Quick PSA

As college students head back to college, I wanted to remind parents that their college bound children should have a set of documents in place so the parents can access their medical info and make medical decisions if something terrible were to happen to their student. Once the child is 18, the child is in charge of their own decisions and hospitals do not automatically defer to the parents' decisions.

Students should have a health care power of attorney, HIPAA release, living will, and financial power of attorney. I prepare the set of documents for a reduced fee of $150.

Parents are on their own in trying to access their child's grades and tuition bills.

Pic is from Jack's first day at OSU last year.

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

What Is It With Sacramento?

Rosalie Achiu is a recently widowed Sacramento woman. Her neighbors described her as suffering from dementia. Shortly after she called the Sacramento sheriff for assistance in January, one of the responding deputies obtained her power of attorney, drilled a safe deposit box, moved her out of her house, and placed her on a plane to the Phillippines ostensibly to visit relatives there. The deputy claims that she did all of this at the behest of the woman. The deputy is now under investigation by her department.

A few points:

1. Color me skeptical that a woman would instantly give financial control of her assets to a law enforcement officer she recently met and that the officer would accept such power for benevolent purposes when social services and the probate court could assist the woman.

2. Mrs. Achiu should have executed a power of attorney prior to her husband’s death, or shortly thereafter, designating a trusted friend or relative as her attorney in fact for both financial and medical decisions.

3. In true 2018 fashion, the deputy claims that she is being investigated because she filed a harassment claim against her now current supervisor in 2007. This does not explain why her partner is also being investigated.

Photo Credit:  Unknown (AP?)
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

Not All Tattoos Are Pointless

When an unconscious Florida man was brought to a hospital without identification but a tattoo that said “Do Not Resuscitate” and a signature, doctors were surprisingly faced with what to do with the dying man. They first thought they should disregard the tattoo because it might not reflect his current wishes because he might have gotten it when drunk. An ethicist later over-ruled the doctors and said that his tattooed wishes must be respected.The man eventually died. An NYU ethicist quoted in the article said that people should carry their health care directives with them to prevent these problems.

Several points:

1. Sad that the hospital was at first going to ignore something as obvious as the man’s tattooed wishes. Even if he were drunk when he obtained the tattoo, he could have remembered to remove it any time whenever he saw himself and the tattoo in a mirror.

2. I have scans of all my clients’ documents and have occasionally been asked to send them to a hospital while I have been out of town. The cloud can be a tremendous tool.

3. Carrying one’s health care directives in case of emergency seems like an extreme command by the ethicist especially in the case of homeless folks who are simply trying to push a cart with their blankets and clothes and looking for food. Neatly preserved health care directives would seem to be low on the priority list.

4. Moving beyond homeless folks, asking folks to carry their health care directives while they run to CVS or Sam’s Club seems burdensome. This is further proof that the academic world is not the real world.

Photo Credit:  New England Journal of Medicine
License:  Fair Use/Education

Prayers For Otto

Otto Warmbier is the Cincinnatian who was held captive by North Korea for 17 months for allegedly trying to steal a propaganda sign on a college visit. While starting to serve a 15 year sentence of hard labor, he was beaten so severely that he suffered a brain injury and returned home Tuesday night in a coma. Doctors at the University of Cincinnati Medical Center have described his condition as "unresponsive wakefulness."

One small legal point:

1. Once a child turns 18, I encourage parents to have their child sign a health care power of attorney, living will, and HIPAA Release so the parents can access their child's medical records and make medical decisions for them. Without those documents, the parents might be stymied in making decisions in the best interest of their child.

2. This story breaks my heart. No snark here out of respect for Otto and his parents. Tell your child you love him/her tonight.

Photo Credit:  Christopher Oquendo for dailymail.com
License:  Fair Use/Education

Don't Be Like John B. (Estate Planning Tips From “S-Town”)

“S-Town” is the critically acclaimed successor podcast to “Serial.”  The anti-hero, John B, lives in a Faulkner-esque house on 128 acres in Woodstock, Alabama with his octogenarian mother who suffers from dementia.  He is a genius horologist (clock repairman), builder of a “Shining” type maze on his property, hypocrite about tattoos, and so obsessed with climate change and other problems that he makes Thomas Malthus seem optimistic.

