Old Pueblo Legal Observer

Definiting the Persistent Vegetative State

By Elizabeth D. Spilotro

In preparing a full estate plan for clients, we always walk through the process of drafting health care powers of attorney and living wills to be prepared for the possibility of a medical crisis in which the patient/client is unable to speak for himself, and to direct loved ones how to proceed when the patient/client is facing the end of his life. The standard language directing doctors to provide “comfort care” or avoid “artificially delaying the moment of death” with which the medical community is most familiar usually makes sense and feels appropriate for most people. The challenge for many clients lies in understanding and feeling comfortable with what it means to a doctor that a person is in an irreversible, incurable, or persistent vegetative state, presenting a scenario in which the directed action should be taken.

A client told me about the JFK Coma Recovery Scale, a 23-item assessment tool to assist doctors with developing diagnosis, determining prognosis, and planning treatment for patients suffering from brain injuries. This scale is widely accepted in the medical community in discerning differentiating states of consciousness, and for accuracy in identifying varying states of awareness. A study referred to in The Economist indicates that many neurologists prefer to rely on their intuition rather than a scale in determining degrees of awareness and cognition among clients, which in a notable number of cases may result in inaccurate diagnoses.

A directive to doctors to use this scale may provide greater peace of mind to clients trying to be prepared for the wildly unexpected and wanting reassurance that the most clear and reliable diagnosis has been made. On the other hand, this scale may determine that a patient is “minimally conscious”, rather than in a “persistent vegetative state”, and thus in a condition that may only marginally improve with rigorous and extensive rehabilitation. Many clients may not feel that the improvement that might be achieved would render their life desirably livable, and might prefer to pass on quickly rather than linger in a compromised medical condition.

Regardless of one’s personal wishes, the availability of this tool as an option to guide medical treatment is something all clients should be aware of and give some consideration to including in their advanced medical planning.

The Perils of DIY Estate Planning

By Elizabeth D. Spilotro

 

As an estate planning attorney, I am frequently asked (usually by social acquaintances) whether a “simple” will or other document generated by one of the DIY legal document websites isn’t “just fine” or “good enough”. The answer I give is often some variation on the “would you do your own dental work?” response, as you might expect. But here are a few reasons why:

• Anyone with minor children needs to be especially attentive to detail when establishing even the most simple estate plan. (Not that anything is simple when children are involved.) Aside from providing for the children’s guardianship in the event both parents pass away, a will also needs to set up the right vehicles to hold property for a child until he or she reaches adulthood. The plan needs to be clear, meet all the child’s possible needs, place decisionmaking responsibility in the right hands, and most importantly be as free of administrative hassles as possible. Errors in drafting could result in unforeseen complications requiring ongoing court involvement and/or unnecessary expense, or fail to meet all of a parent’s expectations (limiting the use of funds for a child’s benefit to a more narrow - or expansive - definition than the parent would have wanted, for example).

 

• Program-generated wills are about as customized as t-shirts at Target. While some people may not have a lot of complexity in their lives, most of the people I meet as clients and as friends aren't perfectly S/M/L/XL. What if you are divorced? Have a blended family? A family member who you want to get “everything”, or nothing? Own an ongoing business? Aren’t married to your life partner? Or love someone who needs to be protected, whether from themselves or others?

 

• DIY programs often result in documents that get partway there, but then fall just a wee bit (or more) short. For example, I have seen wills that do not include any provision regarding what is to happen if none of the named beneficiaries survive. I have also seen trust documents (single page, 6-point font) that recite an assortment of administrative powers and obligations of the trustee, but have no provisions at all for distributing funds to anyone.

 

• Drafting a legal document properly is only a small part of the process of establishing an estate plan. Putting that document to work  - the right way – requires a significant amount of expertise and guidance that you aren’t going to get from a blank office supply form, or your faceless friend the Internet. The more property is involved, the more assistance you need. And as time passes, laws will change, as will aspects of your personal life. A professional will help you stay on top of how life and the law impact each other to ensure your plan still makes sense.

Horror stories abound about estate plans gone awry when individuals try to do their own legal work. (Google “dangers of do it yourself wills and trusts” and you’ll get almost 4 million hits.) These stories range from estate plans that didn’t accomplish everything the settlor intended, to scenarios in which the plan did everything the settlor most wanted to avoid. These are obviously the worst-case examples, but they happen to people of both significant and modest means, and the consequences can be dire in either case.

Often, the most valued benefit of a properly drafted estate plan is the most intangible one: peace of mind. Every caring person wants and needs to know that they have done everything they can to ensure that those they love will be okay if the worst happens. You can’t buy that peace of mind online for $19.99.

Happy Birthday, Dr. Seuss

Karp & Weiss was proud to sponsor the recent presentation of Seussical, The Musical at St. Michael's Parish Day School. In honor of Dr. Seuss' birthday today, we give you some thoughts on what to do when Life gets your goat.

NLRB Union Notice Requirements Delayed Again

 

by Marian C. Abram  

Late last year, the National Labor Relations Board’s (NLRB) announced a new rule mandating that all employers post a notice advising employees of their “union” rights under the National Labor Relations Act (NLRA).  Originally, the NLRB Notice Posting Rule was to become effective November 14, 2011. It was then extended until January 31, 2012.

