The Love Dance of Arbutus and Lyle

Arbutus

In the woods of Keewenaw County, Lyle married Arbutus and they operated a little shop together. Lyle took a job with the park service which took him away from home for periods. In time, Lyle began having an affair with Susan.  Lyle and Susan carried on for years while Arbutus and Lyle were still married. When Lyle was with Arbutus, she accepted him notwithstanding her knowledge of his relationship with Susan.  Whether she was “ok with it” or not isn’t clear, but this was their life, their love.  In his later years, Lyle moved in with Susan.  For awhile after moving in with Susan, Lyle occasionally visited Arbutus, and she still accepted him back when he did.  But ultimately Lyle stopped coming by, and Arbutus made no effort to visit him at Susan’s home or otherwise contact him – even though she knew where they lived.  Neither Lyle nor Arbutus ever initiated divorce proceedings.

That’s the story in a new published probate case called Estate of Lyle Seth Peterson. Click on the name to read the case.

Coincidentally, in a recent post, “Messy Inheritance Case Makes Fun Reading,” we looked at the law regarding the rights of absent parents. This case is about the rights of an absent spouse.  Both cases remind us of the difficulties that arise when the law attempts to impose moral judgments in the context of probate law.

Michigan law provides that even if one spouse (the spouse who dies) has “cut out” the other spouse via their will, that surviving spouse can, notwithstanding, get a big chunk of the deceased spouse’s estate by “electing against” the will. So the law is that, at least with a will, it ain’t easy to cut out a person you are legally married to when you die. However, the statute at issue in this case [section 700.2202(2)] says that a spouse loses their ability to “elect against” the will if “any of the following” are true for at least one year before the death of their spouse:

(i) Was willfully absent from the decedent spouse.

(ii) Deserted the decedent spouse.

(iii) Willfully neglected or refused to provide support for the decedent spouse if required to do so by law.

In this case, there is no question that for more than a year prior to Lyle’s death, Lyle was living with Susan and had no contact with Arbutus, even though Arbutus knew where Lyle was.

The trial court says, Arbutus still was a surviving spouse because the evidence shows she would have accepted Lyle back if he had chosen to come around; and therefore she wasn’t “willfully” absent. Rather, only Lyle chose to be absent, and Arbutus just let him have his way. Essentially the Court of Appeals upholds the trial court with slightly more nuance to their rationale.

Let’s not kid ourselves. This is about Courts not wanting to punish a wife who stood by her philandering man; or alternatively, Courts becoming uncomfortable passing judgement on an alternative lifestyle that a couple old Yoopers chose to live.  Either way, the statute says that either desertion or willful absence triggers the penalty, both are not required.  Yet clearly these courts have gone to great length to read the statue to conclude that because Lyle abandoned Arbutus and not the other way around, Arbutus was not willfully absent, which is to say that the distinction between “deserting” and “willful absence” is now meaningless.

So takeaways here are maybe (1) Courts often go to great lengths to read the law in a way that allows them to grant the relief they think is fair; (2) Life and love are complicated things, and simple legal rules and definitions designed to capture moral conduct are inherently flawed.

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This is My Rock

cave rock

Thoughts About Social Justice and Estate Planning

Close your eyes and imagine somewhere, sometime a long time ago – someone stood up and said “this is my rock.” I’m guessing that the reaction of those around him/her was: “WTF is this person talking about?”

Little did they know what was coming.

Now many thousands of years later, first semester law school, we study Property 101. The artificial construct that an individual human can have rights in a thing, has grown into an elaborate set of laws and beliefs that provide foundations for essentially all the cultures throughout the world.

[Aside: While the Communist may argue that the idea of individual ownership is wrong, they still would support the proposition that there are rights that groups of people – the community – have with respect to property. And that concept, while different, is equally unnatural/man-made. In nature, there is no “ownership” at all.]

Second law school class is Real Property law. Someone said: “This is my space.  From here to there, you can’t come on it without my permission, and all the rocks and trees and stuff that are in this space belong to me too.”  Different, but in many ways the same as Property 101. Later comes Intellectual Property – same thing with some nuances.

In the end, through these classes we learn how property rights of all sorts can be sliced and diced, licensed, leased, conveyed, secured and sold, held in individual names, joint names, business entities and trusts; that equitable title can be segregated from legal title, and on and on. We’ve come a long ways from “This is my rock.”

And this concept of property ownership has led to a fantastic explosion of capital under the control of, and for the benefit of, humanity.

