Sunday, June 22, 2014

Dead Man Standing

Dead Man Standing in Puerto Rico.
Murdered boxing champ posed by family.
This comes to us straight out of New Orleans. The story about families posing their dead at funerals was below the fold in today's Sunday NYT, yet this only-in-America tale still caught my eye.

The practice was bound to go viral at some point; leave it to the Big Easy.  The Charbonnet-Labat Funeral Home staged its second dead sit last Thursday when Miriam Burbank, deceased, was posed in her home, sitting at her kitchen table, beer glass in one hand, cigarette in the other.

New Orleans has always had a flair for funerals; think the colorful Creole funeral "parades".  But this is something altogether different; so different that the director of the 132-year old Charbonnet-Labat Funeral Home recently has been criticized for the practice by other funeral home directors who say the practice is improper, sacriligious, tasteless, immoral, and borderline illegal.

The rite of sitting or posing the dead began only very recently with a little Caribbean influence from San Juan, Puerto Rico in the Greater Antillies.  While the first cadaver poses took place at wakes around San Juan in 2008, by 2012, a law was passed in Puerto Rico formally legalizing the rite, provided the pose does not depict "immoral" conduct.  Well, we here at the electronic probate attorney find that qualification refreshing.

Whether the practice is legal here in Michigan or other states is questionable. If the rite catches on, or goes viral like Ms. Burbank in her kitchen, with her beer and cigarette, then the law will catch-up with it.

Defenders of the practice within the funeral industry point out they only execute "poses" at the very specific direction of the deceased's family; apparently the pose is what the deceased wanted, and perhaps made his or her wishes known.

As a matter of good probate estate planning, it is a "best practice" to include a specific clause in your will expressing whether, for example, you wish to be cremated, buried, or, posed before internment.

Here are some examples of rites of sitting the dead featured in the NYT article:
  • A paramedic posed behind the wheel of his beloved ambulance; 
  • A man sitting Indian-style, dressed like Che Guevara, with a cigar in hand; 
  • A gambler posed at the wheel of his beloved Cadillac Seville, deck of cards in hand; 
  • An elderly deceased woman greeted guests to her wake from the comfort of her rocking chair; 
  • A 20-something murder victim was bolted to the wall, overseeing his wake; 
  • Big Easy band leader Lionel Batiste stood with his cane, hat tipped to one side.
Death is in the eye of the beholder.  Should a family respect the decedent's wishes, even when they careen out of the bounds of decency?

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Sunday, May 25, 2014

Dad's Memo Prevents Daughters From Getting Disinherited by Step-Mom

A secret memorandum that a concerned father passed to his daughters some 13-years prior to his death may have saved their sizable inheritance.  The memo was a key piece of evidence in resolving a trust dispute where the step-mother had exercised undue influence to claim her wealthy husband's entire estate, worth an estimated $5 million.

The identities of the parties to the case were kept private by the Michigan Lawyers Weekly, a newspaper that this Blog subscribes to in order to keep-up with probate legal trends and changes in the probate laws.  Some of the facts, however, are known, and they are instructive in combating this type of overreaching greed.

Apparently, the decedent knew what type of woman he married, taking steps to warn his two daughters that their step-mother may try to get him to sign away his estate from them to her when he was in a physically weakened state.  And this is just what the step-mother set out to do; we've seen this movie before here at this probate blog.

In this case, evidence surfaced in the probate court that step-mom exerted undue influence to re-write the decedent's trust such that half of his estate was transferred into her trust, with the decedent's daughters being only contingent beneficiaries on the other half; the step-mom was in control of the entire estate and could leave the decedent's daughters with nothing.

Our friend, probate attorney Alan May, uncovered a paper-trail of evidence on behalf of the decedent's daughters that demonstrated step-mom knew her husband, "could be pressured to sign things."  The paper-trail also yielded documentation between step-mom and her lawyers, plotting to defend against the inevitable "undue influence" challenge.

Perhaps the most significant and compelling evidence produced by Mr. May was a manipulated version of a keep estate planning document that was changed after the fact [i.e. after its execution] that modified significant terms in step-mother's favor.  When the document was compared to the original, the special pagination that probate lawyers use was not present, although it was on the original.  Busted...

