Elder Law Issues
In Rare Challenge, Court Finds Revocation of Will Effective
FEBRUARY 22, 2010 VOLUME 17, NUMBER 6 The popular conception of the probate process and the making of wills is colored by misinformation from a number of sources. Movies, books and plays provide much of the misunderstanding, building an expectation of “the reading of the will” in a lawyer’s office (it just doesn’t happen), regular
DNA Test Might Be Useful To Establish Decedent’s Paternity
FEBRUARY 15 , 2010 VOLUME 17, NUMBER 5 Despite being cloaked in arcane terms and arguments, the legal system usually makes sense in the real world in which it operates. Sometimes, however, it may take the legal system a few years — or a few centuries — to catch up with that real world. One
UTMA Custodian Accountable After Beneficiary’s Majority
FEBRUARY 8 , 2010 VOLUME 17, NUMBER 4 A recent case out of Kentucky deals with a fairly arcane legal question, but it gives a chance to remind people about UTMA accounts and the rules governing them. The issue in that case: what duties does a UTMA custodian have to account to the minor beneficiary
Simplified Probate Proceeding Valid Even Though Fraudulent
JANUARY 25, 2010 VOLUME 17, NUMBER 3 The difficulty and cost of a probate proceeding can make it hard for heirs to collect small estates. Even the court filing fee can be prohibitively expensive if the decedent’s assets are very small. As a consequence most states have some sort of alternative to a full probate
Roth IRA Conversion in 2010 More Attractive For Some
JANUARY 11, 2010 VOLUME 17, NUMBER 2 Recent changes in federal regulations affecting the Roth IRA now make this retirement savings plan available to wealthier individuals. We list some of the factors to consider in determining whether to convert your existing traditional IRA to a Roth IRA – so that you can discuss the matter
Montana High Court Approves “Death With Dignity” Request
JANUARY 4, 2010 VOLUME 17, NUMBER 1 Retired truck driver Robert Baxter, a Billings, Montana, resident, was dying of leukemia. He wanted to be able to choose the time and manner of his own death, and he turned to his physicians. He asked for a lethal dose of medication; his doctors sympathized, but declined to
Court Distinguishes Between Undue Influence, Incapacity
DECEMBER 28 , 2009 VOLUME 16, NUMBER 66 Contrary to public perceptions, will contests are actually rare. In fact, few wills are written in such a way that anyone would benefit from a contest — most wills leave property to the same people who would inherit if there was no will. When there is a
Video by Exploiters Leads to Witness Tampering Conviction
DECEMBER 21 , 2009 VOLUME 16, NUMBER 65 Washington State resident Shirley Crawford, then age 80, had a difficult problem to deal with. She had fallen in 2001 and was hospitalized. Her only child, Anne, was severely mentally disabled and lived in Ms. Crawford’s home. Ms. Crawford needed someone to help her with management of
Protecting Clients From Their Own Mistakes Can Be A Challenge
DECEMBER 14 , 2009 VOLUME 16, NUMBER 64 Preparation of an estate plan is more than the individual documents. A good attorney considers the client’s circumstances and wishes, and analyzes the best course of action. The process requires the attorney and the client to communicate, and to work together. Too often, however, problems arise after
What To Do When a Family Member or Loved One Dies
NOVEMBER 30, 2009 VOLUME 16, NUMBER 63 Obviously, the death of a family member or close friend will be an emotionally charged moment. Most of us only have to endure the process a handful of times in our entire lives. That means we may be ill-prepared for what needs to be addressed, and extremely distracted
Guardian Allowed to Restrict Visitors, Telephone and Mail
NOVEMBER 23, 2009 VOLUME 16, NUMBER 62 Being appointed as guardian for another person can be a daunting challenge. The responsibility is enormous, and most guardians get little or no training other than the “on-the-job” type. The stakes — a human life — are enormous. What is the proper goal for a guardian? Is it
January Session Will Focus On Paying for Long-Term Care
NOVEMBER 16, 2009 VOLUME 16, NUMBER 61 Do you wonder what will happen if you are no longer able to live independently? Will you have to “go into a home?” Is a nursing home the only way to go, or are there other living situations that might allow more independence? What will happen to your
Lawyer Ordered to Return Funds Taken by Conservator
NOVEMBER 2, 2009 VOLUME 16, NUMBER 60 Michigan Attorney William R. Ford represented Preshus Graves, who had been appointed as conservator of her son Calvin Graves. Calvin Graves, then not quite three years old, had been injured in an automobile accident, and his mother had pursued a personal injury action against the driver of the
Some Medicare Recipients Will See a Rise in 2010 Premiums
OCTOBER 26, 2009 VOLUME 16, NUMBER 59 The Medicare program has announced its 2010 premium and coinsurance rates. As predicted, an anticipated increase in medical costs will mean a steep rise in Medicare-related premiums, but federal law protects most recipients from having to pay the new rates. One effect of changes in Medicare rate-setting over
Dispute Over Family Home Pits Children Against Stepchildren
OCTOBER 19, 2009 VOLUME 16, NUMBER 58 More than a decade ago we told you about a Utah case involving a widower’s remarriage (see Surviving Spouse Revokes Trust–Children Disinherited from February 2, 1998) . Although the children of the deceased woman and her surviving husband were supposed to receive everything on his later death, the widower
Several Factors Increase Cost Of Conservatorships in Arizona
OCTOBER 12, 2009 VOLUME 16, NUMBER 57 A reader writes: Can a conservator get a waiver from the requirement of bonding, which costs my mother’s estate over $900 per year? This, along with the $300 court fee to evaluate accountings, is a tremendous amount of money. Can I get my sister to agree that this
Estate Plan For Benefit Of “Confidential” Wife Upheld
OCTOBER 5 , 2009 VOLUME 16, NUMBER 56 Legal issues confronted by celebrities are, of course, often fodder for tabloids, late-night television and casual gossip. They also often reveal unusual legal problems, since celebrities tend to lead lives that are more complex than those of their fans. Comedian Richard Pryor’s death in 2005 is a case
Social Security Probably Won’t Have a Cost of Living Increase
AUGUST 24, 2009 VOLUME 16, NUMBER 52 According to the Trustees of the Social Security and Medicaid trust funds, it looks like the annual cost-of-living adjustment (COLA) for Social Security next year will be, well, zero. In other words retirees, those on Social Security Disability and even Supplemental Security Income recipients will see no increase
Do You Need a New Tax ID Number for Your Living Trust?