The idea that someone can own something has magnificently served humanity to incentivize people to find and improve things. If I fashion this rock to be a better tool for skinning deer, I can skin deer faster and then I will have more time to hunt and in the end I will get more food.  Later came the division of labor: If I work all day making good tools, I can trade them for fish and meat with people who use my tools and spend all their days fishing and hunting.  And on and on until, today:  If I sit in this office and calculate these numbers all day, when I get done with work I can get a new mattress, and have my nails manicured.

The Place of Estate Planning.

Once we accept the idea of people having property rights in things, the next question is: “Ok so we agree this is your rock.  But when you die, what happens to the rock?”

The options would be:

  1. It goes back to the community.
  2. It goes to someone genetically related to you, maybe with a requirement about their gender.
  3. It goes to whomever or whatever you want.

Older cultures, some of which are still operational, largely focus on #2 – it goes to your family, maybe the oldest male member.

Our society has developed a system that combines 1 and 3. We will let you say where some of it goes, but some of it comes back to the community at your death – the federal estate tax.

Remembering that the construct of property rights exists because it is beneficial to society in that property rights incentivize productivity, the question becomes: (1) Is letting you have the rock so long as you are alive, enough of an incentive to make you improve the rock; or, (2) If society sweetens the deal by giving you control over the disposition of the rock after you die, will you be sufficiently more productive during your life to justify the costs that society incurs by not terminating your rights in the rock at your death?

It’s not an easy calculation, and for whatever reasons, not a calculation that people seem to want to have a genuine conversation about.   What makes the calculation especially difficult is that by granting post-death control in property the cost to society is more than the financial loss from foregoing access to the property itself.  Rather, the more significant cost is the cultural impact of inherited wealth, of having a class of persons who are born into privilege.

To my way of thinking, capitalism is like nuclear power. Harnessed it provides amazing benefits to all.  Unbridled it can have disastrous consequences.  We want  capitalism because it unleashes productivity and creativity from which we all benefit.  But the byproduct of capitalism is a society with haves and have nots – wealth and opportunity disparity.  Balancing the good of capitalism with its harmful bi-products is difficult, but is very much an issue in the realm of estate planning.

It is one thing to accept the proposition that someone in your high-school class, who grew up in a house like yours, bought food at the same grocery store, and went to the same school; worked very hard, was gifted with abilities, or just got lucky and as a result now has nicer things than you. This is a cost that society bears for the benefits of capitalism.

It is quite another thing to know that there are people who have never had to apply themselves, but who will always be comfortable and who will be provided better education and more opportunities than you or those in your family; and who will live in areas where others like them live, and that among their exclusive groups will control opportunities that they will share only with one another. This is a cost that society bears based solely on the speculative proposition that creative and hardworking people may, at some point in their careers, stop being productive and creative because they have accumulated enough property to care for themselves, and there is no reason for them to continue being productive and accumulating wealth unless they are given the power to control the disposition of that wealth after their death.  To my way of thinking, a very speculative proposition.

But like the artificial construct of property rights, the idea of wealth disparity is so embedded in our culture that few people ever question its justification or origin. In fact, a majority of Americans consider the “death tax” unfair, while at the same time believe that wealth disparity is a major societal problem. There is a disconnect here.

Troublingly recent trends in the law have enhanced the ability of wealth to pass generationally without taxation. Changes in the federal estate tax law have dramatically increased the amount that passes tax free, while at the same time long held common law barriers (protections) to intergenerational wealth control, such as the rule against perpetuities, are being altered in states across the nation to further the ability to create “dynasty trusts” and other planning tools that seem to directly offend the sense of community interest in the estate planning process.

Let me offer one more visual to make the point – that point being that the costs of granting post-death property rights – the cost of generational wealth – are significant in the context of social justice – and are also deeply embedded in our culture.

Picture a stop light at which a well maintained newer model BMW is sitting next to an older mini-van with plastic replacing the missing rear window. Between the people in these two vehicles there are a whole lot of feelings flowing back and forth.  The BMW driver might imagine how horrible it would be to be seen in a minivan in that condition.  The BMW driver may feel pity or even guilt toward the driver of the van.  The van driver, who may be proud of having any vehicle at all when s/he is parked in front of his/her home in his/her neighborhood, feels something else: shame, perhaps anger, embarrassment, maybe a sense of inadequacy while in the presence of the driver of the BMW.  This vehicular expression of material wealth demands people make a judgment about each other.  That is the culture we created and that we endorse every day, presumably so that we can enjoy the benefits of capitalism.

