The Basic Stages of Life

There are three basic stages of life when contemplating estate planning.

1. Individual is alive and mentally competent



2. Individual is alive and mentally incapacitated



3. Individual has died

Each of these stages is handled differently.

Individual is alive and mentally competent
When an individual is alive and mentally competent, estate planning documents can be in place, but most likely the documents are sleeping (or not being used) during this stage of life.

Individual is alive and mentally incapacitated
When an individual is alive but mentally incapacitated, there are certain estate documents that if prepared ahead of time allow family members to step in and begin acting on behalf of the incapacitated individual. The kind of documents that might be prepared for this stage of life are:

• health care power of attorney



• medical directive (pull-the-plug)



• health care directive



• financial power of attorney



• do not resuscitate (In Utah, an individual can only obtain a DNR by contacting a physician and filling out the DNR with the physician.)

If these documents are not in place before an individual becomes incapacitated, family members will go to court to obtain conservatorship or guardianship appointment in order to act for an incapacitated person.

Individual has died
When an individual has died, any powers of attorney used during incapacity becomes void and family members must turn to any will or trust that has been established to deal with this stage. If an individual has prepared a trust and/or will, family members can begin the process of accessing assets, paying bills, and distributing assets to the beneficiaries of the deceased person. If the person dies without estate documents in place, most likely the family members will need to go through probate to obtain authority to access and distribute any property of the deceased person.

In contemplating estate planning, it is important to be aware of the three stages of life and prepare for each stage.

We'll restore her rights as soon as we spend all her money

By way of Wills, Trust and Estates blog is this story from the Star Tribune in Minneapolis with the tagline "An Excelsior woman joined the growing ranks of Minnesotans who lose control of their finances to lightly regulated guardians."

Last month, a state study concluded that the system has inadequate procedures for dealing with complaints, evaluating a ward's well-being and keeping track of money.

Peggy Greer became addicted to morphine after a back injury. Her daughter petitioned for co-guardianship with her brother in July 2004. A home health care worker checked on Greer and found her malnourished and dehydrated and she was removed to a hospital. The family agreed that a third party should take over the decision making. A professional guardian was assigned.

Greer broke her chemical dependency and regained her capacity, but was unable to break the bonds of conservancy.

During that two-year guardianship, she claims her assets were were wasted, they spent her money (over $600,000) and took a reverse mortgage out on her house, plus she ended up paying for everyone's attorney fees as required under Minnesota law.

The reporter writes:

"In the spring of 2007, the guardian no longer opposed having her rights restored. The change coincided with the fact that Greer's assets had been exhausted."

Phoebe Gives Up?

The supervision of Phoebe Hearst Cooke’s care and estate is now in the hands of her twin brother and her nephew. It took 'em almost a year, but they finally did it. Judge Teresa Estrada-Mullaney ruled, based on written reports, that Cooke is paranoid and suffers from significant cognitive impairment and is thus unable to care for herself or protect herself against potential fraud.

Reporting from San Luis Obispo'sNew Times

"Cooke’s court-appointed attorney Martha Spalding mounted no obvious defense. She offered no opening statement, rebuttal, or witnesses in the case, allowing a confidential report to the judge to represent her position. She declined to comment after the decision.

Cooke herself, in interviews, had said she was not happy with her defense and felt she had no control over the processes. She made numerous attempts to hire her own attorneys, without success. More broadly, while she had said she needed more help than she had been getting under the county’s control of her estate, she did not want her brother and nephew to have control over her estate and personal life."

It's impossible to know with what limited reporting has been done, but I hope the right thing has happened.

Phoebe Speaks

Phoebe’s side is being told in an article by a San Luis Obispo magazine called New Times. It's a fascinating look at the woman, and anyone who is following her story should read the article.

Phoebe cook is one of the wealthiest women in the world, but has no access to her estate, which is under the control of a county-appointed conservator. The conservator arranged a monthly stipend, which Cook rejected. She doesn’t trust the bank where the account was opened, and there are a lot of co-signatories. She doesn’t like the thought of all those people watching every dollar she spends.

She worries about her mail being open, phones being tapped, her apartment being bugged. These worries have led her family to be convinced that she is delusional. Doctors, according to court documents, have concluded the same.

She is speaking to the press, even calling the New York Times, to get her side of the story out.

