The Longshot

Comedian Tim Conway died today.  He started his career on “McHale’s Navy” and was best known for his role on “The Carol Burnett Show.”  During the last year of his life, his daughter from his first marriage squabbled with his second wife of 35 years over his medical care.  The daughter sought to be appointed conservator (i.e. guardian) of him even though Conway had executed a health care power of attorney designating his wife as his health care decision maker.  The daughter’s petition was denied and eventually the wife was designated as the conservator.  The daughter said she would continue to be an advocate for children seeking visitation denied by a step-parent.

Several somewhat redundant points:

1.  Because Conway had executed a financial power of attorney and health care power of attorney in favor of his wife, a conservatorship was unnecessary because those documents determined his wishes.

2.  It is bananas that animosity between a child and step-mother does not subside after 35 years of marriage.

3.  The daughter’s declaration of victory and promise of advocacy after having no legal basis for her position and then being thwarted by the court is Trumpian. 

Photo Credit:  Fox News video
License:  Fair Use/Education

This Keeps Me Employed

Comic Credit:  Nick Gilafianakis/Washington Post
License:  Fair Use/Education

No Mayo, Please

Alyssa Gilderhus was 18 years old when she suffered a ruptured aneurysm. She was given a 2% chance of survival when she arrived at the Mayo Clinic. Miraculously, she survived and was transferred to the Mayo’s rehab section. Her mother soon became disenchanted with her care and requested that various personnel not attend to her daughter while voicing her displeasure on Facebook posts in all caps. She eventually asked for a transfer to a different hospital.

The Mayo Clinic refused the transfer request alleging that Alyssa could not make decisions for herself. The hospital also sought guardianship of the patient. Frustrated, Alyssa’s family engaged in a cloak and dagger move with Alyssa escaping the hospital and fleeing Minnesota so she could not be returned to the hospital.

A South Dakota hospital saw Alyssa and prescribed medication and sent her home. Alyssa graduated from high school this year after being named Prom Queen.

One point, one plug, and one comment.

1. When she turned 18, Alyssa should have executed a health care power of attorney and a HIPAA Release so her mom could access her health care records and legally make medical decisions for her during her incapacity.

2. I always advise my clients to have their children execute those documents when they turn 18 and definitely before leaving for college. My fee is $150.

3. I would tend to follow the advice of doctors at the Mayo Clinic over those at a rural South Dakota hospital. But if a mother who posts on Facebook in all caps with exclamation points wants to follow different advice for her daughter’s care, she, not a social worker, should have the right to make that decision.

Photo Credit:  Engebretson family
License:  Fair Use/Education

We Rebelled Against Monarchy for a Reason

Times are slow in the estate planning news area. I have been awaiting the resolution of a court hearing in Hawaii about the estate of their last living “Princess” for the past month. Alas, nothing has been reported.

Abigail Kinoiki Kekaulike Kawananakoa is considered the last living Hawaiian princess. Her great-aunt was the last Queen of Hawaii. Her great-grandfather was a pineapple magnate who left her a fortune. The 91 year old survived a stroke last summer. Her long time attorney was granted control of her $250 million estate. Her long time 64 year old girl friend married her last Fall after initially breaking up with her because she wanted more than the $700K annual allowance she was receiving.

A few points of some pithiness:

1. Planning wise, Abigail should have had a financial power of attorney designating someone to handle her finances if she were incapacitated.

2. She also should have a medical power of attorney allowing someone to assist her with her medical decisions when necessary.

3. Hawaiians revere their royalty no matter how tenuously connected to the throne from 125 years ago.

4. Some (including me) might call a woman who marries an incapacitated wealthy woman 27 years older than her an opportunist rather than a wife.

Photo Credit: AP
License: Fair Use/Education

Broken Refrigerator

Scraping a bit for probate and will related news this week. William "Refrigerator" Perry shot to stardom as the large defensive lineman who sometimes played running back for the awesome 1985 Chicago Bears. He allegedly could dunk a basketball even though he weighed 300 pounds. He now lives in South Carolina under a legal guardianship created by his brother when he was near death 7 years ago. Fridge's son wants to remove the brother as guardian while a court has stated that the guardianship can be removed if Fridge files the appropriate paperwork. Fridge, meanwhile, spends his days drinking with various friends, walking assisted by a walker, and generally not taking care of his health.

