Fong Law Group

Can I Challenge My Mom's New Trust Based on Undue Influence?

I have received this question from a reader: What can I do if I believe that my brother used undue influence on our 95-year-old mother to get her to amend her trust? He took her to a lawyer to change the original trust, which split everything evenly between my brother and me. The new trust now goes to him and then to his kids. My mother began experiencing dementia three years ago. Before this, she always treated everyone in the family equally. He also had her sign a power of attorney and hasn’t let me see or speak to her for two years.

You can certainly challenge the new estate plan. The question is whether it is easier to do it now or after your mother’s death. To do it now, you would probably need to seek a conservatorship over your mother. This would likely be very expensive, but it would help you preserve the evidence of your mother’s weakened cognitive ability and your brother’s influence over her. The other approach is to wait until after your mother passes away and then challenge the trust through your mother’s estate by asking to be appointed as her personal representative. While the trust is not a probate asset, as personal representative you would have standing to question the recent change. You may also have standing as a beneficiary of the original trust. This also is likely to be an expensive, difficult litigation. One potential advantage of pursuing the case after your mother’s death is that it would be easier to find a lawyer who would take the case on a contingency basis, at least if there’s enough at stake to make it worth the lawyer’s effort.

Celebrity Estate Battles Provide Valuable Lessons on Estate Planning

“Wicked stepmothers are the stuff of Grimm’s fairy tales. Widowed stepmothers are the root of real-life inheritance wars.”

The biggest issues in inheritance battles stem from Alzheimer’s disease, widowed stepmothers and estate crime. Certain issues, like signs of dementia, questionable asset transfers and sudden changes in investment risk profiles are sure signals that something is going on, reports Think Advisor in the article “What the Nastiest Celebrity Estate Battles Can Teach Advisors.”

If regular family fights feel like civil wars, then celebrity battles elevate the conflicts into global meltdowns. Showbiz legends like Tony Curtis, Mickey Rooney and Jerry Lee Lewis serve as perfect examples.

Rock and roll legend Jerry Lee Lewis’s seventh wife (yes, seventh) and his third wife’s daughter have been in court for nearly two years. The wife has charged her stepdaughter with financial and physically abusing the singer, who is now 83. The daughter countersued, alleging that her stepmother was drugging her father into an incoherent state. Lewis recently had a stroke, and he was admitted to a rehab facility.

What can families do about elder abuse, which the American Bar Association has called the “crime of the 21^st century?”

Pay attention. Over the next 30 years, as much as $30 trillion in Baby Boomer assets will be transferred to the next generation. The number of people getting older is taking a huge leap and so will the number of people who suffer from cognitive-related diseases.

Know what an “estate crime” is. This is the term to describe the unauthorized, unlawful taking of someone’s assets, while they are alive. It’s what happens when a personal representative, such as a trustee, suppresses assets and takes them. It’s more likely to occur when an entrepreneur or business owner keeps a lot of cash in the safe. That money mysteriously vanishes at their death. Therefore, if anyone has a lot of cash around, they need to be able to prove it and give that documentation to someone they trust.

What happens when a person’s family is involved in litigation and they are incapacitated? Attorneys will look for transfers that occurred just prior to the time the person became incapacitated. Would they be the result of undue influence or pressure? What about their estate documents — were they changed near the time the person became seriously ill or when they were near to death? Medical records and doctors’ reports become important in these cases.

What happened to Tony Curtis, romantic and comic leading man? A year before he died, Tony Curtis wrote a new will and revised his trust. He disinherited his five surviving children and left his entire estate worth $46 million to his sixth wife. The children, who include actress Jamie Lee Curtis, filed a suit claiming that their father was mentally impaired, but the case was dropped. It’s possible that the suit was settled confidentially. Any time there’s such a big change before death, expect litigation.

Why do so many famous people seem to die without a will? People don’t like to think about death, so they procrastinate. It’s that way for celebrities and for regular people. However, we read more about celebrities. Estate planning attorneys are the ones who see what happens, every day, when people don’t have wills and the family is faced with estate battles.

What’s the solution? It’s not that complicated. Find an estate planning attorney that you are comfortable with and draw up an estate plan. Make sure you have a will, power of attorney and health care power of attorney. Talk with your family about your intentions for distribution of your property and make sure that every few years, when events occur in your life or when laws change, you update your estate plan. That would save many people, famous and otherwise, from devoting time and money to cleaning up after their loved ones.

Reference: Think Advisor (March 27, 2019) “What the Nastiest Celebrity Estate Battles Can Teach Advisors”

 

 

Still Working but Coping with Early Stages of Dementia

“Sharing a dementia diagnosis is a challenge facing thousands of Americans.”