Just recently, the NLRB agreed to postpone the effective date of this Notice Posting Rule at the request of the federal court in Washington, D.C., which is hearing a legal challenge regarding the rule. In its press release, the Board stated that it determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges filed pertaining to the rule. The new effective date is now April 30, 2012.

Employers objecting to the new rule have argued that it exceeds the NLRB’s authority by extending the statute of limitations; is arbitrary and capricious under the Administrative Procedure Act; and violates the First Amendment.

The Board’s new rule will require that all covered businesses, union or not, post the “union” rights notice as of April 30, 2012.  Very few private sector employers will be exempt. 

Despite the repeated postponements, employers should consider being pro-active in the event the posting requirements are upheld.  Such action should include:

1. Update employee and/or policy manuals and address social media concerns;
2. Review your position on unions with employees and publicize your company’s approach to addressing grievances and employee workplace concerns;  and
3. Train managers and supervisors to identify union activity in its earliest stages and to respond lawfully to such activity.

 

Karp & Weiss Proud to Support the FC Tucson Desert Diamond Cup

Over four nights from February 22 to March 3, four Major League Soccer teams – the Los Angeles Galaxy, the New York Red Bulls, the New England Revolution, and Real Salt Lake – will descend on Tucson to compete in a round-robin tournament hosted by the FC Tucson Desert Diamond Cup. Karp & Weiss is proud to support FC Tucson, Tucson’s own United Soccer League Premier Development Team, and the Desert Diamond Cup.

The Desert Diamond Cup launches FC Tucson’s effort to develop a “Cactus league” soccer spring training series for Major League Soccer based here in Tucson. In spring 2011, FC Tucson presented the first Desert Cup, an exhibition series between FC Tucson, the Phoenix-based Arizona Sahuaros, Sporting Kansas City, and the New York Red Bulls. With barely a few weeks’ lead time, the Desert Cup drew more than 10,000 fans to Hi Corbett Field for an energetic weekend of professional soccer. Heading into this year’s Desert Diamond Cup, the hosts expect more than 50,000 fans and visitors will flock to Tucson, embracing Tucson’s newest “home team” and engineering momentum for soccer as a new economic and cultural engine for southern Arizona.

FC Tucson has currently invested more than $110,000 in converting the baseball diamonds at Kino Sports Complex into professional –level soccer fields. Sporting Kansas City and the San Jose Earthquakes are already in Tucson using Kino as a base for preseason training. The Desert Diamond Cup will be a chance for FC Tucson to prove to MLS that they can present a professional sporting experience, and that the wider region – comprised of southern Arizona and Sonora, Mexico – has the passionate fan base to support a spring training league based in Tucson. With the departure of Major League Baseball, the arrival of Major League Soccer presents a singular opportunity for Tucson to create its own sports – and economic – future.

For more information visit fctucson.com, or click here to buy tickets for the 2012 Desert Diamond Cup.

Adult Adoption as Asset Protection in a Wrongful Death Case?

It's not often that the issues of adult adoption, estate planning, DUI, and wrongful death intersect. But now here comes the case of John Goodman, charged with DUI and being sued for wrongful death by the parents of Scott Wilson, a 23-year-old who was killed when Goodman, whose blood alcohol level was twice the legal limit, ran a stop sign in his Bentley and crashed into Wilson's car.

Goodman, who estimates his net worth as "several hundred million dollars", has revealed that this fall he adopted his 42-year-old girlfriend, which makes her a one-third beneficiary of the trust he initially established for his two children.

Discuss.

(FYI, this sort of adoption would not be permitted under Arizona law.)

Estate Planning Lessons from The Girl With The Dragon Tattoo

by Elizabeth D. Spilotro

The recent release of the American film version of The Girl With The Dragon Tattoo has brought renewed attention to the author, Stieg Larsson, his premature death, and the subsequent dispute over his estate.

Much like Mikael Blomkvist, the journalist protagonist of Dragon Tattoo, Larsson was also an investigative journalist well known in Sweden for coverage of right-wing extremism, and had been subject to death threats throughout his career; in fact, much suspicion clouded his death, which stemmed from a heart attack. Larsson’s three novels that make up the Millennium series were published posthumously and have since become bestsellers and launched both Swedish and American film adaptations.

Larsson was involved in a longtime relationship with Eva Gabrielsson, a fellow journalist he never married, ostensibly due to the fact that Swedish law requires public release of addresses and other personal information which the couple felt would put them at risk of harm. After his death, a 1977 self-made will (called a “holographic will” in the US) was found naming the Socialist Party as the beneficiary of his estate, but as the will was not properly witnessed in accordance with Swedish law it was declared invalid, resulting in the entirety of his estate going to Larsson’s father and brother, from whom he had been largely estranged.

