ALZHEIMER’S CAN’T STEAL MAN’S LOVE OF THE GAME
We recently came across a wonderful article about a man with Alzheimer’s disease and his continuing passion for soccer. Most of us have seen, or at least heard of, the havoc that Alzheimer’s wreaks on the memory of its victims. This man, John, is no different; he is progressively losing the ability to remember who he is. However, he somehow remembers that he loves soccer.
John has been going to a local park twice a week, for the past 25 years, to play a regular pickup game of soccer. With the help of his wife and daughter, and the compassion of his fellow players, he still participates in every game. Although he is no longer coordinated enough to do much with a soccer ball, and may forget which team he is on, it is clear that John has a wonderful time playing and he leaves the field smiling.
We have heard similar stories from some of the wonderful facilities that we work with and applaud them and any other caregivers who help Alzheimer’s patients continue to do what they love. However, we believe that we must continue to fight for a future without Alzheimer’s disease. If you want to join the fight, it is not too late to join us for the 2013 Walk to End Alzheimer’s this Saturday, November 16, or to support the cause with an online donation.
ELDER ABUSE: A SCARY STORY FROM AUSTRALIA
In our last newsletter, we wrote about potential issues for a dutiful child caring for an elderly parent, but what about the risk that the caretaker child is neglectful or even abusive? This week we wanted to share a truly horrifying tale of an Australian woman’s failure to care for her elderly mother.
Cynthia Thoresen, as many aging widows do, moved into her adult daughter’s house when living alone became too daunting. The daughter, Marguerite, obtained a government benefit to help with Cynthia’s care, which became her only income. A couple of years later, Marguerite stopped taking her mother to doctors and filling her prescriptions. Already Marguerite is not looking like the dutiful caretaker child, but it gets much worse.
Sometime in November 2008, Cynthia fell in the house and broke her leg. When Marguerite finally called an ambulance approximately 3 weeks later, Cynthia was screaming from the pain. We will spare you the gory details of Cynthia’s condition, except to say that she had lain in bed with a broken leg and without any medical care or personal hygiene all that time. Cynthia died in the hospital a few weeks later from a blood clot caused by the broken leg.
Shockingly, Marguerite has not faced any legal consequences for her mother’s death. What is even more appalling is that she claimed to have been honoring Cynthia’s wishes by keeping her out of a nursing home. Although no plan can guarantee against elder abuse, we believe that thorough disability planning (legal, financial, and practical) can significantly limit opportunities for such horrific neglect.
“UNDUE INFLUENCE” AND THE CARETAKER CHILD
We often see a middle-aged “child” becoming the caretaker for an elderly parent. Sometimes siblings are grateful that such care is being provided. However, many times those same siblings become very unhappy if the caretaker child is left with a bigger slice of the inheritance pie, or worse yet, has become joint owner with mom on a bank account before mom’s death, so that 100% of those funds go to the caretaker child rather than being split equally under mom’s will. A lawsuit invariably follows against the caregiver child.
The question is whether we have a “dutiful” child whose sacrifices to care for an elderly parent were rewarded by a voluntary gift from mom or a “scheming” child who utilizes the close relationship to “unduly influence” mom to get the bulk of her assets. Undue influence is presumed when (i) a person with a confidential (close) relationship with the decedent, (ii) is active in procuring or securing the preparation or execution of a devise (will or other gift) and (iii) is a substantial beneficiary of that devise.
The problem, as was recognized in the recent Florida case of Estate of Kester v. Rocco, is that any child who is truly caring for a frail, elderly parent will most likely (i) have a close relationship with mom; (ii) help mom choose an attorney, drive mom to the attorney, and discuss mom’s plan; and (iii) receive a large part of mom’s assets under her plan, therefore meeting the undue influence test. However, the court in Estate of Kester said that undue influence should not be presumed when the only evidence presented was that the caregiver child had a close relationship with and often assisted his aging parent.
Although the guidelines aren’t perfectly clear, this recent case provides help for all those dutiful, caring children who want to take care of their elderly parent without worrying that they will be a target for their ungrateful siblings.
LEGISLATIVE UPDATE: BETTER PROTECTION AGAINST UNETHICAL LAWYERS
Florida attorneys have long been prohibited by our ethical rules from soliciting or accepting gifts from clients, including drafting a will or trust that names the attorney (or his close relative) as a beneficiary. The concern is that an attorney who is asking for or receiving a gift from a client has a personal stake and thus will not be able to properly advise the client regarding the transaction (what we call a “conflict of interest”). There is also the possibility that an attorney could exploit his relationship as a trusted advisor to obtain a gift from his client.
In the past, case law enforced this ethical rule by allowing an improper gift to an attorney to be challenged and, if certain things were proved, voided. There is now a new statute, effective October 1, 2013, which makes such improper gifts automatically void. This should provide better protection for clients (and their families) by decreasing the amount of time and money necessary to contest an improper gift. The statute also provides that the winner of such a contest will recover the costs and fees paid to bring the lawsuit.