John B. was thought to be worth a large amount of money by residents of Woodstock.  During the podcast he mentions that he wants to leave $20,000 to his friend, Tyler.  He also tells Tyler (spoiler alert) on the night that he commits suicide that Tyler can have his property.  Sadly, John B. died without writing a will or without having a plan for someone to take care of his mother.  Mystifyingly, John B. claims to have been unbanked which led Tyler and others to search his property for locations where he could have buried gold and cash.  He did leave instructions with a friend about what to do and whom to contact after his death.

Several points:

1.  If one has to choose between leaving a will or instructions about what to do after death, one should choose a will.

2.  Embrace the power of “AND”.  One should be able to leave a will AND instructions about what to do after death.

3.  Without a will, John B’s assets if found legally will go to his mother.  Without a health care power of attorney, the care of his mother will go to a relative willing to serve as guardian.

4.  Being unbanked might make sense for someone of little financial means.  For someone who might have made hundreds of thousands dollars annually and is prone to suicidal threats, being unbanked can only lead to one’s property looking like a scene from “Holes.”    

 
Photo Copyright:  James Breeden for Daily Mail (?)
License:  Fair Use/Education

Meanest Man Begets Mean Daughter

Sam Huff is an NFL Hall of Fame linebacker who played for the NY Giants and Washington Redskins. He was known as the Meanest Man in the NFL during the 1960's. He is long divorced,has lived with Carol Holden for nearly 30 years, and now suffers from dementia. His daughter picked him up one morning in late March to take him to a dentist appointment and has not returned him to his home. Some might call this kidnapping. The daughter then took him to an attorney to have herself appointed as his health care decision maker (she was already his financial decision maker) and her mother, Huff's ex--wife, as the alternate. She also asked a court to appoint her as his guardian.

Several points:

1. The prior structure of Huff's health care and financial powers of attorneys was what I usually recommend in a second marriage situation - the spouse/partner can make the medical decisions but the child can make the financial decisions.

2. The validity of Huff's new health care power of attorney is certainly questionable given his dementia diagnosis which is further evidenced by him naming his elderly, ex-wife as his alternate decision maker.

3. I am always disappointed at the vitriol that children have towards the second spouse/partner of their parents no matter how long they have been together.

4. It is no surprise that the Meanest Man in the NFL would would have an incredibly mean daughter.

Paul Walker, Sumner Redstone, and Tom Benson Updates

Briefly updating three stories previously mentioned.

1.  Paul Walker’s teenaged daughter settled a wrongful death lawsuit for $10 million against the driver of the Porsche in which he was riding at the time of his death in 2013.  The settlement actually occurred nearly 18 months ago, but was only recently reported.  Her lawsuit against Porsche for manufacturing an allegedly defective vehicle is still ongoing.  

2.   Sumner Redstone settled the lawsuit filed by his former girlfriend, Manuela Herzner, questioning his capacity to remove her as his health care surrogate and presumably his capacity to revise his will to omit her.  She was allegedly slated to receive $50 million plus an expensive house.  The settlement is reportedly for less than $70 million.   

3.  Last, the Louisiana Supreme Court has ruled that the court records regarding Tom Benson’s competency hearings should remain sealed and unavailable to the public.  After the Harper Lee probate judge sealed her estate proceedings, it seems that Southern courts have a proclivity for privacy while their predecessors acted in hooded robes for their secrecy.  

  

2 Broke Girls?

Sumner Redstone is the divorced, 92 year old billionaire who owns a controlling interest in both CBS and Viacom. His relationships with two much younger women were profiled in Vanity Fair earlier this year.  Since the publication of the article, and likely because of it, he has severed his contacts with both women.  One of the women, Manuela Herzner, filed suit this week claiming that he lacked mental capacity to remove her as the attorney in fact under his health care power of attorney.   His attorneys have naturally responded that the litigation is a farce, meritless, and a despicable invasion of his privacy.

