Elder Law Issues
Estate Planning: It Shouldn’t Be About the Lawyers
AUGUST 22, 2011 VOLUME 18 NUMBER 30 Of course it usually makes sense to place your estate planning wishes in the hands of your lawyer to make sure documents are correctly drawn and your wishes carried out. Lawyers can be very protective of what they perceive as their clients’ wishes and best interests, and sometimes
How To Revoke Your Revocable Living Trust, Will or Power of Attorney
AUGUST 8, 2011 VOLUME 18 NUMBER 29 Last March we told you a good story about revocation of a living trust, though we cautioned you not to use the same method. A year before that we told you about another colorful character and how he revoked his will. Both of those court cases made us
Court Selection of Conservator Should Have Family Input
AUGUST 1, 2011 VOLUME 18 NUMBER 28 It is a recurring question in guardianship and conservatorship cases: when there is family conflict, or an allegation that a family member has taken advantage of an individual, who should the courts appoint to manage the person’s financial and personal affairs? Family should have priority, of course —
Appellate Court Upholds Orders in New Jersey/Texas Guardianship
JULY 25, 2011 VOLUME 18 NUMBER 27 We have told you about Lillian Glasser before. She is a wealthy New Jersey woman with two children who disagree about where she resides, who should manage her health care and finances, and what should be done about financial actions taken in the months before court proceedings were
The Difference Between Powers of Attorney and Guardianship
JULY 18, 2011 VOLUME 18 NUMBER 26 “Elder law” (what we practice here at Fleming & Curti, PLC) can be a fairly broad practice area. We work in estate planning, long-term care planning, guardianship and conservatorship, trust administration and probate — and each of those areas encompasses a number of other topics as well. But
Petitioner Not Appointed Conservator, Pays Own Attorney
JULY 11, 2011 VOLUME 18 NUMBER 25 When appointment of a guardian and/or conservator is necessary, the cost of securing the appointment is usually a legitimate charge to be paid by the ward’s estate. There are exceptions, but the general rule is that the guardian’s and conservator’s fees, together with the fees charged by the
Failure to Distribute Estate On Time Leads to Damages Award
JULY 5, 2011 VOLUME 18 NUMBER 24 Family members sometimes assume that an estate will be ready for distribution within days or weeks of a death. Those familiar with the probate process usually appreciate that it is more likely that distribution will be between six months to a year after death — and sometimes longer.
What Is a Trust Protector? Do You Need One In Your Trust?
JUNE 27, 2011 VOLUME 18 NUMBER 23 We have written before about Arizona’s new Trust Code, and the Uniform Trust Code on which it is based. The “new” law (it became effective on January 1, 2009, so it’s not that new any more) included a number of changes to the way trusts have worked in
Decanting: It’s Not Just for Fine Wines Anymore
JUNE 20, 2011 VOLUME 18 NUMBER 22 Imagine this tragic scenario: your 33-year-old son has a serious illness, and requires extensive medical treatment. The good news is that the treatment may well effect a cure. The bad news is that it will be horribly expensive. Right now he qualifies for government assistance with that expense
Lawyer Suspended After Representing Wife as Conservator
JUNE 13, 2011 VOLUME 18 NUMBER 21 Richard J. Murphy was first admitted to practice law in 1964. He was a fixture in local political and legal circles in Osceola, Iowa, for nearly fifty years. He was the attorney for the City of Osceola, and he had been the County Attorney years earlier. His private
When Is a Living Trust More Appropriate Than a Will?
JUNE 6, 2011 VOLUME 18 NUMBER 20 Last week we answered a pair of questions from our readers and solicited others. Almost immediately we received an excellent question: What are the factors you look at to determine if a client is best served w/ a will and durable power of attorney or a living trust?
We Invite Your Questions, and Answer a Few
MAY 30, 2011 VOLUME 18 NUMBER 19 Periodically we try to answer some of our readers’ frequent questions, which we enjoy receiving. Some more recent questions and our quick attempts at simple answers follow. Remember, please, that slight variations in fact patterns can lead to different answers; these are intended as illustrations and guidance, not
Lawyer Suspended for Bad Special Needs Trust Advice
MAY 16, 2011 VOLUME 18 NUMBER 18 Sometimes in our zeal to help solve problems we lawyers can get carried away. We are constrained by ethical rules to avoid conflicts of interest. We also have to act competently. In a case involving an injured young man, a special needs trust and the state’s Medicaid claim
If You Were the Probate Judge, What Would You Decide?
MAY 9, 2011 VOLUME 18 NUMBER 17 Let us give you some insight into how hard it can be to figure out how to interpret estate planning documents. At the same time we hope to explain why it is important to keep your own estate plan up to date. Timothy M. Donovan was a successful
Updated information re: hoarding
Turns out that hoarding behaviors may be more properly associated with depression than with obsessive/compulsive disorders. Also that hoarding problems tend to worsen with age. Read more in a National Public Radio report on a recent national meeting on aging issues. Both pieces of news square with our observations. They also lead to the conclusion
Despite Guardianship, Ward May Have Capacity to Marry
MAY 2, 2011 VOLUME 18 NUMBER 16 We have written in previous installments about differing state laws regarding the ability of a guardian (of the person) or conservator (of the estate) to file a divorce proceeding “for” an incapacitated adult. The question that comes up more often from our clients is a little different, though.
