Houston Estate Planning Law Blog

‘THE DESCENDANTS’ AND THE REALITY OF HEALTHCARE PROXIES

Many people in Texas remember the 2011 George Clooney film ‘The Descendants’ in which a husband and father of two girls must make the difficult decision of following his wife’s medical wishes or keeping her on life support. But as much as we’d like to think that this scenario was a construct of Hollywood, situations like this happen every day in hospitals across the nation.

In most cases, a patient has already discussed their medical wishes with their family and friends, even authorizing a medical proxy in the event that they are no longer capable of making decisions for themselves. But it’s often times surprising to know how many people do not either designate someone as their proxy or tell their proxy about their wishes before the unthinkable happens.

Let’s take, for example, the story of an elderly Massachusetts couple. As the wife’s lung disease worsened, she was having considerably more trouble breathing on her own. But as she told her nurse, she had taken numerous trips to the hospital and been placed on ventilators in the past; these were situations she never wanted to be in again.

Though she had explained this to her hospice nurse on multiple occasions, it was a conversation she had failed to have with her husband who she had recently designated as her healthcare proxy. Although he was considered her healthcare power of attorney on paper and responsible for making important medical decisions, because she hadn’t discussed this with him he unknowingly had her placed on a ventilator after she suddenly couldn’t catch her breath one day. It wasn’t until after speaking with the nurse that the wife’s intentions were discovered.

Although it’s a difficult conversation to have with your loved ones, planning for situations like this ahead of time-preferably before the onset of an illness-can ensure that all of your wishes are being carried out to your exact specifications. Doctors and hospitals rely on the instructions given to them by patients in order to give the exact care that a patient wants to receive; if that person is unable to make those decisions for themselves, doctors look to family members. Making medical decisions for someone else can be incredibly stressful and -as George Clooney’s character demonstrated -difficult to make as well without proper guidance.

Source: The Boston Globe, “Doctors have a duty to encourage patients to discuss end-of-life wishes,” Kiran Gupta, Feb. 20, 2013

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HOUSTON WOMAN USES POWER OF ATTORNEY FOR EVIL, NOT GOOD

A 76-year-old Houston woman is trying to put her finances back in order after a 24-year-old Texas woman not only stole her driver’s license and social security card but used them to gain power of attorney over her bank accounts, getting away with nearly $30,000 of the elderly woman’s money.

In mid September, the 76-year-old woman went in to her local bank only to be told that someone had withdrawn $29,800 from her bank account. When the woman asked who, the bank gave her the name of a woman she did not know and explained that she had obtained power of attorney over her bank account. It was at this point that the woman contacted police.

Although investigators believe that a 24-year-old Texas woman is to blame for the theft, police have not been able to take her into custody as she remains at large at this time.

As Texas’ elderly community continues to rise, stories like this continue to emphasize the importance of talking with your family members about your estate before tragedies like this happen. And although power of attorney was used in the worst possible way in this scenario, in most cases, power of attorney can be incredibly helpful when distributing an ailing family member’s estate.

Many real estate planning experts point out that it’s always a good idea to not only have a power of attorney in mind but to let other people, including your financial institutions, know who that person is. And although rare, you may be able to offer yourself a safety net against the difficulties associated with identity theft such as this.

Source: KHOU News, “Houston woman accused of stealing money using power of attorney documents,” Feb. 4, 2013

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HAVE YOU CHOSEN AN ESTATE ADMINISTRATOR?

Do you have a person selected to oversee the administration of your estate? For Texas residents involved in the estate planning process, choosing a trusted person to manage the distribution of one’s estate is extremely important. When considering a person most qualified for estate administration, many people choose their children. While many children get along and grow up to be responsible and trusted adults, sadly, this is not the case for everyone.

Children can still be designated to do the job, but discussing your choice with the other siblings may be the most sensible route to take. Estate division can often cause sibling rivalry. In addition, people entrusted to estate administration may be legally entitled to a stipend for their work. This may lead to one child receiving more money than the other children received, potentially causing strife in their relationship.