Three points of some relevance:

1.  The battle is not really about Ms. Herzner controlling the medical decisions for Mr. Redstone - it is about throwing down a marker about his mental capacity in case he revises his will to leave her out of it.

2.  Far be it from me to call a man with two (!) girlfriends who are 40 an 50 years younger than him mentally unfit especially when he questions their motives after they gloat about their relationship in Vanity Fair.

3.  A simple test of his mental faculties could be whether he somehow finds Stephen Colbert funny and a worthy successor to David Letterman as host of CBS's "Late Night."

Khloe and Lamar (Update)

At the risk of turning this blog into TMZ-lite or another gossip site, Khloe Kardashian and Lamar Odom have called off their pending divorce. Lamar has recovered enough from his cocaine and Viagra induced coma that he is now in physical therapy.

Two brief points:

1.  Despite my advice to the contrary, good for Lamar that he did not revise his estate planning and health care documents to remove Khloe from them as beneficiary and health care decision maker.  He saved some drafting fees while also saving his life.  I suspect other disabled individuals did not have such good fortune when their estranged spouse was calling the shots.

2.  James Harden apparently does not share my sentiments about Lamar's reconciliation with Khloe.

She Didn't Know (Updated)

Now that Bobbi Kristina Brown has died after six months in a coma, let's revisit what will happen to her estate and her mother's estate, while also covering what she should have done differently.  To recap, Bobbi Kristina was a month shy of 19 years old when Whitney died.  Whitney's 1993 will created a trust solely for the benefit of Bobbi Kristina.  The trust distributed 10% of Whitney's estate to Bobbi Kristina when she was 21 with the remainder to be distributed at the ages of 25 and 30.  Bobbi Kristina received approximately $2 million on her 21st birthday.  After Bobbi Kristina was found unconscious, her father (Bobby Brown) and grandmother (Cissy Houston) made her medical decisions for her somewhat contentiously.

What should have happened?

1.  Whitney should have provided that her estate be distributed to her daughter at an age later than 21.  I never draft trusts with such a young age for principal distribution.

2.  When Bobbi Kristina received her first distribution from her trust, she should have created a will of her own which would have enabled her to leave her $2 million to her "husband"/adopted "brother", Nick Gordon.

3.  Upon turning 18, Bobbi Kristina should have executed a health care power of attorney, living will, HIPAA release, and financial power of attorney designating a specific family member to handle her affairs if she were disabled.  I always recommend this for my clients whose children are heading off to college.

4. None of this was done.  Of course, I doubt that basic estate planning was a priority for a family prone to alcohol and drug use while bathing.

The Thrill Is Gone

While BB King is in hospice care, three of his eleven surviving children were in court last week trying to wrest the dying man’s power of attorney from his long time manager.  The court found that there was no evidence to support the family members’ claims of physical neglect or misuse of funds.  The judge further stated that Mr. King is competent and can make his own decisions to change his care providers if he desires.

Several points:

1.  This seems like a battle with little at stake for the family because the power of attorney will cease to be effective upon Mr. King’s death. Essentially, his children are incurring large legal bills for control of his affairs for the next two weeks.   

2.  Even appropriate planning, such as implementing financial and health care powers of attorney, cannot prevent disputes among family members when money is involved. 

3.  With eleven surviving children, and four deceased children, I suspect that the administration of his estate will be neither quick nor smooth.    

You Are Only As Good As Your Surrogate

I am sure you have seen this, but it is still worth commenting on.  A 13 year old California girl suffered tragic complications after undergoing sleep apnea surgery and was declared brain dead by the physicians at the hospital where the surgery was performed.  Her family has contested the "brain death" declaration and has had her transferred to an disclosed facility with beliefs similar to theirs.