Despite having cohabited with Larsson for the 30+ years of their adult lives, Gabrielsson was excluded from his estate entirely. She continues to challenge the family’s decisions in disseminating Larsson’s work, and is in possession of his laptop computer which supposedly contains a nearly-complete fourth novel that Gabrielsson has indicated she would be capable of finishing on Larsson’s behalf. She has written her own book, “There Are Things I Want You To Know” About Stieg Larsson And Me, which chronicles her struggle with grief as well as her ongoing fight with Larsson’s family to secure the rights to control Larsson’s work. She was offered a substantial cash settlement by the family, which she declined.

While the circumstances at play here are extreme and some elements of Swedish law unique, there are lessons to be learned from the sad story of Stieg Larsson. First, anyone in a committed relationship who wishes to provide for their significant other must seek the assistance of an attorney to ensure their intent is accomplished. Second, holographic wills may be purport to be “simple estate planning”, but the requirements of executing one successfully are not, and vary state by state. While Mr. Larsson may not have anticipated that his estate would end up amounting to much, he would have been better served by professional assistance in ensuring his wishes were met and unanticipated consequences avoided. There’s nothing simple about resolving an estate plan that goes awry.  

Who Gets The Cadillac?

by Marian C. Abram

So, you own a car or truck and want your favorite nephew to get it when you are gone.  You could place your nephew on the title to the vehicle now – “You AND Your Nephew”, but that may not be possible (or advisable) if the title is held with the car loan creditor.  You could mention the vehicle in your will, i.e., “The 1975 Black Cadillac Sedan to my favorite nephew.”, but if your estate is valued high enough, then the transfer must be done through probate.

If your estate is not valued sufficiently high to require probate, the answer has been to your nephew to present an affidavit to the Motor Vehicles Division under Arizona statute 14-3971.  However, this provision limits the value of all personal property to $50,000.  So if your savings and checking account are also given to the nephew and the value of the accounts and the Cadillac is greater than $50,000, your estate must be administered through the probate court.

Now, there is a new statutory solution available.  Under Arizona statute 28-2055, you are able to complete a beneficiary form and attach it to the original title in your possession.  Then, when you are gone, your favorite nephew need only present the title with the attached form and an original death certificate to the Motor Vehicles Division to transfer ownership without going through probate and without being subject to the $50,000 limit.

 This strategy may not be for everyone, however, so please contact Marian Abram or Elizabeth Spilotro at Karp & Weiss to see which option is best for you and your favorite nephew.

Year-End Gift Opportunities

by Elizabeth D. Spilotro

As 2011 comes to a close, consider three options to reduce your overall estate and minimize tax impact:

• The 2011 annual exclusion gift amount remains $13,000 for individuals ($26,000 for married couples filing jointly, using gift splitting). This means you can gift up to that amount to anyone and as many people as you wish. Annual exclusion gifting is a nice way to remove assets from your estate and pass them to your loved ones.
• Keep in mind that direct payments made for medical and educational expenses do not count as gifts. Paying for a grandchild’s braces or school tuition (at any level) can be a nice way to reduce your estate and ease financial pressure for family members. Note: you have to make the payment directly to the medical service provider or the educational institution!
• Tax provisions permitting direct charitable gifts from IRAs are set to expire on December 31, 2011. If you are 70 ½ or older, you can direct your IRA custodian to make a direct gift up to $100,000 to a qualified charity (generally a public charity). You will not receive a charitable deduction for the donation, but the contribution will count toward your required minimum distribution, but the distribution will not count toward your annual income. In other words, redirecting part or all of an IRA distribution that you are required to take but don’t actually need can benefit a charity of your choice as well as your tax bill.

Risks of Fraud in International Adoption

 

 

By Elizabeth Spilotro, Esq.

Earlier this summer, a Guatemalan court ordered that a six-year-old girl who had been adopted four years ago by a Kansas City couple be returned to her home country on the grounds that her adoption was fraudulent. The court order is a first among the many disturbing tales of unresolved abuse and corruption in the international adoption market, and has sent a chill through the community of adoption professionals and prospective adoptive parents in the United States.

Many couples seeking to establish or grow their families are drawn to international adoption as a means to provide an orphaned or abandoned child living in unstable, often third-world circumstances the chance to thrive in a welcoming, stable, and first-world family environment. Sadly, though, the “marketization” of adoption, especially in corrupt third-world countries, has meant that unscrupulous individuals seeking to profit off this scenario have constructed often-elaborate schemes to traffick children who, in too many cases, are not actually orphans or abandoned in the first place.

As a result, the avenues to adopt in popular sending countries such as Ethiopia and Cambodia have dramatically contracted, countries such as China and the Ukraine have implemented extensive new requirements of prospective adoptive parents, and adoption from Guatemala has been at a halt since early 2008 while reforms can be implemented. The risks, delays, and uncertainties of international adoptions, coupled with their often prohibitive financial costs, are leading increasing numbers of American couples to look again at building their families through domestic adoption.

Whether an adoption is sought abroad, across the country, or locally, the single element that can best counter the risk of disruption is quite simply the ethics of all parties involved. Seeking the advice of trustworthy and competent professionals at every stage of the process is a prospective adoptive couple’s best bet to successfully grow a “forever family”.