Category: Legal Issues (Page 5 of 5)

Brady Bunch Estate Planning: Balancing the Duty of Loyalty

September 3, 2019 / drussellcfp

It is a well established principle of trust law that trustees are fiduciaries who owe specific duties to the beneficiaries of a trust. These duties can be grouped into duties of loyalty and duties of care.

But what if a trust has beneficiaries with adverse interests to one another? It is not uncommon for a trust to have two kinds of beneficiaries – a current beneficiary as well as a remainder beneficiary. That is, the current beneficiary may have rights to the income from the trust, and perhaps even discretionary rights to the trust’s assets (also known as the trust principal or corpus); whereas the remainder beneficiary may have rights or equitable interest in what is left in the trust (the remainder) after a period of years or upon the death of the current beneficiary. These adverse interests can test the mettle of most individual or family trustees as both beneficiaries are owed duties of loyalty and care.

Suppose Mike Brady created a trust to take effect at his death. His trust includes the following (summarized) instructions:

At my death, my trustee shall pay to my surviving spouse the net income from my trust for as long as my spouse shall live.
In addition to the net income, my trustee may also pay to my surviving spouse from the trust’s principal, as much as my trustee shall deem necessary to maintain my spouse in [her] accustomed standard of living.
Upon my spouse’s death, my trustee shall distribute my trust to my surviving children (Greg Brady, Peter Brady, and Bobby Brady) in equal shares.

Now supposed that when Mike Brady dies, Carol Brady is appointed to serve as trustee of Mike’s trust. Or, perhaps Mike’s oldest son, Greg, is appointed as trustee. This is not only permitted but done frequently, presumably to avoid paying a professional trustee. The conflicts to the Duty of Loyalty are obvious.

For example, if Carol Brady is trustee, it stands to reason that she would want to maximize current income from the trust while minimizing principal growth. Likewise, if Greg is trustee, he would want to maximize his ultimate share of the trust by investing for growth rather than income. In addition, asking either party to objectively define “accustomed standard of living” puts them both in awkward, if not conflicting positions. Should Alice’s services as a live-in housekeeper continue to be paid after everyone has moved on? Carol could certainly argue that the expense met the accustomed standard of living test, but would Greg require Carol to pay for it herself, or would he deny it saying it wasn’t necessary any longer?

Perhaps when Mike and Carol were in the attorney’s office, their response to these hypothetical situations was typical. “Oh our kids would never argue over this.”

It is possible to be loyal to both beneficiaries even if there are adverse interests. However, doing so requires a great deal of objectivity, scrutiny, and immunity to emotional persuasion. A wise trustee will establish clear expectations and open communication early in the relationship to avoid favoring one beneficiary over the other and risk breaching the duty of loyalty.

How often should legal documents be reviewed?

August 30, 2019 / drussellcfp

Once a legal document is completed and signed, it is often carefully laid to rest in a safe deposit box or file drawer and comes out again only when a party dies or a conflict arises.

Prudent persons periodically review and update their legal documents. Just how often depends, of course, on the document and which circumstances have changed. The following list sets forth some events that may require the updating of a legal document.

Life Events

● Marriage.
● Dissolution of a marriage (divorce).
● Death of a spouse.
● Disability of a spouse or child.
● A substantial change in estate size.
● A move to another state.
● Death of executor, trustee or guardian.
● Birth or adoption.
● Serious illness of family member.
● Change in business interest.
● Retirement.
● Change in health.
● Change in insurability for life insurance.
● Acquisition of property in another state.
● Changes in tax, property or probate and trust law.
● A change in beneficiary attitudes.
● Financial responsibility of a child.

If there is any question as to the effect of a change in circumstances on your will, trust, buy-sell agreement, asset titles and beneficiary designations, etc., contact the appropriate member of your team and have it reviewed before a crisis arises.

Healthcare Surrogates can’t agree to Arbitration

August 27, 2019 / drussellcfp

Standing as a health surrogate doesn’t allow appointees to enter into nursing home arbitration agreements or other business agreements with providers, a Florida appeals court has ruled.

At issue was a nursing home attempting to force claims by a deceased resident’s estate into arbitration since one of the healthcare surrogates had signed an arbitration agreement during admission of the resident.

In making it’s ruling, the court stated:

“The heart of this case is whether a document that designates a healthcare surrogate is broad enough to allow that surrogate to consent to an arbitration provision in a nursing home admission form,” wrote Judge Robert Gross. “We hold that the narrow focus of the document is on the surrogates’ power to make healthcare decisions, not business choices concerning dispute resolution.”

Source: Healthcare surrogates can’t agree to arbitration on behalf of their charges, court rules – News – McKnight’s Long Term Care News

Did you sign up for this when you agreed to be trustee?

August 21, 2019 / drussellcfp

In the Matter of DREXEL ANDREW BRADSHAW, Attorney Drexel Andrew Bradshaw was charged with five counts of misconduct related to his position as the successor trustee of a client’s trust and his involvement with a construction company that repaired the client’s home. The case demonstrates the liability exposure that fiduciaries have and the extent to which they have to defend their actions, even if those actions were appropriate and in good faith.