Several points:

1. Any interested party can apply to be the guardian of another with the supporting medical documentation. The son could have applied to serve as guardian in 2009 but did not.

2. Guardians are compensated for their services. Despite the son's allegations, the $1,250 annual compensation received by the brother is not the reason he continues to serve as guardian of Fridge.

3. A guy who starts drinking first thing in the morning and is unmotivated to file paperwork to remove a guardianship likely still needs the protection of the guardianship.

4. This has bothered me for 30 years. It has always been reported that Fridge could dunk a basketball. How hard would it have been to ask him to do it? It is not as if basketball courts are as scarce in this country as bobsled courses.

Piece of Britney

When Britney Spears had her breakdown in 2008 (think shaved head and window smashing), her father and attorney became her conservators. In Ohio, they would be known as guardians. They manage both her physical well being and her finances. As such, they make sure she takes her medicine for her unspecified illness as well as manage her career.

In recent years, Britney, who has been described as shy has not testified at hearings about continuing the conservatorship. She reportedly is only interested in seeing her sons. Her father receives 1.5% of the $17.5 million annual revenues from her Planet Hollywood shows and the same cut from the merch sales. Her court appointed attorney has received $2 million in fees since 2008 and the other conservators have received $6.7 million.

Three brief points:

1. Britney clearly needed someone to assist her in 2008 while she was crumbling. She is likely still alive, while Michael Jackson and Prince are not, because of that.

2. Guardianships can be temporary and Britney's seems to be a perfect example of temporary intervention being all that is required. She should have the right to make stupid decisions on her own.

3. I doubt that I am the only one who read the NYT article who thought that Britney was nothing more than a trained seal performing at the behest of her inner circle for the reward of seeing her sons.

Fast, Furious, and Guardianship Settlement

As mentioned previously, Paul Walker designated his mother as the guardian of his minor daughter, Meadow Rain, even though Rebecca Soteros, Meadow's mother, was still alive.  His mother filed probate documents asking to be named guardian.  According to Bela Lugosi Jr, attorney for Mrs. Walker, the parties recently agreed to allow Meadow to live with Soteros once Soteros completes a stint in alcohol rehab.

Several points:

1.  This would have been a difficult fight for Mrs. Walker to win because the birth parent is presumed to get sole custody of a child regardless of provisions in the deceased's will.

2.  Mrs. Walker probably leveraged the will provision to ensure that Soteros sought treatment before gaining sole custody of Meadow, although she might have been tempted to fight for custody by the trust funds available to her.

3.  Who knew that Bela Lugosi (Jr.) was practicing law?  I thought Bauhaus said "Bela Lugosi's Dead."

Mindy McCready's Sons

In the aftermath of Mindy McCready's suicide, a key legal question is who will receive custody of her children - six year old Zander and   10 month old Zayne?  The issue is complicated by Zayne's father pre-deceasing Mindy last month while Zander's father, Billy McKnight, lost custody of him years ago.     

When there is a surviving parent, a court will usually award custody to the surviving biological parent.  When there is no surviving parent, a court will generally award custody to the person designated in the deceased's will.  I have not read anything indicating whether Ms. McCready left a will, although I doubt a woman living in a garbage and feces strewn house would provide for her post-death affairs.  Here, the commentariat believes that Ms. McCready's mother and step-father will receive custody of both boys.  I wish them all luck, love, and peace moving forward.  They all deserve it after the tumult in their lives.

This news should serve as a reminder for everyone to prepare a will so that their wishes for the custody of children post-death are not left to chance.     

Dahling, It's the Fiduciary that Matters

Zsa Zsa Gabor's daughter recently convinced the LA county probate court to invalidate the power of attorney held by Zsa Zsa's husband because  he was abusing it.  Her financial affairs are now subject to probate court supervision. 

To avoid the rigors of a guardianship and probate court supervision, an individual should have a financial power of attorney and health care power of attorney.  However, selecting the person to manage those responsibilities is important.  

What we can learn from Zsa Zsa's situation is that a husband is not always the best choice to serve as fiduciary  especially if he if he wants the 94 year old to have a baby, has adopted several adult men, and has claimed to father Anna Nicole Smith's daughter.