Copyright (c) 2009 All rights reserved. http://works.bepress.com/carolyn_dessin Recent documents in Carolyn L. Dessin en-us Sun, 31 May 2009 04:12:56 PDT 3600 http://works.bepress.com/carolyn_dessin/8 http://works.bepress.com/carolyn_dessin/8 Thu, 27 Mar 2008 10:58:06 PDT In its classic definition, a trust is an arrangement for dealing with property in which a settlor transfers property in trust to a trustee who is to hold the property for the benefit of one or more beneficiaries. In creating a trust, the settlor sets forth the trust's dispositive provisions, which determine the interests of the beneficiaries. Because of the wide variety of dispositive plans that can be accomplished by using a trust, trusts are useful devices for the management and disposition of assets. A settlor may create a trust for any number of reasons, including: (1) a wish to support one or more beneficiaries; (2) a desire for professional management of assets; and (3) an attempt to transfer property in a way that obtains the most favorable tax treatment.There is often, however, a concern that creditors of a beneficiary will attack the assets of the trust seeking payment of claims. To address this concern, many drafters include one or more protective devices in the trusts they draft. Such techniques can be very effective in fending off creditors' attempts to reach assets held in trust.In light of the current nonsupport crisis, an important question arises when the attacking creditor of a trust beneficiary is a child making a claim for support or a former spouse making a claim for support or alimony. Should such individuals be treated differently from other creditors of the beneficiary, and should trust assets be used to satisfy those claims?Resolution of this issue must take into account a number of competing interests. The law of trusts is replete with statements that the intent of the settlor should be paramount in any question involving interpretation of the trust, so long as that intent is neither illegal nor against public policy. Often, the needs of the beneficiary are considered as well. In a situation involving a claim against trust assets for support or alimony, however, the settlor and the beneficiary against whom the claim is leveled (the debtor-beneficiary) are not the only entities whose interests are implicated. The spouse or child making a claim has an interest in enforcing a support or alimony obligation. The state has an interest in assuring that its judgments are enforced and that those who suffer as a result of nonpayment of support and alimony do not become wards of the state. Additionally, the interest of any other beneficiaries of the trust may be adversely affected by distributions of trust assets to satisfy claims against a debtor-beneficiary. Finally, the interests of other creditors of the debtor-beneficiary may be implicated.How then should these competing interests be balanced when a claim for support or alimony is made? This Article will examine the various types of protective techniques that trust drafters use to shield trust assets, explore and critique various legislative enactments and court decisions addressing the effectiveness of protective devices against claims for support and alimony, and propose a model for resolution of the issue. Carolyn L. Dessin Probate Law http://works.bepress.com/carolyn_dessin/7 http://works.bepress.com/carolyn_dessin/7 Thu, 27 Mar 2008 10:47:33 PDT The financial durable power of attorney, also known as a durable power of attorney for property management, is a creature of fairly recent origin. The estate planning bar created it to provide an effective alternative to guardianship or conservatorship proceedings when people become incompetent or incapacitated. Additionally, there was a sentiment that the wealthy had an effective way of dealing with potential disability by creating a funded inter vivos trust, and that such a device was not available to most individuals because of the prohibitive cost. Since its creation, the financial durable power of attorney has become an extremely popular planning device. Recently, however, concerns have been voiced that perhaps we have created an instrument of abuse rather than a useful tool. Sometimes the problems are as clear as wrongful misappropriation of the principal's property by the agent. Often, however, problems arise because the standards governing the behavior of agents under durable powers of attorney have never been clearly defined. In many instances, those standards have not even been considered. Legislatures, courts, and commentators have often simply assumed the application of various bodies of law without careful reflection. In light of the popularity of the financial durable power of attorney, it is surprising that there has been no in-depth consideration of the parameters of the agent's duty. There has been only the occasional sentence written, often merely noting the application of general fiduciary principles.This Article examines the history and uses of the financial durable power of attorney and compares it to the alternative property management approaches of guardianship and trust creation. It then discusses the general lack of definition of the role of the agent under the financial durable power of attorney and problems that this lack of definition has begun to cause. Finally, it proposes a role for agents that comports with the purposes underlying the creation of financial durable powers of attorney and the public's expectations about how such powers will operate. Carolyn L. Dessin Probate Law http://works.bepress.com/carolyn_dessin/6 http://works.bepress.com/carolyn_dessin/6 Thu, 27 Mar 2008 10:36:55 PDT We live in a society with rapidly changing familial norms. Statistics show that one out of every two marriages ends in divorce, and even higher divorce rates are projected. The number of people who remarry following a divorce also is increasing. Much has been written about the effect of the changing family patterns on estate planning. In the era when having only one spouse and one set of children was the norm, it was fairly simple to develop a rational system for dividing the person's estate among spouse and children. In recent decades, however, the growing number of multiple marriages has helped set the stage for a conflict that often occurs between the children from one marriage and the spouse of another.Virtually every state recognizes the validity of contracts to make wills. Some mechanism also exists in each state for protecting a surviving spouse from intentional or unintentional total disinheritance. A recurring problem arises when the rights of a promisee