While many people do select children to oversee their final wishes, there are sometimes issues that prevent one from doing so. In that case, other trusted friends or relatives can be assigned the duty, even if they do not reside in the same state. Anyone else assigned to the duty may also be eligible to receive a commission for their work from the person’s estate.

Texas residents know that different situations exist that make it difficult for a person to place a family member in charge of their estate administration. However, choosing a trusted person is a critical step to ensure one’s last wishes are fully adhered to and the estate is taken care of.

Source: Winston-Salem Journal, “Choosing administrators key when planning your estate,” Mike Wells, Aug. 5, 2012

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ESTATE ADMINISTRATION: MICHAEL JACKSON

The Jackson family is currently in the news regarding an estate dispute. Now, the guardianship of the signer’s children is being examined and will likely be adjusted. The new feud comes after siblings questioned the estate administration and openly wondered if the singer’s will was faked. While Texas residents will likely not have their estate play out in public like Michael Jackson’s estate, the matter does reinforce the importance of assigning a trusted family member or friend as guardian of one’s minor children.

The “King of Pop” left nothing in his will for any of his siblings and transferred guardianship of his three children to his mother Katherine. However, a strange incident occurred where Katherine left the children for 10 days without any contact and was reported missing. While the judge does not believe there was an error made by her, he suspended the guardianship because she did not contact the children. Instead, TJ Jackson became the temporary guardian.

As a result, a petition will likely be filed that will give TJ and Katherine co-guardianship authority. Initially, Katherine was listed as the sole guardian, but now, TJ will be able to step in as well, potentially taking some of the pressure off of her. The new agreement will give TJ control of the home’s staff and input into daily operations.

The process of estate administration can be a tough job for anyone, but especially so if families are squabbling. However, when children are involved, the situation can escalate. Fortunately, the Jackson family appears to have settled this issue for now, and the children will remain with a guardian that they are familiar with.

Source: KansasCity.com, “Plan seeks co-guardian for Michael Jackson’s kids,” Linda Deutsch, Aug. 1, 2012

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ESTATE ADMINISTRATION AND CREDIT CARD DEBT

If one passes, what happens to unpaid credit card debt? As with most debts, credit card companies will usually attempt to get compensation from the cardholder’s estate. Texas residents may benefit from knowing how this process works in estate administration. In most cases, the debt of the cardholder will be paid from their estate. If there is not enough money in the estate to pay the debt, credit card companies may seek to obtain the money from the relatives of the deceased person. On the other hand, this is not the norm.

Typically, if credit card companies are unable to collect on the debt from the cardholder’s estate, they often drop the debt. The reason for this is because relatives are not legally obligated to repay the debt of a deceased person. The exception to this rule is when an account was opened up as a joint account.

What is a joint account? This is when named individuals of the account are responsible for the debt, and the credit card company will be able to collect from either one of the parties. So, if one party dies, the other will become financially responsible for outstanding debt. When the person using the other card is simply an authorized user on the account, they are not responsible for the debt and when the account holder dies, the account must be closed. If the authorized user wishes to use credit, they will have to apply for an account on their own.

If someone passes leaving behind credit card debt, the estate executor must consider this and the potential outcomes. Estate administration will be necessary to review the details of each account before proceeding. While it may be uncomfortable to talk about debt, it is an important consideration for estate planning at all ages, and should be taken seriously.

Source: Boston.com, “What happens to credit card debt when you die?” Cheryl Costa, June 29, 2012

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ENTREPRENEURS SHOULD CREATE SOLID ESTATE PLANS

If you do not already know, estate administration is the process of collecting and managing one’s estate after death. Often, it is best to leave behind a clear and concise plan. For entrepreneurs in Texas, it is especially important to leave a good plan for family, friends and the people in charge of estate administration. Therefore, assets can quickly be divided and debts paid. While estate planning is often the last thing on a busy entrepreneur’s mind, leaving an estate untended can bring about financial and emotional problems.