She wants out of San Luis Obispo County and wants to go to San Mateo County where hse considers a residence in Woodside, to be her official address.

She wants court hearings open to public view.

She wants an accounting of her estate since conservatorship began.

She complains that attorneys are acting in her interest and she has no control over their actions.

She was outraged that her prized quarter horses are being sold.

In court documents, county attorneys said the roughly 100 horses needed to be sold because they were costing the estate $100,000 a month (Ms. Cook is worth a couple of billion dollars).

She acknowledges that she needs some help, but admantly does not want her twin brother to control her estate.

She says allegation that people have taken advantage of her to the tune of $20 million dollars are false. She says many of the people she relied on for services, including to care for her horses, subsequently found themselves under suspicion of bilking her.

The interviewer found Cook to be articulate, responsive, and sharp-minded, and engaged in her current fight.

Connecticut Officials Choosing Corrupt Outdated Probate System over Reform

Apparently the much needed probate reform in Connecticut has stalled.

From Rick Green Only in Connecticut

Hartford lawyer Peter Costas had this to say in a commentary in today's Courant:

The present system is the last bastion of patronage and cronyism in Connecticut. Probate judges can appoint their friends and supporters as guardians, conservators, etc. Probate judges can provide campaign contributions to legislators in the hopes that they will support their position. As a result, legislators may block efforts to reform, if not abolish, the probate court.

There are 117 probate courthouses - about one for every 30,000 residents in the state. The reformers, which includes the governor, want any contested conservatorship moved to the Superior Court where the judges have to be qualified, unlike probate judge appointees. The Connecticut courts have imposed conservatorships in at least three cases that were outrageous and sparked this latest push for reform.

No Peers

Sealing Guardianship court proceedings? That's scary business. Guardianship can completely strip all individual rights from a person. It is completely discomforting that the proceeding could be done, in whole or part, away from the view of the press and public.

George Hearst Jr. asked San Luis Obispo Superior Court to seal information regarding his twin sister Phoebe Cooke Hearst, and his efforts to take conservatorship of her estimated $2 billion estate.

The first time he was rejected; the second time the judge made a tentative ruling on to redact or seal from the public information on a case-by-case basis.

Cooke's brother claims that she is unable to handle her finances making her prey to elder abuse.

Cooke, whose husband Jack died in September, has fought the actions to take over her estate, saying her brother and the others do not have sufficient facts to prove she is mismanaging her assets or that she is being financially abused by others, according to her court filings.

In an interview with The Tribune, Cooke told them that she does need financial guidance now that her husband is dead, but is completely against her brother fulfilling this role. They have had a strained relationship for years.

She also told them that she wished "the court proceedings and resulting information be open to the press to help her receive a fair hearing."

No Conservatorship, but maybe you can visit

A judge refused to establish a conservatorship for Peter Falk on Monday. For much of the hearing, the judge seemed inclined to rule against Catherine Falk and allow Shera Falk, the actor's wife of more than 32 years, to continue to manage his care and affairs. However he has scheduled testimony to decide whether court intervention is necessary to allow visits between the ailing actor and his daughter, according to the Associated Press.

Fight for Falk Continues

Looks like the Falk conservatorship dispute isn't settled at all. Daughter Catherine Falk argues that a conservatorship is the only way to prevent the actor's wife from blocking her regular visits.

She claims there has always been some resentment felt by Falk's wife towards his two daughters who were adopted when the actor was married to Alyce Mayo. Alyce Mayo defends Catherine's position. Another declaration was submitted by a personal assistant to Mr. Falk from 1968 to 1981 that he always maintained a relationship with his daughters, even after he remarried. She claims that there was some resentment from his new wife so the visits took place at Mayo's home or in public places.

Uniform Guardianship law for the states

On March 17, 2008 Utah became the first state in the country to enact the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA).

The uniform act addresses the issue of jurisdiction over adult guardianships, conservatorships, and other protective proceedings. The objective of the uniform act is to ensure that only one state has jurisdiction at any one time. The act contains specific guidelines to specify which court has jurisdiction to appoint a guardian or conservator for an incapacitated adult by prioritizing the states which might claim jurisdiction.

