Stapleton Elder Law

Commission Tasked with Making Changes to New Mexico’s Guardianship System

An order from the New Mexico Supreme Court has been issued to create a 16 member commission charged with taking a closer look at the guardianship system and making informed recommendations.

In addition to Elder Law and estate planning attorneys with experience in guardianship law, representatives from three branches of government and advocates for the elderly and disabled will be represented on the commission. A recent article from KRWG, “In Depth: New Mexico Supreme Court Forms Commission To Recommend Guardianship System Changes,” explains the different roles involved in guardianship cases, and how the commission expects to improve matters in New Mexico.

Conservators are appointed by a court to manage the financial and possibly the property affairs of an incapacitated person. Those may be individuals suffering from dementia, traumatic brain injuries, a developmental disability or a mental illness.

The New Mexico Supreme Court ordered the commission to hold hearings to gather public input and then to make recommendations about any necessary changes in court rules, state statutes, program funding, administrative practices or other ideas to improve the guardianship system.

Wendy York, an Albuquerque attorney, has been appointed the chair of the new commission. York was a Second Judicial District judge from 1997 to 2005. She has worked in a private law firm for the past 12 years as a mediator in cases, including disputes involving family members and protected persons, as well as guardianship organizations.

Members of the commission include several judges, legislators, and Elder Law attorneys, like Tim Gardner, legal director of Disability Rights New Mexico, a non-profit group that promotes and protects the rights of people with disabilities and Jorja Armijo-Brasher, director of the Department of Senior Affairs for the City of Albuquerque since 2009. She is in charge of six senior centers, two multi-generational centers, as well as services and programs for the elderly, like home-delivered meals and transportation assistance.

The commission has been given until October 1 to make an initial status report and then to continue its work until a final report and recommendations are ready for review. How much of an impact the commission’s recommendations will make, remains to be seen.

Reference: KRWG.org (April 7, 2017) “In Depth: New Mexico Supreme Court Forms Commission To Recommend Guardianship System Changes”

Please visit our website to learn more about conservatorship and guardianship. 

No Good Deed Goes Unpunished: Senior Finances

It’s hard to say no when someone you love asks for help, but when it comes to money, helping a senior with paying bills or grocery shopping could turn into a felony.

A simple transaction, like writing out a check or accepting cash for groceries for a senior, even if it’s for your very own mother, doesn’t seem like a bad thing to do.  However, the potential for a simple act of kindness to be perceived as criminal activity against a senior is very real.

Bankrate’s article, “Be cautious before helping seniors with their finances,” warns that unless you’re an only child helping your parent, when you start writing checks, suspicions may arise, with or without justification.

Elder law attorneys hear of financial elder abuse suspicions and actual abuse on a regular basis. Therefore, just because a senior asks for your help, doesn't mean you should help. This is because things can get complicated.

Once you get involved, you may see that there are many moving parts. There could be an already-troubled senior who’s paying some bills twice and some not at all, or donating money to questionable organizations. Their finances may be in disrepair. Remember, if you don't have the time and aren’t ready to take on a complex process with legal implications, just say no.

Power of Attorney. A power of attorney gives the holder authority to execute certain transactions. While you don't need an estate planning attorney to create up a power of attorney (POA), you're taking a chance if you choose the do-it-yourself route. If you need to obtain a guardianship (or conservatorship) for the senior, you’ll need an elder law attorney. A guardianship gives you the authority to take control of the senior’s finances. There will be a court hearing, and you’ll have to present medical records and be represented by an attorney.

Minimize Risks. It is important to try to minimize the risks for the senior and maximize financial accountability. Monthly bills, like utilities, can be directly debited from the senior's bank account.  You should never sign the senior’s name on checks or credit card purchases. They may insist that it is okay, but they would be wrong.