or a third-party beneficiary of a will contract come into conflict with the spousal right to receive a share of a decedent's estate. Often, the spouse claiming protection is a second, or later, spouse, and the contract beneficiaries are children from a previous marriage. Courts are divided sharply on who should prevail in such a conflict, and too often, the holdings appear to rest more on a desire to reach the "right" result based on the particular facts of a case than on careful analysis or consistent policy. The conflict suggests the possibility of applying a number of bodies of law: (1) contract law; (2) property law; (3) probate law, and (4) family law. Courts have used some or all of these in resolving this type of conflict. This Article explores the conflict in the context of the policies underlying recognition of validity of will contracts and protection of surviving spouses. The Article proposes a rationale for resolving this difficult and important issue. Before considering the soundness of the case law, it is useful to examine the history and use of will contracts and the structure and purposes of spousal protection. Carolyn L. Dessin Probate Law http://works.bepress.com/carolyn_dessin/5 http://works.bepress.com/carolyn_dessin/5 Thu, 27 Mar 2008 09:51:05 PDT As baby boomers age, we seem to be thinking more and more about the concerns and needs of the older American. From retirement communities that sprout like weeds to ubiquitous Viagra ads, the national attention increasingly seems focussed on the aging population.One outgrowth of this increased attention to elder issues is a growing awareness of elder abuse. This problem went virtually unnoticed before 1975, when various organizations began studying it. Now, discussions about elder abuse take place with increasing frequency, and one hears frequent calls for action to prevent or remedy the problem. Although there are few attempts to catalog incidences of abuse, those that have been done have had staggering results: estimates show that about one and one half million adults are abused each year. As a result of this dialogue about elder abuse, states have moved to give increased protection to their older citizens. This protection has taken a number of forms. Many states have enhanced their adult protective services or created special law enforcement units to address problems of elder abuse. Some have appointed task forces to study the problem. Perhaps most important for the family lawyer, many states have enacted, or are considering enacting, statutes that deal directly with abuse of the elderly. This article will examine those statutes that address financial abuse of the elderly and the impact that such statutes have on the practice of matrimonial law. Carolyn L. Dessin Domestic Relations http://works.bepress.com/carolyn_dessin/4 http://works.bepress.com/carolyn_dessin/4 Thu, 27 Mar 2008 08:20:14 PDT The American population is aging rapidly. Roughly thirty-five million Americans are now age sixty-five or older, and that number is projected to rise to forty million in 2010. With this changing demographic comes an increasing awareness of the potential problems that face aging Americans.It is estimated that the number of elderly adults abused each year is nearly one and a half million. Most of the abusers are family members. It is also estimated that five percent of elderly persons will suffer some form of abuse in the coming year, and that one out of every four elderly persons will experience abuse or neglect at some time. Sadly, a recent federal study shows a marked increase in incidences of abuse. This disturbing trend has led to a number of calls for action to prevent elder abuse of all kinds. In October 1998, Health and Human Services Secretary Donna E. Shalala announced the creation of the National Center on Elder Abuse. At the same time, President Clinton called for legislation reauthorizing the Older Americans Act. Awareness of elder abuse has arisen fairly recently. Many cite the rising awareness of child abuse in the 1960s and spousal abuse in the 1970s as the genesis to the relatively recent recognition of elder abuse. A number of studies suggest that the problem had previously gone unnoticed. One of the most frightening problems facing the elderly is the possibility of financial abuse. For at least several decades, we have discussed and attempted to deal with the problem of physical abuse or neglect of the elderly. Only recently, however, have we begun to consider the issue of financial abuse. This is likely the case because the earlier dialogue on child abuse centered on physical and psychological abuse and because financial abuse is almost never an issue when a child is the victim and infrequently an issue when a spouse is the victim.Although a recent national study of elder abuse indicates that financial abuse is somewhat less prevalent than physical abuse, there is still much cause for concern. Financial abuse can be as devastating to the quality of life of an individual as physical abuse. The likelihood that an elder person's income is relatively fixed may make it extremely difficult to recover from a financial loss. Additionally, the difficulty of detecting financial abuse suggests that it may actually be more widespread than physical abuse.The fact that approximately seventy percent of all funds deposited in financial institutions are controlled by persons age sixty-five and older makes senior citizens prime targets for those desiring to take financial advantage of someone. Additionally, seniors may be isolated due to their lack of mobility. As one conservator put it, "[i]t just seems like when times get tough, old people are easy money." Virtually everyone who has considered the issue of financial abuse of the elderly sees reason for concern. Tom Zlaket, Chief Justice of the Arizona Supreme Court, stated that there have been enough instances of financial abuse to merit concern, even though the practice is not widespread. The practice, however, does appear to be spreading as indicated in Massachusetts, where almost one-half of the cases of elder abuse serious enough to require reporting to district attorneys involved financial exploitation. The purpose of this article is to discuss the types of financial abuse and to examine various possible means of alleviating such abuse. Carolyn L. Dessin Elder Law http://works.bepress.com/carolyn_dessin/3 http://works.bepress.com/carolyn_dessin/3 Thu, 27 Mar 2008 08:09:32 PDT As a population, we are aging rapidly. With this phenomenon has come an increasing interest in the problems of older Americans. Early studies of elder abuse in the 1970s