The result of Mr. May's fine effort was a settlement that put $2.6 million into the daughter's coffers; an amount equal to able one-half of the decedent's estate.

If you are concerned that a loved one or family member may have fallen victim to undue influence, it is best to seek the advice of a probate attorney as soon as possible.  That way, preventative steps can be deployed or, as in this case, evidence can be brought to bear to expose the malfeasor, preventing unjust enrichment and producing a more favorable and just outcome.

A decedent's wishes must be honored, and another family member's greed should not affect the outcome of an estate plan.

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Monday, April 28, 2014

Decedent's Second Wife Forges Will and Revocation of Prenuptial Agreement

In a recent East-side case from Macomb County, two sons challenged the claims of their deceased father's second wife.  The case was sufficiently contentious to wind-up being tried before a jury in Macomb County Probate Judge Carl Marlinga's courtroom.

The couple had been married only five years and had executed a prenuptial agreement prior to their nuptials.  Wife claimed her deceased husband revoked the prenuptial agreement, and changed his will to favor his wife over his sons, but the jury found that she forged the revocation and exercised fraud and undue influence in the execution of the revised will and estate plan.

The sons' claims were that following a debilitating heart attack in 2007, their father's sizable estate was systematically depleted by his second wife.  The sons demonstrated that wife wire-transferred over $340,000 to her family in the Ukraine without her husband's knowledge.

The jury trial in this case took 3-weeks and resulted in a verdict for the estate of nearly $500,000.  With human nature being what it is, you just can never be too careful when a stranger links up with a beloved and well endowed family member.

There is indeed a fine-line between meddling in an elderly family members financial and private affairs, and protecting the loved one from financial abuse, greed and graft.  Keep a close eye on your loved ones folks.

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Wednesday, April 2, 2014

Michigan Legislature Addresses Digital Estates

It's a start.  The Michigan legislature now has a raft of bills assigned to the all-encompassing Judiciary Committee that would amend our current probate code to provide for handling of a deceased person's so-called digital assets.

Digital assets would include electronically stored photos, Facebook, iTunes, eTrade, data collections of any type, even including a person's email accounts.  If the bills pass, a personal representative could petition a county probate court for assess to these accounts.

Some legal experts, however, see problems with a conflict of laws.  Even if our state probate code, the Estates and Protected Individuals Code, is amended to provide for a personal representative's access to digital assets, federal laws prohibit such access by anyone other than the account holder.

In addition to complications from the federal Stored Communications Act, many of the specific terms-of-service for accounts prohibit access to a particular account by anyone other than the original account holder. There are also concerns arising from user consent to such disclosures in the privacy law context.  So the experts smell complicated litigation arising from the effects of these digital asset bills.

The proposed legislation also contains a provision that allows an interested party to file a petition seeking to limit or eliminate the power of the personal representative over the digital assets.  If the decedent has implicated family members in some of the electronically stored data, the situation is certainly ripe for some digital probate litigation.

So we will site back and see just where this legislation goes.  Stay tuned for future developments.

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Sunday, March 2, 2014

Recently Deceased Celebrities Demonstrate Importance of Estate Planning

Paul Walker: Died too young, but with a trust.
Over the past few months, Paul Walker and Philip Seymour Hoffman both died in sudden and unexpected ways.  The latter, from an apparent overdose of heroin in January after decades of straight living; the former, ironically, in a flaming high-speed car crash last November.

At the time of his death, Walker had just turned 40; Hoffman was 46.  The untimeliness of the men's deaths left their respective movie projects incomplete.  Walker will appear posthumously in a futuristic thriller, Brick Mansions, set in Detroit, but his Fast and Furious sequel #7 scenes had not been completed at the time of his death. Hoffman will have to be written-out of the Hunger Games trilogy.

The untimeliness of the stars' deaths also highlights the importance of proper estate planning.  A comparison of the actors' estates -each worth well over $30 million- is instructive with regard to basic estate planning principles.

Last Will versus a Revocable Living Trust.
A proper estate plan, even for persons with a modest estate should include both a trust and what is known as a "pour over" will.  A trust is a private instrument while a will is a public instrument.  A trust, if funded properly, avoids a public probate process.