If the priority states decline jurisdiction, or if the individual has no home state or "significant-connection" state, then another state may claim jurisdiction. The act provides that once a court has jurisdiction until the proceeding is terminated or transferred.

The act also provides procedures for enforcement or transfer of guardianship proceedings from one state to another.

Because there are more than fifty guardianship systems in the United States, problems of determining jurisdiction are frequent.

The Alzheimers Association lays out scenarios where current law is inadequate.

#1 If an adult child is granted guardianship in one state and has to move to another state that guardianship may not be recognized and the whole process has to be done again.

#2 If an adult child finds an elderly person in distress in a state where they live only part-time (snowbirds) that state may refuse jurisdiction. If the adult child lives somewhere other than the parents "home state," that adult child would have to go to the parent state for the order, which then may not be recognized in the state where he lives. The UAGPPJA allows state courts to communicate with each other to avoid situations like this and determine the best jurisdiction.

#3 A Utah woman falls and breaks her hip. She and her daughter decide that she should stay with the daughter who lives in Colorado while she recuperates. While there, her daughter realizes her mother's worsening cognitive state. Utah and Colorado have both passed the UAGPPJA so the Colorado Court can talk to the Utah Court to see if anyone has petitioned there. If Utah finds that no petitions have been filed, the state can give Colorado jurisdiction, even though Utah is the home state.

So far the bill has been adopted only in Alaska, Colorado, Delaware, District of Columbia, and Utah. Fourteen other states have introduced bills for consideration this year.

For real life demonstrations, nothing has made it more clear than what's called the Hotel Connecticut, here and here.

Rick Green - Connecticut's Caped Cusader

CT Confidential

Margot Claus, owes the court who wrongfully imprisoned her almost $1,000 according to Rick Green at the Hartfort Courant. The woman who was not a resident of Connecticut got tied up in the state probate system and had to be rescued German relatives.

Women's Cases Cry Out For Probate Reform from Rick Green at The Hartford Courant


There have been allegations of incompetence, corruption, and bribery that Green reports allows all kinds of people to make money off an old or ill person's estate. His probate blog posts are here.

Connecticut has a 300 year-old probate bureaucracy that runs 117 different courthouses and 117 judges. It does not allow jury trials and judges do not have to have training in the law. Courant columnist Rick Green has followed closely the stories of people caught up in the system and unfairly stripped of their rights. This reporting has finally paid off this year as Connecticut's Governor has introduced probate reform that will require probate judges to be members of the bar and consolidate the 117 courts into 36 courts corresponding to the boundaries of state senatorial districts.

She'll spend it, her way.

Heart Ranch - San Luis Obispo County California

A Conservatorship battle for Phoebe Hearst Cooke the 81-year-old granddaughter of William Randolph Hurst is underway. A temporary conservatorship has been granted and relatives are seeking to place control of Cooke's assets in the hands of her twin brother, George.

The LA Times reports that "documents filed in San Luis Obispo County Superior Court paint a picture of a searing conflict between a woman who can be fiercely independent-minded and relatives who say they are concerned about the alleged vulnerability of an elderly heiress."

Family members contend she has made a number of large monetary gifts and several valuable paintings are missing. Her attorneys allege a number of procedural irregularities.

Ms. Cooke has realized that she has "entered an era where she can be aided in the management of her assets," bus she should not be constrained from spending her money as she pleases. Her attorneys say that if her estate lost 5 million annually it would take 420 years to deplete it. According to Forbes she has a net worth of 2.1 billion. Today Hearst Corp. controls newspaper (San Francisco Chronicle, Houston Chronicle) and magazine (Cosmopolitan, Esquire) divisions, flourishing cable networks (stakes in ESPN, Lifetime, A&E). Also TV, radio stations.

See also the San Luis Obispo News Article

Falk Update

Falk's daugher okayed for supervised visit. Daughter, Catherine, claims is under 24 hour care and has Alzheimer's disease. Ms Falk alleges she has been blocked from seeing her father for six months. She has applied to be put in charge of his estate.


A lawyer appointed by the court Mr. Faulk at his home to assess his situation and met with his wife and his business manager. The attorney testified that Falk was well cared for and in his opinion did not need to put under his daughter's care.

Catherine Falk has been given the right a supervised visit to occur in 30 days.

The judge in the case ordered that the meeting should not be discussed in public after it has taken place.