If you are in charge of finances and run day-to-day operations within the business, your spouse should also understand business operations and finances. Many company owners fail to realize the impact that having a business can have on families once they are gone. Many people prefer the stake in their company to pass to business partners, but if this plan is overlooked in estate documents and preparations, one’s investment in a company can land on a spouse. Ensuring a buy/sell agreement is in place can help avoid this problem. Such agreement can detail plans about the business and how shares should be sold.

Also, if you own a business, you probably want to protect your assets, which you have earned from operating the company. An irrevocable trust can be an important tool to help protect assets from creditors. These types of trusts act as “protective housing” for someone’s assets and also give the grantor tax relief while transferring assets to the trust.

Proper estate planning can offer those in charge of estate administration a sense of relief when having to manage the estate. It can also help protect financial assets, avoid issues with ownership of any businesses and also provide heirs with the inheritances they deserve.

Source: Forbes, “Preparing For The Inevitable: 3 Keys To Estate Planning For Female Entrepreneurs,” Judith Schreiber, June 13, 2012

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GRANNY SNATCHING: GUARDIANSHIP PROBLEMS

Some Texas residents may have heard of the elderly abuse called “granny snatching.” This has been in the news and states are beginning to consider new laws to prevent this abuse from occurring. The practice of granny snatching involves feuding families that are trying to seek control of an elderly relative. One relative may have guardianship over the relative; however, when the elderly person visits another state, another family member may try to snatch guardianship away. Estate administration means many things, but sometimes it can involve caring for elderly relatives during the end of their lives.

Recently, there have been several cases of granny snatching in the United States, and unfortunately, some people who have sought to strip guardianship rights away from others have been successful. These battles can deplete an elderly person’s estate and lead to long and costly court battles. A new bill proposal would help states network with each other to recognize guardianship laws in other states, potentially preventing this practice.

The proposed law, which is currently being considered in New Jersey, would provide jurisdiction over the elderly person in the event a disagreement occurs between relatives about the state with the proper authority. This bill would define the person’s home state as the place where the individual has been living for the past six months, consecutively. Passing this bill would allow states into a network of states with the same law that could protect elders from feuding family members.

Currently, this bill is being considered in the state of New Jersey but since 2007, the District of Columbia and 31 other states have passed this law. If a person under guardianship moves states and both states have recognized this law, it could prevent a full out court proceeding concerning guardianship. Estate administration sometimes involves complexities concerning members of the family in addition to members that have passed. With this law, trusted members of a person’s family can stay appointed as a rightful guardian and reduce costly court battles for families in conflict.

Source: NJ Spotlight, “New Jersey Considers Law to Prevent Granny Snatching,” Beth Fitzgerald, May 21, 2012

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THE KING OF POP AND PEPSI TEAM UP AGAIN

Texas Michael Jackson fans may remember when the King of Pop and Pepsi teamed up for a commercial that went horribly wrong. A technical problem ignited Jackson’s scalp on fire, resulting in second degree burns. Nevertheless, in a strange estate administration decision, his estate and the drink company have once again combined forces to use his image on special edition Pepsi cans. While it may seem like an odd pairing after a rocky history together, it could become a profitable estate administration decision; his estate stands to make a lot of money for the use of his image.

For the new deal, Pepsi will use ‘silhouette imagery’ of the pop icon on their limited edition cans. They will also sponsor contests to give fans across the world an opportunity to win Michael Jackson memorabilia.

This icon rose to superstardom once he went solo and currently has the best-selling music album in history, Thriller. Jackson passed away in 2009 at the age of 50. This new deal will likely bring in money for Michael Jackson’s estate, and it could signal the beginning of many other deals using the pop legend’s likeness. Savvy estate administration appears to be the reason for this new deal.