There are many factors to consider when you’re still active in the workforce but have received a diagnosis of dementia. How has your job performance been affected? Have you been able to devise a system for maintaining your performance levels, or are you not able to safely proceed with the tasks of your job?

For a neurosurgeon, early stages of dementia would probably require an immediate end to their career. However, someone in a less demanding occupation, might be able to figure out a way to continue working. The situation is never easy, explains Next Avenue in the article “Dementia Diagnosis: When Do You Go Public?”

In one case, a man who was diagnosed at age 58 with minor cognitive impairment had found workarounds but knew that he was heading into dementia. He shared his information with his employer, colleagues and professional acquaintances, as well as his large family, which includes a nearly 90-year old father. Not everyone can have these conversations, and few are ever prepared for them.

According to the Alzheimer’s Foundation, 200,000 Americans have the early onset variation of Alzheimer’s, meaning they are 65 or under when they start having symptoms. Another 5.7 million Americans who are 65 or older live with Alzheimer’s.

The director of palliative care and medical ethics care at New York University, Dr. Hamilton, has delivered the bad news to hundreds of patients. She says that most of them are not surprised with the diagnosis. They are scared and worried, but rarely surprised. She believes that the rewards outweigh the risks, when it comes to sharing this news, and that families live with less uncertainty when everyone knows what has happened. This knowledge allows the family to move forward with practical planning.

The first step is to get legal and financial matters in order. That means an estate plan, including a health care directive and a Power of Attorney for financial matters and a health care proxy to make decisions, when the person no longer can do so themselves.

It’s a scary conversation to have with employers. It may be that the federal civil rights law, the Americans with Disabilities Act (ADA) prohibits discrimination and requires employers to make “reasonable accommodations” for employees with disabilities. However, this isn’t always what happens.

Dr. Sujatha Hamilton says that many people today need to work past age 65, and disclosing their illness is helpful, if their employer can have their duties modified or their schedules restructured. They are more likely to be terminated or forced into retirement, if their employer does not know why things are going wrong, when their performance starts to suffer.

As part of planning for a next stage of life after a dementia diagnosis, care directives and estate plans may need to be revised. Your estate planning attorney will be able to help make the changes to the estate plan and what plans need to be made for long-term care, as the disease progresses.

Reference: Next Avenue (Feb. 4, 2019) “Dementia Diagnosis: When Do You Go Public?”

You Can Avoid Elder Financial Abuse, but How? 你可以避免老人經濟虐待，但如何？(中英對照)

“While a longer life is a good thing, it will also present challenges – and unfortunately, sometimes financial predators.”

The prospect of a long, healthy and active life is a wonderful thing to consider. However, one in 10 seniors have suffered financial abuse, according to The Kansas City Star’s article “Five ways to avoid elder financial abuse.” The grandson of Brooke Astor spoke at a conference about how his grandmother’s last years were spent living in squalor, as a result of her son and guardian stealing from the estate and cutting the amount of money available for her care. The grandson and his brother sued their father to protect their beloved grandmother, a leading philanthropist and one of New York’s high-profile society figures.

However, elder financial abuse is not limited to the super wealthy or socially prominent. One report noted that one in ten seniors suffers some form of financial abuse.

Why does this happen?

As we age, our brain also ages making us more susceptible to making poor decisions. Even high-functioning retirees with no outward sign of dementia, find it harder to distinguish safe investments from risky ones. The probability of dementia also rises as we age: only 7% of people over 60 have dementia, but nearly 30% of people over age 85 have some degree of dementia.

Here are some suggestions to minimize the likelihood of financial elder abuse:

Communicate. Talk with your loved ones on a regular basis, so you know how their health is and what they are doing. If they don’t want to talk about money, you can start the conversation by sharing something about your own situation. Remind them about safe practices like shredding receipts, bills and account statements. Remind them not to open emails from people they don’t know and not to give their Social Security number or account numbers on the phone or online to people they don’t know.

Stay involved. Know how your loved ones are spending their time and money, by staying involved in their lives. If they are hiring people to do work on or in the house, know who those people are and check their backgrounds. Get to know their home healthcare aides. Review their bank statements to ensure no unusual activity is taking place. If you see that they are starting to decline, offer to take over tasks for them.

Check and balance. Make sure that the correct estate planning documents are in place to allow trusted family members to help, if the need arises, such as power of attorney and medical directive. Divide up responsibilities; consider having one person in charge of bank accounts and another in charge of investment accounts. Trade responsibilities every few months.

Have a relationship with their professionals. Attend meetings with their estate planning attorney and their financial advisor. If there is any hesitation on the part of the professional, push back: any qualified estate planning attorney or financial advisor or CPA should welcome family involvement.