began a dialogue that continues with increasing vitality. This dialogue has prompted states to attempt to prevent, remedy, and punish elder abuse in a variety of ways.Although all of the early studies and most of the current studies focus on physical and psychological abuse of the elderly, there is a growing appreciation that financial abuse is a serious problem. Accordingly, many states have attempted to remedy financial abuse, often called "exploitation," as part of a statutory framework designed to improve the living conditions of older citizens.This article will discuss the often vague definition of financial abuse with a goal of suggesting a more workable definition of the problem. It will then examine the various statutes directed at financial abuse of the elderly and the case law interpreting those statutes. Finally, it will examine the weaknesses of many states' approaches and suggest a model for addressing abuse that is both effective and free of ageist stereotyping. Carolyn L. Dessin Elder Law http://works.bepress.com/carolyn_dessin/2 http://works.bepress.com/carolyn_dessin/2 Thu, 27 Mar 2008 07:57:42 PDT Estate planning is a field in which attorneys often represent members of the same family of different generations. This frequently leads to situations in which the family members have conflicting, or at least potentially conflicting, financial interests. Unfortunately, attorneys sometimes do not recognize the difficulties that such conflicting interests may cause until a full-blown fight develops between members of the family. At that point, the attorney may find himself open to a disciplinary complaint or a malpractice action, or, at the very least, a group of unhappy former clients.Special concerns arise when one or more of the family members is in a declining physical or mental state as a result of aging. In that instance, an attorney must be even more sensitive to representing all of his clients zealously and avoiding conflicts of interest between his clients.In a related vein, an attorney is often faced with a situation where an older person is brought to talk with the lawyer by a younger family member. Perhaps because of declining abilities, older clients are more likely than younger clients to be accompanied to the lawyer's office by family members. These visits can raise issues of joint representation and loyalty to the client. Even when the situation is not technically a "multi-generation" representation, the issue of "multi-generation consultation" can also raise professional responsibility concerns. This last concept has not been the subject of much discussion in the extant literature, perhaps because it is only partly addressed by the Model Rules of Professional Conduct. This article will first examine the rules of professional conduct that govern multi-generation representation and representation of clients who may be impaired. It will then examine some of the case law dealing with situations in which multi-generation representation caused problems for both the attorney and the clients. Next, this article will explore the data about the aging process and loss of capacity with a focus on representing older clients. Finally, it will analyze several hypothetical situations with the goal of adequately representing clients' interests while avoiding potential difficulties. Carolyn L. Dessin Elder Law http://works.bepress.com/carolyn_dessin/1 http://works.bepress.com/carolyn_dessin/1 Mon, 22 Oct 2007 09:54:26 PDT Exploitation of older persons is a growing problem in America. As a result, our legal and social systems are struggling to develop structures that will prevent, remedy and punish instances of abuse. From all indications, financial abuse is becoming increasingly common, and can be devastating to its victim. States have enacted a wide variety of statutes aimed at alleviating financial abuse. There are two relevant bodies of law: a state's protective services law and the state's criminal law. Although one may normally think of the purpose of the criminal law as deterring and punishing crimes, and the protective services law as protecting a state's vulnerable citizens, the two bodies of law are frequently closely intertwined in this area. Thus, a law enforcement officer may have a duty to notify the appropriate protective services personnel of suspected abuse and the protective services worker may have a duty to report suspected abuse to law enforcement.Each state has a mechanism for protecting vulnerable citizens. Thus, a state will have some agency charged with protecting the interests of those who need protection. Additionally, each state has a mechanism to allow a court of proper jurisdiction to appoint a guardian for the estate of a person who is adjudged incompetent. These protective arrangements intervene when a person is likely to be taken advantage of by others, but only after the protective services personnel learn of a potential problem.With respect to criminalizing exploitation, states have taken a variety of approaches. Some states specifically criminalize financial abuse of the elderly. Others rely on criminal statutes of general application to proscribe exploitation. Still others use the age or vulnerability of the victim as a sentencing enhancement. In addition to the statutes proscribing exploitation, many states have chosen to impose a duty to report suspected abuse. This is an attractive addition to the arsenal of weapons to combat exploitation. The rationale underlying these reporting statutes is simple: many more cases of abuse are likely to receive the attention they require from law enforcement and protective services agencies if we impose a duty to report suspected abuse to one or both of those agencies.There has been some discussion about the effectiveness of mandatory reporting statutes. Some see them as an important tool in remedying elder abuse while others see them as relatively unimportant because failure to report is seldom prosecuted. Regardless of the actual efficacy of such statutes, they exist in many jurisdictions. This Article will therefore put the efficacy issue aside and focus on whether an attorney can and should report suspected abuse under a mandatory reporting statute.Part Two of this article will examine the various states' approaches to mandatory reporting of abuse. Part Three will explore the various states' rules governing attorney conduct. Part Four will analyze the interaction of the mandatory reporting provisions with the rules governing attorney conduct. Finally, Part Five will discuss whether requiring attorneys to report suspected elder abuse is desirable. Carolyn L. Dessin Elder Law