Two major points (no snark with these horrible circumstances):

1.  Adults can avoid the ramifications of a similar situation by executing a living will about their intentions if declared brain dead and by designating a health care surrogate to act in their stead via a health care power of attorney.

2.  The declaration of intent and designation of a surrogate are only as good as the person tasked with carrying out one's wishes.  Be sure that the surrogate shares one's intellect and values, and respects one's wishes.

Rick Dees' Family Would Not Act This Way

The family of long time American Top 40 host, Casey Kasem, settled their dispute over his health care on Friday.  The children from his first marriage had requested a conservatorship because they alleged that their step-mother was not permitting them to see him.  A court appointed doctor had opined that Kasem, who is bed ridden and hospitalized with Parkinson's disease, would want to see his children.   Details of the settlement are undisclosed.  

Several points:

1.  These types of disputes are fairly common with second marriages and children from a prior marriage.  They are also common among siblings when one child lives out of town.

2.  To reduce the risk of conflict, an individual should execute a durable power of attorney for health care and a financial power of attorney.   Further, the attorney in fact under both documents should communicate with other family members.

 

3.  Because terms of the settlement are undisclosed, it remains unknown if the Kasem children are permitted to visit their father, or if they have to send him long distance dedications.  

If At First You Don't Succeed . . . . ..Forge? (No, Just Kidding).

This is out of a horror movie.  A Kansas City attorney was recently charged with murder for killing her father's girlfriend of 20 years.  Her father was shot and his girlfriend was repeatedly stabbed then shot at their vacation home in 2010.  Her father did not die from his wounds.  The woman then allegedly forged a health care power of attorney so she could withdraw his medical support 4 days later.  She was charged with his murder a year ago.  Apparently, she was concerned that her father would leave all of his assets to his soon to be wife.  In an odd but clarifying footnote, her mother (her father's first wife), had spent 11 months in jail for stealing $100,000 from her own mother by forging a power of  attorney 10 years ago.

Points?

1.  If the father had wanted to preserve assets for his daughter he could have executed a pre-nuptial agreement to set forth which assets he would leave his soon to be wife (and what would be left for his daughter).

2.  Along the same lines, he could have executed a trust to provide for his new wife while leaving the remainder to his daughter after the wife's death.

3.  Preparing a health care power of attorney to address medical needs is essential.   So is ensuring that the person with that responsibility has a copy of the document and is aware of the duties.

4.  When a daughter resents her father and his girlfriend, and her biological mother has already stolen from her own mother, an active alarm system  and a multitude of security cameras would be a worthy investment.  And perhaps a Kevlar jacket.

Getting One's Act Together

In the making lemonade out of lemons department is this story about a woman whose 43 year old husband died after his bicycle was hit by a motorist.  The couple had unsigned wills, no emergency savings, financial accounts with passwords the wife did not know, but some life insurance.  The widow created a web site to encourage others to avoid her financial calumny and to essentially take steps to become a responsible adult by executing a will and other financial documents and by assisting with passwords and other financial knowledge.    

When prioritizing allocation of financial resources to major decisions, I recommend the following:

1.  Life insurance.  Provide financial security for the spouse and children.

2. Living will and health care power of attorney.  Do not bankrupt the family because medical decisions can not be made.

3.  Will.  Clarify distributions and designate a guardian.  

Somewhat related, the article did nothing to dispel my fear of riding my bike on the road rather than a bike trail.    

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.      

Caution With Organ Donation

A 19 year old woman in Denmark was declared brain dead and her family was advised to remove her respirator.  The family agreed to donate her organs.  When the respirator was removed, she did not die and instead recovered, causing a small national controversy.

The primary lesson is that one's health care proxy should be someone who exercises caution and does not make impetuous decisions, especially for younger individuals.  Secondarily, I am surprised that the victim was not a U.S. tourist.  After having spent $9 on a Starbucks latte and $22 for a hamburger in Copenhagen this summer, I found their cost of living to be breathtaking if not nearly coma inducing due to shock.