Streamline accounts. Fraud is harder to see, when there’s money in multiple financial institutions with multiple advisors and life insurance policies from several different brokers. Spend the time to do a complete inventory of all accounts. If you can, consolidate accounts.

Reference: The Kansas City Star (Sep. 8, 2018) “Five ways to avoid elder financial abuse”

“雖然長壽是一件好事，但它也會帶來挑戰 - 不幸的是，有時也會帶來財產掠奪者。”

長壽，健康和積極的生活前景是一個值得思考的好事。然而，根據 The Kansas City Star的文章“Five ways to avoid elder financial abuse”，十分之一的老人正遭受經濟虐待。Brooke Astor的孫子在一次會議上發表講話，談到他的祖母過去幾年如何生活在惡劣環境中，她的兒子和監護人偷了她的資產並減少用於照顧她的錢。這位孫子和他的兄弟起訴他們的父親，以保護他們心愛的祖母，她是一位慈善家先鋒和紐約一位備受矚目的社會人士。

然而，老人的經濟虐待並不僅限於超級富豪或傑出人士。一份報告指出，十分之一的老人遭受某種形式的經濟虐待。

為什麼會這樣？

隨著年齡的增長，我們的大腦也會退化，使我們更容易做出糟糕的決定。即使是沒有癡呆症跡象的高能力退休人士，也很難將安全投資與風險投資區分出來。隨著年齡的增長，癡呆症的概率也會上升：60歲以上的人中只有7％患有癡呆症，但85歲以上的人中有近30％患有某種程度的癡呆症。

以下是一些建議，以盡量減少老人經濟虐待的可能性：

溝通  定期與您的親人交談，讓您知道他們的健康狀況以及他們正在做的事。如果他們不想談論金錢，你可以通過分享一些關於你自己的情況來開始。提醒他們關於撕碎收據，賬單和月結單的安全做法。提醒他們不要打開他們 陌生人的電子郵件，也不要在手機或網上向他們陌生人提供社會安全號碼或帳號。

保持參與  透過保持參與去了解親人是如何花時間和金錢。如果他們正在僱用人在家里工作，要知道那些人是誰並查他們的背景。了解他們的家庭醫療助理。查看他們的銀行月結單，確保沒有發生異常動靜。如果您發現它們開始下降，請接手管理。

檢查和制衡   確保制定正確的資產規劃文件，以便可信賴的家庭成員在需要時能幫助，例如財務授權書和醫療授權書。分工負責;考慮讓一個人負責銀行賬戶，另一個負責投資賬戶。每隔幾個月交換一次。

與專業人士建立關係   與他們的資產規劃律師及其財務顧問一起參加會議。如果專業人士有任何猶豫，請挻回去：任何合格的資產規劃律師或財務顧問或註冊會計師都應該歡迎家庭參與。

簡化帳戶   當錢在多個金融機構中, 而金融機構中有多個顧問及人壽保險單來自幾個不同經紀時，欺詐就更難看到了。花點時間去完成所有帳戶的完整清單。如果可以，合併帳戶。

參考: The Kansas City Star (Sep. 8, 2018) “Five ways to avoid elder financial abuse”

An Occupational Living Will

A doctor who specializes in dementia has an idea for an advanced directive. It is designed to ensure that he does not continue working, when he is no longer able to do so, as effectively as he did when he was younger.

When we think about people who suffer from dementia, we think about people who have retired. We do not often think about the people who are still working but who have started suffering from cognitive decline. However, almost everybody has likely had an older colleague at some point, who seemed to slow down and make more mistakes in a professional setting.

This can be a problem for the older colleague, who might get embarrassed when corrected by younger people. It is also a potential problem for the younger people who might need to cover for their older colleague.

A doctor who specializes in dementia recently wrote about a possible solution to this problem in the Washington Post in an article titled "Reflections of a dementia specialist: I want to stop working before I embarrass myself."

The idea is to create an occupational living will. This is a document that sets out certain signs requiring the affected doctor to take on fewer responsibilities and to eventually stop working completely. The document is tailored to his specific situation.  However, other people can do the same thing for themselves. The document is then shared with trusted colleagues and loved ones, who can inform the doctor when it is time to retire.

This occupational living will does not have legal effect.  However, it might still be a good idea for people in all professions who want to retire, before they tarnish their legacy by working past the time they are able.

A living will is a document that allows you to determine in advance under what circumstances you do not want to receive medical care.  An occupational living will allows other people to make an informed judgment whether you should continue to work.  If you need help with these documents, an estate planning attorney will be more than glad to work with you. 

Reference: Washington Post (April 15, 2018) "Reflections of a dementia specialist: I want to stop working before I embarrass myself."