Walker had the foresight to execute a trust way back in 2001, when he was starting to hit it big in Hollywood in his break out role in the Fast and Furious series.  Hoffman, on the other hand, did not have a trust; merely a simple will.  Therefore, his entire estate will need to be probated because he died with a will and not a trust.  Hoffman's assets cannot be disbursed until they are probated; this process will cost money through probate and attorney fees, and will take time.

Funding the Trust.
When a trust is executed, it is simply a piece of paper unless properly funded.  Think of your trust as an empty bucket.  To fill that bucket with the assets from your estate, each asset must be re-titled in the name of your trust; otherwise, they will be probated in accord with your "pour-over" will; a document designed to catch any asset in your estate that may have been inadvertently left outside the trust.

An estate planning lawyer can help with timely funding your trust.  To be most effective, a trust should be fully funded during your life.

A warranty deed can be executed to transfer the ownership of your home, for example, from you as an individual, to you as the trustee of your revocable living trust.  Your financial advisor can assist you with re-titling your brokerage accounts into the trust with a medallion certificate.

Updating Your Estate Plan.
After important life-events, it is critical to update your estate plan.  For example, when you have additional children that were not born at the time you initially executed your estate plan, you should update.  Or when you become married, and your estate plan was executed when you were single.  The death of a spouse is another crucial time when an estate plan should be re-examined.

In Hoffman's case, his will was nearly a decade old and only referenced the oldest of his three children.  Similarly, in Walker's case, his trust was over a decade old.  Hoffman's oversight will now cause his oldest son to be treated differently than his two younger children to the extent that the oldest inherits his share through his mother, while the younger children will receive a direct inheritance.

Probably not what the actor intended; his younger children, still minors, take a direct inheritance while his oldest, also a minor, gets his money through his mother.

These are just some of the basics.  In order to properly plan your estate, you should make an appointment with an estate planning attorney.

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Sunday, February 2, 2014

Guardians Can Now Execute DNR Orders

As a Public Administrator, a professional fiduciary serving Oakland County, the issue of executing a DNR order [Do Not Resuscitate] continually arises in my law practice.  The issue has been politically charged for years.

DNRs have been governed until this week by the "Do-Not-Resuscitate" Procedure Act.  The DNR Act is now supplemented by Public Act 155; passed last November and taking effect tomorrow.

Here is the crux of problem faced by court-appointed fiduciaries and care facilities:

On the one hand, the Estates and Protected Individuals Code [EPIC], Michigan's probate code, in the chapter on Guardianships, indicates that the guardian must take necessary steps to respect the protected individual's wishes, and to provide them with proper medical care.  Guardians have been guided by an ethics opinion issued by the Attorney General in 2003 that proscribed fiduciaries from executing a DNR order relative to their wards, unless such an order was issued by the probate court.

On the other hand, in many cases, licensed care facilities that receive incapacitated individuals require that the protected individual have an executed DNR before they will accept the  person into their facility.  Meanwhile, the hospital wants the recuperating individual discharged to the care facility asap given the exorbitant per diem costs of care.

The care facility, especially in terminal cases, does not want to incur the cost to administer the inevitable ER run back to the hospital in a few days, or even hours, of a ward's return to the facility.

Procedural Problem: getting before a probate judge on a petition for authority to execute a DNR order takes 14-days, unless you can convince the court that your specific circumstances constitute an "emergency".  Often, the hospital's fiscal pain does not equate to an emergency in the court's eyes.

In one recent case that this Public Administrator experienced, I visited my ward in an area hospital who was in the throes of terminal kidney failure and was non-communicative; there was no advanced directive [living will].  The hospital wanted her gone; her former care facility would not take her back without an executed DNR.

My staff immediately petitioned the court but we were unsuccessful in obtaining an emergency hearing date thus, we began a 14-day wait period during which the ward died.    Our objective was to provide our ward with the most comfortable and dignified setting possible.  Anyone would agree that was not on the floor of a hospital.

The new law allows a guardian to execute a DNR order outside a hospital setting, provided the protected individual's treating physician also signs the order.  In our recent case, the ward's former care facility would have taken her back if I would have had the authority to execute DNR without first seeking court approval.  Now, guardians have that power, provided the decision is endorsed by the treating physician.