Of course, both the ethical rule and the new law make exceptions for a gift from an attorney’s spouse and other close family members. Additionally, even an unrelated client can make a gift to an attorney under the right conditions. To read the full text of the statute click here.
YOU ARE INVITED: WINE TASTING TO HELP END ALZHEIMER’S DISEASE
Alzheimer’s disease is currently attacking more than 5 million Americans and remains the sixth leading cause of death in the United States. We at Cramer Law Center have seen the devastating effects the disease can have on our clients, both those who suffer personally and those who are caregivers. Some of us have lost our own loved ones to Alzheimer’s disease.
Last year, our personal encounters with Alzheimer’s inspired the Cramer Law Center team to participate in the Walk to End Alzheimer’s. We were all moved by the experience and, with your help, we raised over $600 for the Alzheimer’s Association!
We are happy to announce that we will be walking again in the 2013 Walk to End Alzheimer’s. In order to meet this year’s fundraising goal of $800, we will be hosting a wine tasting at our office on Thursday, October 24, 2013 from 4:30 p.m. to 7:30 p.m. Please join us for the wine tasting, the Walk, or both. For more information on the Walk or to make a donation, click here.
More Estate Administration Mistakes: 5.3 Million Dollar Verdict Against Trustee!
Just a few weeks ago, we cautioned our readers against do-it-yourself estate administration due to the great responsibility that comes with being a trustee or personal representative. A recent case confirming a judgment of more than $5.3 million against a trustee shows just how serious the courts are about the duties that come with these roles.
The trustee in that case was slammed by both the trial court and the appeals court for the mistakes he made. The most obvious error, and the one pointed out by the angry beneficiaries (the deceased trustmaker’s wife and children), was that the trustee paid himself $1.2 million in trustee fees … without telling the beneficiaries. However, the court also used the trial as an opportunity to examine all of the trustee’s past actions. It found other mistakes adding up to millions of dollars in damages to the beneficiaries. These included failure to fulfill basic trustee duties such as providing timely and accurate trust accountings.
The lesson to be learned is that it is crucial to be aware of, and properly perform, your duties as a trustee or personal representative. If not, you likely will not fare well in court. The trustee here could and should have avoided the lawsuit and enormous judgment by obeying the legal requirements placed on him as trustee. For the full appellate court opinion, click here.
Estate Administration: Another Do-It-Yourself Minefield
Hopefully our faithful readers all know by now that there are many hazards to do-it-yourself estate plans. What you may not know is that trying to administer your loved one’s estate without legal help is just as treacherous. It is a great honor to be named as a loved one’s personal representative (executor) or trustee, but these roles come with great responsibility and many legal duties.
Unfortunately, we recently have encountered several individuals and families who thought that they could simply read the will or trust and hand out assets without speaking to an attorney. Please do not make this mistake! If you are administering a will, you do not have the authority to handle the estate just because your name is in the document – you must be appointed by a probate court. Even if you are a trustee who manages to avoid probate court, Florida law imposes significant duties on you both when you start acting as trustee and every year thereafter. Both personal representatives and trustees may be removed and even held personally liable if they fail to perform their duties properly.
We have seen some serious legal messes created by good people who tried to do the right thing but just did not have the right advice. Don’t become one of them by trying to do it yourself – we are here for you and happy to help. For more information on do-it-yourself disasters, check out our past articles: Perils of Do-It-Yourself Estate Planning; Why Would You Risk Going to Jail Rather than Talk with a Lawyer?; IRS Gift Tax Audits: Yet Another Reason to Avoid Do-It-Yourself Estate Planning
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The Freshman 15: What Parents Need to Know Before Your Child Starts College
1) It’s that time of year…and most parents are a little nervous about a child going off to college all by themselves.
2) That’s normal! It may even be for good reason because….
3) Your child is a legal adult as soon they turn 18!
4) This means that, as a parent, you are no longer your child’s “legal guardian.”
5) You no longer have the right to make decisions regarding your child’s living situation, school, or health care.
6) You also no longer have the right to access records from your child’s school or doctor.
7) Your 18 year old “child” now even has the power to open bank accounts, borrow money, and obtain credit cards.
8) However, you have no right to review bank or credit card statements or even to be notified about the status of their accounts!
9) This can, of course, lead to some nasty surprises for parents if their inexperienced child’s spending gets out of hand.
10) There also can be serious issues if the child is sick or injured and you cannot obtain information about their health. This may also be a concern if the child travels out of the country on a break or study abroad trip.
11) The good news is you can protect your child right now with basic estate planning documents!
12) For example, a Durable Power of Attorney will give you access to your child’s finances. This will allow you to just check in or to take over if it becomes necessary.
13) As another example, a Durable Power of Attorney for Health Care allows you to step in and make medical decisions for your child if they are unable to make the decisions themselves.
14) Once you have such documents, you can even store them electronically so that any medical facility can easily access the documents. At Cramer Law Center, we partner with DocuBank, a service that stores that information and also gives you and your child a wallet-sized card with emergency contact information on it.
15) Cramer Law Center is here to help you and your child take this important step towards college preparation. Call us today to discuss our flat-fee “Back to School” plan!