1, 137 - 143 (Winter 2019). Provided below is an introduction of the Article.

Our population is aging. Blended familiar are becoming more common, complex, and multi-generational. Conservatorships have increased, along with the incidence of elder and financial abuse claims. While financial abuse is nothing new, modern sociocultural and familiar dynamics have compelled renewed legislative attention where profound decisional control is granted to proxies over the property of those they are supposed to protect. Often, that trust is misplaced. As these data converge and interact, the growth curve in undue influence claims will continue to accelerate, along with attendant and alter estate planning strategies. The world is rapidly changing, and it appears that there is "no turning back."

Into this context comes a timely piece exploring leading edge research over the effect that recent psychological and neuroscientific discoveries might hold for planning and litigation. In Undue Influence: The Gap Between Current Law and Scientific Approaches to Decision-Making and Persuasion, Dominic Campisi, Evan Winet, and Jake Calvert reveal the under-appreciate role that the sub- or unconscious mind plays with complex decision making, and the presumably equally underdeveloped "psychology of percussion" that influencers might wield in search of a desired outcome. As Campisi el al. make clear, an integrated understanding of both should feature prominently or those wishing to avoid, press, or defend an undue influence claim, particularly give the exacerbating effects of age and cognitive decline upon tendencies toward triggered decision making. It takes but a quick look at such undue influence factor as "susceptibility to influence" to see why. How might the law respond?

March 31, 2019 in Articles, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Guardianship, Science | Permalink | Comments (0)

Wednesday, March 27, 2019

Study: Music Is Powerful Enough To Resist Alzheimer’s & Dementia

MusicheartThe Journal of Prevention of Alzheimer's Disease claims that the distressing effects of the condition can subside for short periods of time when the patient hears songs that are important to them from their past.

Particular songs that call to us can ignite a certain physical response when we listen to them. This sensation, called Autonomous Sensory Meridian Response, or ASMR, appears to sear those songs harder into our brains. Because this tingling response catalogs those songs differently, the melodies can cause the condition's heartbreaking symptoms to fade temporarily while the sufferer listens to them.

Jeff Anderson, M.D., Ph.D., associate professor in Radiology at the University of Utah Health, says: “In our society, the diagnoses of dementia are snowballing and are taxing resources to the max. No one says playing music will be a cure for Alzheimer’s disease, but it might make the symptoms more manageable, decrease the cost of care and improve a patient’s quality of life.”

See Karlie Powell, Study: Music Is Powerful Enough To Resist Alzheimer’s & Dementia, Your EDM, March 24, 2019.

March 27, 2019 in Current Affairs, Disability Planning - Health Care, Estate Planning - Generally, Music, Science | Permalink | Comments (0)

Saturday, March 23, 2019

Legal Fight Between Moonwalker Buzz Aldrin and Kids is Over

Apollo11As the 50th anniversary of the moonwalk approaches, a shadow looming over the impending celebrations has been eradicated. Two children of astronaut Buzz Aldrin that had petitioned to become guardians of their father have withdrawn the petitions, and thus Aldrin also dropped his lawsuit against them and his former manager.

Aldrin, 89, stated that the end of the legal battle will help restore harmony within his family. "This was the most charitable way to manage a difficult situation, as this year, which marks 50 years since we first stepped foot on the moon, is too important to my family, the nation and me." Aldrin was second many ever to walk on the moon, on July 20, 1969, immediately after Neil Armstrong during the mission Apollo 11.

Buzz Aldrin sued two of his three children, Andy and Jan Aldrin, in Florida court after they filed a petition saying their father was suffering from memory loss, delusions, paranoia and confusion. The children said Aldrin was associating with new friends who were trying to alienate him from his family, and that he had been spending his assets as "an alarming rate." Aldrin's oldest son, James, wasn't involved in the legal fight.

See Mike Schneider, Legal Fight Between Moonwalker Buzz Aldrin and Kids is Over, SF Gate, March 13, 2019.

Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

March 23, 2019 in Current Events, Estate Administration, Estate Planning - Generally, Guardianship, New Cases, Science | Permalink | Comments (0)