State of Texas tries to negate fees for eight years of guardian services.

This one going to the Texas Supreme Court may be one to watch:

On June 24, 1994, a guardianship was filed for Wallace Darst who was suffering from Alzheimer’s Disease by a son, Joseph Darst. On July 5, 1994, Darst’s other son and daughter filed to deny the material allegations in the application and to specifically contest their brother’s qualifications as a guardian.

The presiding county judge at the time was Maxine Darst, who recused herself. Judge Glen Ashworth in Texas’ 86th District Court presided over the case. Kaufman attorney Jo Ann Combs was appointed by the court to act as guardian.


In 2002, after a contested hearing, Ashworth awarded Combs $143,168.95 for fees and expenses provided and incurred in the performance of her duties as Darst’s guardian.

No fees were received and Combs filed a lawsuit in 2006.

That was dismissed as the county’s attorneys successfully argued that the 86th District court never acquired jurisdiction and Ashworth’s judgement was unenforceable.

Combs appealed to the Fifth District.

They said that no one had objected to Judge Ashworth’s appointment or jurisdiction in the eight years the guardianship was open.


Lot of unanswered question in the article. What is the system in Texas like. Why in this case is the state paying. Did Mr. Darst pay for any services. Nothing in the article in Kaufman Hearld indicates that there is a dispute over the quality of services provided or even the cost which turns out to be over a period of eight years 17,896.12 per year and 1,491.34 per month.

Guardianship Fight for Falk

ABC News is reporting that Peter Falk's wife of 32 years, Shera Danese Falk, is opposing the bid of daughter Catherine Falk to be her father's guardian, claiming that he is already receiving proper care and that he doesn't have a close relationship with Catherine.

In her Tuesday Los Angeles Superior Court filing, Shera wrote that the court "need not take the drastic step of taking away Peter's rights under the guise of a conservatorship."

A hearing on the matter is scheduled for next month.

More Job Insurance for Estate Planners

Longer life, longer window of exposure to dementia. Increasing needs and decreasing capacity lead the way to financial abuse and intra-family fighting. And sure enough guardianship litigation is on the rise.

Estate planners apply various techniques to minimize this fighting, well-drafted documents, insurance, gifting plans, prudently chosen fiduciaries, family communication, powers of attorney, and advanced medical directives, funded trusts, and so on. For most clients, a combination of these techniques can eliminate costly fighting. For others, no amount of planning will do.

No matter what happens to the estate tax, the family feuds will go on. With the biggest wealth transfer ever Estate Planners, Probate litigators, and elder law professionals should be busy.

Sad News

Sad news. Columbo actor Peter Falk has Alzheimer's disease and dementia. His daughter, Catherine Falk has started the legal process of asking for a conservatorship stating in papers filed with a Los Angeles court that he "requires full-time custodial care for his health and safety. He has memory loss and can no longer recognize familiar people, places, and things.

Home for the Holidays

The Courrant's Rick Green reported on December 7, 2008 That Marily Plank has been allowed to return to Michigan. She was detained for over a year in Connecticut by probate court in Greenwich.

She was greeted at the assisted living facility she is moving to by cheering family and friends, who had been fighting to bring Plank back for the last 18 months. Apparently brought to Connecticut by two daughters without the knowledge of the rest of the family, Plank found herself in probate court where the judge granted an involuntary conservatorship, essentially trapping the elderly Michigan resident. It took a year to rule on a request by Plank's daughter that she be allowed to return home.

Jenny Jenny who can I turn to (867-5309) for the price of a dime I can always turn to you

Courier Mail
Queensland

AN elderly man has lost his bid to regain control over his financial affairs which were taken over because he made hundreds of calls to sex chat lines.

The man, who says he made the calls for companionship, was first placed under orders in late 2006 after members of his family alleged he had made up to $20,000 worth of 190 calls a month over two years. They also alleged he was incapable of looking after himself and that he suffered dementia. He has since been cleared by medical experts of any clinical, cognitive and psychiatric dysfunction.

The man, who made tens of thousands of dollars worth of calls to 190 different numbers - told The Courier-Mail the tribunal had ruled that the financial administration orders, which gave control over his financial affairs to the Public Trustee, were to remain. But the tribunal revoked guardianship orders which had vested control over other aspects of his life to the Office of the Adult Guardian.