To summarize, Bradshaw became the court-appointed conservator and trustee of a trust for an elderly client ruled incapable of managing her financial affairs. The client lived in an older home in San Francisco that needed significant repairs for the client’s living ability and care. Bradshaw hired a construction company that he had helped the owner of the company start by providing legal services and initial funding loans. To pay for the repairs, Bradshaw petitioned the court to allow him to obtain a reverse mortgage (followed by a 2nd one two years later).

The [California] Office of Chief Trial Counsel of the State Bar (OCTC) charged Bradshaw with four counts related to his handling of the trust:

engaging in a scheme to defraud the trust,
breaching his fiduciary duties to his client and the trust beneficiaries,
misappropriation of trust funds, and
making several misrepresentations to the probate court and other government agencies.

The hearing judge found Bradshaw culpable of three of the charges (with the exception of misappropriation) and recommended that he be disbarred. Both Bradshaw and the OCTC appealed.

The appeals court found in Bradshaw’s favor and dismissed the case for “lack of clear and convincing proof.” In its ruling the appeals court stated:

Upon our independent review of the record (Cal. Rules of Court, rule 9.12), we do not find clear and convincing evidence to support culpability as to the charged misconduct. We reject OCTC’s premise that Bradshaw wanted to start a construction company and used his position as trustee to start his “corrupt” enterprise. Bradshaw served as the successor trustee for a client years after his firm drafted the client’s trust and estate plan, and only after the first two successor trustees were unable to serve. He managed the trust according to its stated purposes and terms in a reasonable and proper manner, including engaging a certified specialist in probate and trust law to assist him in his duties. Further, he adhered to his client’s clearly expressed desires to be cared for in her San Francisco home, and that the equity in the home be used to accomplish that goal. To that end, Bradshaw used the trust assets, which consisted mostly of the home’s $1.6 million equity, to provide his client with quality nursing care and for necessary repairs to ensure her safety in the home…

For the full transcript of this case, see http://www.statebarcourt.ca.gov/Portals/2/documents/opinions/Bradshaw_%2016-O-15558_%20Opinion_and_%20Order.pdf

The Case Files – Episode 1: “Fool me once, shame on you…”

August 19, 2019 / drussellcfp

Wealth and Honor is a website dedicated to helping families navigate the financial challenges of age transitions. The site now has a YouTube Channel to host “edutainment” videos featuring non-legal commentary on actual court cases involving will disputes, elder financial abuse, estate litigation, fiduciary liability, and other issues of aging, death, and wealth.

Court transcripts are condensed into a factual summary with popular sitcom characters providing faces to the actual characters of the case, followed by a non-legal commentary of lessons to learn and missteps to avoid.

https://youtu.be/6gBLpiWQX9c

The Case Files Trailer

The first episode covers the case of Lintz vs Lintz, a 2014 case decided in the California Appeals Court, that includes claims of breach of fiduciary duty, elder financial abuse, undue influence, among other claims. Viewers are encouraged to first watch a presentation of commonly used terms before watching the case episodes.

For a full text of the court transcript, click here.

Nursing home has no standing in suit against resident’s daughter.

August 12, 2019 / drussellcfp

A New Jersey appeals court ruled that a nursing home has no standing to lodge a conversion claim or infringement of fiduciary duty against the daughter of a resident who transferred the resident’s cash to herself, resulting in a Medicaid penalty period.

M.D. is the daughter of B.S. In 2010, She started helping her mom financially. When she suspected that her mom’s husband had dementia and was spending her mom’s money “recklessly” she transferred money from a joint account into M.D.’s personal account. Over the next three years, she used some of the money transferred to provide care for her mom.

Safe Deposit Boxes Aren’t Safe – The New York Times

August 9, 2019 / drussellcfp

There are an estimated 25 million safe deposit boxes in America, and they operate in a legal gray zone within the highly regulated banking industry. There are no federal laws governing the boxes; no rules require banks to compensate customers if their property is stolen or destroyed.

Read the full article here.

Uniform Law Commission Approves the Uniform Electronic Wills Act

August 7, 2019 / drussellcfp

Recently the Uniform Law Commissioners approved five new acts, including the The Uniform Electronic Wills Act. According to the ULC:

This Act permits testators to execute an electronic will and allows probate courts to give electronic wills legal effect. Most documents that were traditionally printed on paper can now be created, transferred, signed, and recorded in electronic form. Since 2000 the Uniform Electronic Transactions Act (UETA) and a similar federal law, E-SIGN have provided that a transaction is not invalid solely because the terms of the contract are in an electronic format. But UETA and E-SIGN both contain an express exception for wills, which, because the testator is deceased at the time the document must be interpreted, are subject to special execution requirements to ensure validity and must still be executed on paper in most states. Under the new Electronic Wills Act, the testator’s electronic signature must be witnessed contemporaneously (or notarized contemporaneously in states that allow notarized wills) and the document must be stored in a tamper-evident file. States will have the option to include language that allows remote witnessing. The act will also address recognition of electronic wills executed under the law of another state. For a generation that is used to banking, communicating, and transacting business online, the Uniform Electronic Wills Act will allow online estate planning while maintaining safeguards to help prevent fraud and coercion.

Source: ULC News – Uniform Law Commission