The legislative analysis summarizes the new law as follows:
  • Expands the power and authority of a Guardian to execute or revoke a DNR order; 
  • Revises the definition of a DNR order to make such an order applicable to all places outside a hospital; 
  • Provides for the voiding of a revoked DNR order, not for the destruction of such an order [i.e. the word "VOID" is to be stamped on each page of the DNR order];
  • Revises the information that is required to be on the DNR order; and 
  • Requires a Guardian Ad Litem to advise the allegedly protected individual that is the subject of a guardianship proceeding that an appointed Guardian will now have the power to execute a DNR order on behalf of that individual.
Prior to becoming law back in November, the bill received broad support from probate judges, the probate bar, Michigan Right to Life, and a broad mix of lobby groups.  For non-related court-appointed fiduciaries, this new law is a welcome improvement to how things were done in the past.




Monday, September 23, 2013

Guardianship Bills Seek to Prevent Elder Abuse

By:  Timothy P. Flynn

An adult guardianship is a probate court proceeding that protects an individual that cannot take care of his own affairs by appointing a fiduciary -a guardian or conservator- to care for the incapacitated individual.  In our free-society founded on individual liberties, guardianships although disfavored as a legal status, are sometimes necessary to protect individuals made vulnerable through age or mental illness.

As a Public Administrator, I have served the Oakland County Probate Court by accepting appointments as the guardian and conservator for individuals deemed by a judge to be incapacitated, but who do not have suitable family members to serve as their fiduciary.  Currently serving as guardian for just over 75 protected individuals, and for hundreds over the past decade, I have acquired vast experience in dealing with all aspects of adult guardianships and conservatorships.

Two weeks ago, companion bills were introduced in the Michigan Senate to amend the guardianship provisions of the Estates and Protected Individuals Code -Michigan's probate code- to adopt the Uniform Guardianship Jurisdiction Act.  The companion bills seek to restrict the subject matter jurisdiction of the county probate courts by adopting a complicated three-tier test to ascertain the allegedly incapacitated individual's contacts with the forum state prior to granting a guardianship.

Under the present probate code, a guardianship can be granted for any incapacitated individual physically present in Michigan.   One benefit touted by supporters of the Senate bills is prevention of conduct known as "grannysnatching" whereby a person takes a vulnerable individual into Michigan from another state and immediately files for guardianship in order to control the person's income and assets, and to prevent contact by other family members.

If adopted, the Senate bills would revise our guardianship act, making the initial establishment of a guardianship much more difficult, and complicated.  Under the present guardianship procedures there are effective safeguards already in place.  For example, prior to the establishment of a guardianship, a Guardian Ad Litem is appointed by the probate court to function as the "eyes and ears" of the court; to investigate the guardianship petition and make a recommendation to the judge.

Also, under the present law, all "interested persons" -other family members- must be served with a copy of the petition and can appear at the hearing on the petition and object to the guardianship or to the appointment of the nominated individual.  Such notice provisions, along with the GAL's report to the probate judge, operate as an effective set of safeguards against cases of reprehensible "grannysnatching".

We here at the Law Blogger see these companion bills, SB 465 and SB 466, as more trouble than they are worth.  If adopted, probate court staffs across the state will need to absorb and digest the complex provisions of the Uniform Guardianship Jurisdiction Act and the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act; this will require staff training and increase the administrative costs associated with the delivery of these public services.

Such cost and complication will come just as the Oakland County Probate Court has managed to trim staff and control expenses to stay on-track with Oakland County's perennially-balanced budget; a rarity in this day and age, especially considering that the services provided by the probate administrative staff have remained first-rate.

For these reasons, we say "no" to the companion bills and urge the Michigan Senate to leave well enough alone.  The present guardianship system in Michigan is not broken thus, it does not need to be "fixed" by a uniform act.

Related Note:  A documentary on elder abuse titled, Last Will and Embezzlement, was profiled in today's Freep.  The film, which takes a look at the ways criminals take advantage of the elderly, is playing in Clinton Township and West Bloomfield.

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