Ward Bosses

AP Story - November 18, 2008

GRINNELL, Iowa - A Deep River woman wants to change a state law to require that mentally disabled voters be supervised when they cast a ballot. She was upset when staff at a group home in Grinnell took her 26-year-old son, who is developmentally disabled, to vote on Election Day against her wishes. She said she's not trying to take away a person's right to vote. "It's just that a lot of us, (group) homes and parents, need to work together and agree on what's best for our loved ones."

The woman, who has guardianship over most of her son's legal decisions, unsuccessfully challenged his ballot. She supported Republican John McCain and her son voted for Democrat Barack Obama, but said that's not why she challenged him. She didn't think he had the capacity to choose for himself.

It was at least the second case in which a relative challenged a family member's ballot in this month's presidential election in Iowa. In Council Bluffs, a woman challenged her elderly mother's absentee ballot, claiming her mother suffered from dementia and was coerced into casting the ballot by Democratic campaign workers who were going door-to-door asking potential voters if they wanted an absentee ballot. In that case, the woman supported McCain and her mother reportedly voted for Obama. That challenge was also unsuccessful.

Think there has ever been a case where the guardian challenged the vote of a ward who voted for the same candidate as the guardian?

Technically Unjust

Rick Green of the Hartford Courant is a vocal critic of the Connecticut Probate Courts. He reported on the terrible injustice done to Daniel Gross. Several years ago, even though he was a New York resident, Daniel Gross was held against his will in a Connecticut nursing home for 10 months when he fell ill in while visiting in Connecticut. Judge Joseph Gormley determined that this was "a terrible miscarriage of justice" and allowed Daniel to return home.

Another instance here.

On July 13, 2006, Judge Gormley said about jurisdiction:

"The statute is absolutely clear that you can't appoint a conservator of someone's person unless that person is domiciled in the state of Connecticut or resides in the state of Connecticut."

"This gentleman ... has never lived in the state of Connecticut, has lived and raised his three children in New York, his only assets were in New York, his house and his bank account, his driver's license is in New York, his registration is New York, his mail goes to New York. There is to me not a scintilla of evidence supporting residency."

"You can't appoint a conservator of the person for someone who lives out of state... the man lives somewhere else."

Now just this month comes the Story of a 96-year-old Michigan woman. When a daughter from Ohio came to visit her, she became concerned for her well-being. The daughter moved her from Michigan to an assisted-living facility in Ohio. She then filed a motion to become her guardian. Ohio law does not allow for the appointment of a guardian that lives outside the state. A second daughter objected challenging Ohio's jurisdiction.

The question at the heart of the dispute is whether the mother left Michigan voluntarily and if she had the intention to reside in Ohio.

In a 4-3 decision, the objecting daughter was found to lack standing to bring the case because of a failure to file a motion to intervene in the earlier litigation. Their justification was basically that the rules for intervention allow a court to maintain control of the proceedings. Creating a guardianship can involve many people, family, friends, neighbors, etc., and it can get out of hand.

A rebuttal that was complete and at times heart-felt challenged the majority assertion, claimed it didn't even use the right case law, and failed to construe the Rules of Appellate Procedure correctly.

"This court has consistently adhered to the policy of exercising all proper means to prevent the loss of valuable rights when the validity of a notice to appeal is challenged solely on technical, procedural grounds."

The judges felt it unjust and inequitable to prevent the daughter from challenging the lower court proceedings.

An attorney, who was not the guardian ad litem, appeared at the proceedings below representing the ward and stated that his client had indicated that she would prefer to return to Michigan and have her affairs handled by her daughter Jenny.

"She is concerned that her mother was removed from her home and forced to live out the rest of her days in a strange location. Anyone with an elderly parent can imagine the pain of seeing that parent held against her will; I consider Hull to be aggrieved by the lower court decision."

One of the problems this case brings up is the incentive an Ohio resident has to move a parent to Ohio to prevent a non-Ohio sibling from being eligible to serve as guardian. “We should not wait for the General Assembly to address this problem. Our legal system should help resolve family conflict, not provide a ready avenue to exacerbate it.”

The decision also prevented a case that the objecting daughter filed in Michigan to decide the issue of the mother's residence, which really was at the heart of the dispute.