AUGUST 17, 2009 VOLUME 16, NUMBER 51 Imagine that you are trying to change the title on your bank account into the name of the living trust you and your spouse just set up. The nice lady at the bank is telling you that you need to get a new tax identification number for the
Advice On Making Health Care Decisions For Someone Else
AUGUST 10, 2009 VOLUME 16, NUMBER 50 When you name someone as your health care agent, you literally entrust them with life-and-death decisions. When you are the agent the job can sometimes seem overwhelming. Sometimes health care decisions must be made by someone who was not even designated in a power of attorney. A “surrogate”
Should There Be An In Terrorem Clause in Your Will or Trust?
AUGUST 3, 2009 VOLUME 16, NUMBER 49 You would like to make sure that your children get along after you are no longer around to tell them to behave, wouldn’t you? Although you may not anticipate any disagreements, you know that money can change relationships, and you have seen how the death of a parent
Lawyer Suspended After Filing Guardianship Petition on Client
JUNE 22, 2009 VOLUME 16, NUMBER 45 A lawyer’s job is, of course, to help his or her client to accomplish the client’s goals. Sometimes, though, the client’s capacity may be diminished, and particularly in the elder law practice. What should the lawyer do when the client seems to be vulnerable to financial exploitation, or
“Joint Control Agreement” Leads to Lawyer’s Liability
JUNE 15, 2009 VOLUME 16, NUMBER 44 Tranquilino Ventura was a child when his father died, and just fourteen years old when a lawsuit arising from his father’s death was settled. The total settlement, after costs and fees, exceeded $500,000. When Mr. Ventura turned eighteen he found out that the money was all gone. Mr.
What Do You Do After Signing Your Trust? Come to Our Class
JUNE 8, 2009 VOLUME 16, NUMBER 43 Want to learn about why you need a trust? No problem: there is a class for that, and they’ll even buy you lunch if you’ll just listen to their pitch. Want to learn whether you need a trust? It’s a little harder to locate good advice, but still there are
To Our Favorite Estate Planning Client: Please Help Us Help You
JUNE 1, 2009 VOLUME 16, NUMBER 42 Dear client: It has been wonderful working with you. We are pleased that your estate plan is completed, and simultaneously saddened that we will not be seeing much of you for a couple years. Please remember to get in touch with us if there are major life changes.
Guardian Not Personally Liable For Alleged Lack of “Due Care”
APRIL 27, 2009 VOLUME 16, NUMBER 38 Who has the obligation to get a proper Medicaid application filed for someone in a nursing home? Can the nursing home resident’s children, spouse, guardian or conservator be forced to pay for care after the patient’s money has run out but before the state Medicaid agency receives the
Some Advice About Selecting Fiduciaries For Your Estate Plan
APRIL 20, 2009 VOLUME 16, NUMBER 37 When it comes time to complete estate planning, our clients usually have clear ideas about who should receive their property, what health care decisions they would want made — even how they feel about cremation, burial, organ donation and most of the other issues that must be addressed.
Father’s Body, Moved Once, Need Not Be Moved Yet Again
APRIL 13, 2009 VOLUME 16, NUMBER 36 Is it just us, or is the incidence of family disputes over funeral and burial arrangements on the rise? A recent court case from Indiana makes us think maybe there are still more variations on a theme we thought had long since been played out. Sherman Warren died
Extra Income for Veterans and Spouses Can Help Pay for Care
APRIL 28, 2008 VOLUME 15, NUMBER 44 There is no doubt that in today’s economy some extra income would be welcome, especially if you are struggling to pay for long term care. Many people aren’t aware that the Veteran’s Administration (VA) has a special program, called “Aid and Attendance,” that pays additional income to Veterans
Court: “Massive Curtailment of Liberty” in Guardianship Cases
APRIL 21, 2008 VOLUME 15, NUMBER 43 We apologize. We like to think that we bring you the most interesting, useful and thought-provoking elder law cases, news stories and trends each week. Somehow we completely missed a great case last year. With thanks to our friend Prof. Rebecca Morgan for calling it to our attention,