Record-keeping. Regardless of the amount of authority you have been given to help a senior or control their finances, it's crucial that you keep meticulous records to protect yourself. POAs should hang on to receipts for everything and never combine their money with the senior's money. You should never borrow money from them, and don’t fall into the trap of believing you’re entitled to money because their family is never involved. That’s financial exploitation, and it is a criminal act.

Talk with family members regularly. Even if the senior tells you that their family does not care or isn’t interested, protect yourself with ongoing communication with more than one family member. There may be factions, vendettas and private agendas within the family that you are not privy to. It is essential that you document everything and have regular meetings.  You can also share reports with these family members.

As an extra layer of protection for yourself, you may want to have a conversation with the family‘s estate planning attorney. If there is no attorney involved, be extra cautious, since you may be wading into a swamp of litigation and accusations.

Reference: Bankrate (February 15, 2017) “Be cautious before helping seniors with their finances”

 

 To learn more about protecting yourself from financial exploitation, please visit our website. 

Every Family Needs Estate Planning, Especially When It's Complicated

People used to think that trusts were just for wealthy families, and that a basic will was for the rest of us. But when families are complicated, with step-parents, step-children, half-siblings and subsequent marriages, distributing assets often requires more than simple documents.

A will is the best known estate planning document; it provides instructions about how to distribute your assets after death. There are many different kinds of trusts, and whether you need one or more than one is best determined with the help of an experienced estate planning attorney.

There is no simple estate—everybody has complexity, says The (Eugene, OR) Register-Guard article "Wills, trusts, big decisions." The basic questions are whether: (i) you're married; (ii) you have children, or children from multiple marriages or step-children; and (iii) there's real estate you own outside of the state. The larger the estate, the more questions there will be about how best to distribute the assets.

If it is a one-time married family, an estate-planning attorney can provide for financial assets to go straight to the children without probate administration in many cases. But things can be more complicated with blended families. There may be one spouse with children by a prior marriage and children from a subsequent marriage. If that is the case, then you may want to be sure that the children by the first marriage will be treated the same when the surviving spouse will have control of all of the assets.

Frequently this can be avoided, starting with a discussion to learn if the people are willing to carry out an equitable division among the various "blended" children. If it doesn't look like they will, then you may need to create a trust with someone other than the surviving spouse as trustee. That will make certain that assets you intend go to the children from your first marriage.

A minimum set of documents that every retiree should have includes a will, a power of attorney and medical documents such as an advanced directive. A durable power of attorney permits the person you choose to deal with your finances. A health care directive is a living will, which is a written document of a person's wishes.

Even if there has not been any instance of dementia or Alzheimer's disease in the family, it is wise to take the additional step to plan in advance so that the family does not have to become embroiled in conservator and guardianship issues while it is in crisis mode. An experienced estate planning attorney can discuss how to best handle this for your family.

Reference: The (Eugene, OR) Register-Guard (March 23, 2016) "Wills, trusts, big decisions"

Please visit our website to learn more about creating an estate plan for your family.

Mental Capacity at the Heart of Sumner Redstone's Billion-Dollar Empire

The stakes are high for the ex-girlfriend, shareholders and family members in this larger-than-life battle over whether or not the man who was the ultimate dealmaker is capable of making his own decisions.

Whether or not Sumner Redstone is mentally competent is headed to a trial, as competition for control of his $3 billion holdings in Viacom Inc. and CBS Corp. heats up. According to Bloomberg's "Redstone Faces Competency Trial amid Fight over Media Empire," his ex-girlfriend Manuela Herzer claims that Redstone is no longer mentally competent and is being manipulated by others.

A Los Angeles probate judge asked whether it was wise for the 92-year-old to name Viacom CEO Phillipe Dauman as his agent in charge of his health care decisions rather than a family member. Judge David Cowan, who will decide the case without a jury, said he isn't confident things "are all patched up" between Sumner and his daughter Shari Redstone.