Ultimately, those planning their estate may want to ensure someone responsible and unbiased is in charge of administration. Although it is unlikely that most individuals will obtain the level of stardom that Michael Jackson did, it is still important for people in the public eye to maintain their image even after they pass away. Ensuring a trustworthy party is slated to oversee one’s affairs can ensure the continued prosperity of an estate.

Source: BostonHerald.com, “Michael Jackson’s estate, Pepsi team up for Bad anniversary,” Ira Kantor, May 4, 2012

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MAJOR LEGAL CONTEST OVER WOMAN’S WILL

A national case might encourage Texas residents to ensure their estate planning documents are in order. Specifically, a copper heiress’ will is being contested in court by angry family members. The woman’s last will came in April of 2005 and left the majority of her fortune to charity and over $30 million to one of her private nurses. A will signed six weeks prior to the April document left her vast wealth to be divided among 20 of the woman’s great-nieces and nephews.

In 1991, a friend sent a doctor to visit her and found her living in a dirty apartment that was lit only by a single candle. The woman was also suffering from skin cancer and her face had been ravaged by the disease. The woman was admitted into the hospital. Although her health continued to improve after that, the woman refused to return home, instead choosing to be stay at the hospital. The woman was known to be extremely reclusive in the last 20 years of her life and she surrounded herself with private doctors and nurses. In return for their care, she showered them with gifts and lavish amounts of money.

A legal battle begins as the family is now contesting the will and seeking the return of all of the gifts she gave, including a painting donated to the hospital where she lived and also a donation to a Washington art gallery. In all, they are seeking to reclaim $37 million worth of gifts, even though the woman’s estate is valued at a massive $400 million. While the family is attempting to portray the woman as someone who had been taken advantage of, the recipients of her gifts describe her as an independently minded woman who was very generous.

So far, no one has been charged with any crimes and everyone involved in this situation has denied any wrongdoing. Many believe the woman was merely generous and chose to reward those who cared for her. This case may serve as a strong suggestion for individuals to ensure their estate planning documents are in order before their deaths. While it won’t always prevent squabbling families, it can help ensure one’s last wishes stand up against the scrutiny of a court.

Source: Yahoo! News, “Copper heiress’ huge gifts spotlighted in NY court,” Jennifer Peltz, June 17, 2012

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STAKES IN ROSA PARKS’ ESTATE RETURNED TO FRIEND, INSTITUTE

A $10 million collection of memorabilia that belonged to civil rights icon Rosa Parks will return to the control of the institute that bears her name and the friend Parks asked to help administer her estate after she died. A recent decision by the Michigan Supreme Court overturned an appellate court ruling that the trustees of the estate were rightfully stripped of their authority over an alleged confidentiality breach.

According to an attorney representing the friend and the Rosa and Raymond Parks Institute for Self-Development, a probate judge put a pair of attorneys in charge of Parks’ estate after she died in 2005. In administering the estate, the attorneys allegedly ran up excessive fees for themselves and convinced the judge to strip the institute and the friend of control of Parks’ memorabilia collection and rights over her name.

The friend and the institute appealed the decision, but the appellate court upheld the probate court’s decision. They further appealed to the state supreme court, which on Dec. 29 reversed the lower court’s ruling. Neither the institute nor the friend had violated a confidentiality agreement, so there was no basis to take ownership of the memorabilia away from them, the court said.

The collection is believed to be worth up to $10 million. An auction house is currently seeking a buyer.

Parks is best known for a 1955 incident where she refused the orders of a bus driver in Montgomery, Alabama, to give up her seat to a white passenger and move to the back of the bus, as required by the state’s Jim Crow laws. Her civil disobedience and subsequent arrest led to the famous bus boycott by black citizens of the city, which eventually led to the end of segregated busing in the city.

Source: Detroit Free Press, “Rosa Parks estate ruling overturned; institute regains financial stakes,” David Ashenfelter, Dec. 30, 2011

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