Arizona Legislature Adopts Probate Changes
APRIL 25, 2011 VOLUME 18 NUMBER 15 Last week the Arizona Legislature adjourned for the year. Just before closing down the session legislators adopted a number of new measures dealing with probate court, trusts and especially guardianship and conservatorship matters. Most of the bills passed by the legislature are still awaiting the Governor’s signature, but
NAELA, NELF, CELA, ACTEC — What Does It All Mean?
APRIL 18, 2011 VOLUME 18 NUMBER 14 All you want to do is to find a lawyer to draft a simple will and powers of attorney. You ask your friends, but no one has a referral they feel unequivocally good about. A little online searching reveals that there are any number of organizations, credentials and
Conservator’s Accounting Approved in Contentious Proceeding
APRIL 11, 2011 VOLUME 18 NUMBER 13 The Montana Supreme Court identifies him as “J.R.” to protect him from public identification, but it is possible to get quite a feeling for him, his family and the two different conservators appointed to handle his finances. In 2006, when the legal proceedings started, J.R. was 78 years
What Preparation Do I Need For My Son’s 18th Birthday?
APRIL 4, 2011 VOLUME 18 NUMBER 12 My son will be 18 in a little more than a year. He is in high school, in the special education program. What do I need to do to prepare for his eighteenth birthday? Excellent question. Assuming it is limited to legal matters (those are the only ones
Consumer Alert: Watch Out for Pitchmen — Come Hear Our Pitch
MARCH 28, 2011 VOLUME 18 NUMBER 11 Are we just too cynical? Is it possible that the flyer we received in the mail last week is genuinely valuable and the company upstanding? Could it be that it is not an annuity sales pitch aimed at seniors? On one side we see a series of “Consumer
Ohio Lawyer Suspended From Practice Over Mishandling of Guardianship
MARCH 21, 2011 VOLUME 18 NUMBER 10 Rebecca Susan Blair had practiced law in Cleveland, Ohio, since 1986. When the local probate court appointed her to take over as a successor guardian (of the estate — what we in Arizona would call a conservator) early in 2005, she had a good reputation and seemed to
How To Revoke Your Revocable Living Trust. Not.
MARCH 14, 2011 VOLUME 18 NUMBER 9 Let us be clear right up front. The California Court of Appeals ultimately agreed that Steven Wayne Stoker had successfully revoked a will favoring a former girlfriend. He also successfully revoked the trust created at the same time as that original will. In a sense, our headline is
How Should Special Needs Trust Funds Be Invested?
Here’s a question that comes up frequently in our practice: how should the funds held in a special needs trust be invested? The answer should be obvious: a good investment plan for a special needs trust — just like a good investment plan for an individual — should consider the amount available to invest, the
Some More of Our Readers’ Questions Answered
MARCH 7, 2011 VOLUME 18 NUMBER 8 Two weeks ago we answered some of our readers’ frequent questions, and we solicited more. We heard from several of you with good questions of general interest. Among those (with identifying information and some details stripped out): My wife and I do not have any obvious family member
Does a Guardian Have the Power to File a Divorce Petition? In Some States, Yes
FEBRUARY 28, 2011 VOLUME 18 NUMBER 7 The issue arises with some regularity. A married couple, perhaps in their second marriage. Adult children. One spouse becomes ill — often, but not always, demented. The other spouse, unable to cope, turns the care of the ill spouse over to one of the children. That child figures
“The Dead Have Rights, Too”
We really like Tennessee lawyer Tim Takacs. His bi-weekly online (and e-mail) newsletter was one of the original inspirations for our own Elder Law Issues, and he has provided his clients and his readers with interesting, up-to-date and informative reading material for nearly two decades now. Tim’s last-week Elder Law Fax addressed an interesting topic
We Take a Stab at Some Of Our Common Legal Questions
FEBRUARY 21, 2011 VOLUME 18 NUMBER 6 We get asked plenty of general legal questions. We try to give helpful answers, recognizing that we can not give specific legal advice to non-clients (and particularly to questioners from outside Arizona, where we are licensed to practice law). Often our best answer is “check with a local
Benefits Eligibility Irrelevant in Lawsuit Over Trust Terms
FEBRUARY 6, 2011 VOLUME 18 NUMBER 5 What can a parent do to ensure continuing care for his or her adult child with a disability? That was the dilemma facing Californian Earl Blacksher in the late 1980s. His daughter Ida McQueen lived with him in the family home in Oakland. She was developmentally disabled, and
Boomers to Inherit $8 Trillion
Our good friend Tim Takacs (from Tennessee) has an interesting report this week on a recent study by the Center for Retirement Research at Boston College. You can read the report summary, and order the more-detailed paper from which the quoted information was taken, at the Center’s website.