At least one shareholder has sued the boards of Viacom and CBS, accusing them of wasting millions of dollars paying Redstone when he was unfit to take an active role in the businesses. He stepped down as chairman of both companies only last month, days after he was examined by a psychiatrist designated by Herzer as part of her court case.

The control of Redstone's 80% voting stakes in Viacom and CBS will pass to a family trust if he becomes incapacitated or dies. Shari Redstone and Dauman are two of the seven members of that trust. Redstone's Viacom and CBS holdings are exempt from the lawsuit, as the family trust that will take control was established long ago.

While Redstone's lawyers accuse Herzer of being interested only in regaining the inheritance from Redstone's prior will—a hefty $50 million plus a home valued at $20 million, Herzer says that he was not mentally competent when she was removed from his will, evicted from the mansion and removed from his advance healthcare directive. A geriatric psychiatrist's report, sealed from public view, recently provided information that led the judge to his decision that the question of Redstone's competency is not yet resolved.

Reference: Bloomberg (February 29, 2016) "Redstone Faces Competency Trial Amid Fight Over Media Empire"

To learn more about capacity issues and estate planning, please visit our website.  

Whitney Houston’s Daughter’s Boyfriend is Already Facing Estate Plan Troubles

   Nick Gordon may feel like he has a target on his back and with good reason.  The boyfriend of Bobbi Kristina Brown, daughter to the world-class performer Whitney Houston, will never see the 22-year-old again. Tragically, Bobbi Kristina is being cared for in a Duluth, Ga., hospice after suffering major head trauma.  Gordon has been banned from visiting her, and is also being sued for millions by court-appointed conservator Bedelia Hargrove. According to the lawsuit, Gordon is alleged to have severely beaten Bobbi Kristina on the day she was found and leaving her alone after the beating.  She is unlikely to ever recover, having suffered extensive brain damage from the attack. To add theft to injury, Gordon is accused of stealing thousands from Bobbi’s bank account during the last five months.

The USA Today’s article titled, “Lawsuit start of big trouble for Nick Gordon,” asks “why is this guy being sued?”

It appears that his suspect reputation and lying are giving the family of Whitney Houston’s comatose daughter the idea of bringing an action against him in an effort to keep him from claiming a piece of Bobbi Kristina’s million dollar estate.

In the past, Nick Gordon has claimed that he was “informally” adopted by Whitney and that he’s also Bobbi Kristina's husband, which would make him a family member with legal rights.

Attorneys for the family say there is plenty of evidence to show that neither claim is true. Gordon has said nothing, including anything about what happened to Bobbi Kristina before she was found face down and unresponsive in her bathtub in January, similar to her mother's bathtub death three years ago.

The article reports that law enforcement officials in Georgia have not determined if they will bring charges against Gordon, but the case is still under investigation. Nonetheless, without any criminal charges, Bobbi Kristina's conservator is claiming in civil court that Gordon is a liar, a thief, a batterer—maybe even a killer. The conservator was appointed by a state family court to protect Bobbi Kristina's assets while she is incapacitated. The court papers claim that Gordon was at one point accused of making threats and was under a restraining order to stay away from Bobbi Kristina's relatives.

Bobbi Kristina is worth millions from the trust Whitney established for her in her will. However, the remainder of Whitney’s sizable estate goes to Bobbi when she turns 30. If Bobbi dies before that, Whitney’s will dictates that those millions revert to the Houston family. Although that scenario may set up a fight between the Houstons and Browns, both sides agree that Gordon should get nothing.

This is a proactive move, the article says, because the family is concerned that Gordon will claim he's entitled to some piece of her estate. But Bobby Brown said that Gordon was never married to Bobbi Kristina, and common-law marriage is not recognized in Georgia. Nonetheless, the family might just settle with him to make him go away.

Reference: USA Today (June 28, 2015) “Lawsuit start of big trouble for Nick Gordon”

Please visit our website to learn more about proper estate planning for yourself and your heirs.