To further the argument that this is a system that we intentionally perpetuate, picture a 7 year-old child in the minivan (fastened into an appropriate car seat). That child has no sense that the vehicle s/he is in is any different, better or worse than the BMW, and attributes no fault and passes no judgment on his/her parent (the van’s driver).  Ten years later, that child at age 17 would be mortified to be in this van.  Would feel shame and embarrassment, would worry that his/her schoolmates might see him/her, would feel anger toward his parent for making him/her feel this shame.

The evolution from the 7 year-old to the 17 year-old is not natural. It is a calculated cultural indoctrination that serves the purposes of capitalism.  A certain level of exposure to this toxin is necessary, and where the BMW driver is him/herself the wealth-creator, the dose may be tolerable in return for the benefits of incentivized productivity realized by the greater community.  But the decision to expose people to this harm beyond the level absolutely necessary should be carefully weighed.  I worry that we are currently out of balance, and only becoming more so.

My apologies. My mind wanders.  Things have been slow in the probate/elder law world.  Just thoughts.  Please don’t take offense.

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Ding Dong (My Take on the Future of the Legal Profession)

witch w yin

I don’t share the gloomy predictions of many of my colleagues about the future of our profession. The internet in general, and Legal Zoom type products in particular, don’t worry me.  While I agree that change is at hand, I don’t perceive that things will be worse when the sun come up again – certainly different – maybe better.

As I see it, the primary change agent impacting the legal profession isn’t the internet but rather the rise of “branding” in the way lay people identify professional services.

Consider the old-fashioned idea of religiously attending the local rotary meeting with a pocket full of business cards to drum up clients. You eat breakfast with the local jeweler, CPA and tackle shop owner.  Guest presenters talk about the importance of supporting the local economy.  But like everyone else in the room, and in your town, as fishing season approaches, you head off to Cabela’s; and when your taxes are due, you go the H&R Block.  You may be the best plaintiff’s lawyer in town, but if one of these people gets hit by a bus tomorrow are they are going to call you or “1-800 I’m Hurt”?

So that’s bad – right? Maybe.

“1-800 I’m Hurt” seems like a sleazy image of the future. I get that. But the concept of being a top of mind source for legal services is going to expand (has expanded) beyond the ads on the side of the bus.  It will become more sophisticated.  And sleazy or not, the change will come.  Main street is dead.   What may be currently underappreciated are some of the consequences of this change.  The yin to this yang is the way branded law firms are managed and how decisions are made.

In the current legal business environment, firms form and dissolve, as the “eat what you kill” business model pits partner v partner in a vicious unending cycle of self-centered cannibalism. Firms that survive long enough, create A partners, B partners, and compensation committees – put promising young lawyers through emotionally painful and soul-sucking tenures – and have heated meetings at which arrogant blowhard rainmaker types assert their dominance in tribal-like fashion.  Would ending this regime be so bad?

There are winners and losers in all change – and the losers in this new world will be the “eat what you kill” business model and the bloated rainmaker types. Ding Dong.

In the new age, power will still be disproportionately allocated. Those that own the brand hold the power.  But the committees and internal power struggles will be gone.  Law office managers will be looking for stability, competence and “can’t we all just get along” types to hire as the lawyers and other professionals who will become associated with the brand.  Quality of life will be more important on both sides of bargaining table, and by the nature of the business model, managers will be more right-brained, big picture types.

The winners in this new age are the intellectually engaged, emotionally stable, and genuinely friendly lawyers who can offer the brand managers the stability and competence they need.

For attorneys entering into the marketplace, success needs to be redefined. The long-established belief that “success” means “becoming a partner” will pass.  It has no meaning.  Brands can be bought, sold and franchised.  But brand ownership would not be an objective of most lawyers.  Rather, success in the future will be defined as finding a solid brand, managed by people you enjoy and trust, and then settling into a long career.

Things are changing, and the future is uncertain. From my way of thinking, there is more good than bad in the way the practice of law will evolve.

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Roush III: Missed Opportunity and Unintended Consequences

I posted twice before on the Roush case. Click here and here for the background.

In short, the issue in this case is: When a person who has previously created a patient advocate designation is deemed unable to make their own medical decisions by two doctors, then revokes that patient advocate designation, are that person’s rights to make their own medical care decisions (a) immediately restored or (b) suspended until a court decides whether they can make their own decisions or whether a guardian needs to be appointed to make those decision for them?

By implication, the Court of Appeals, in an unpublished decision, came down on the side of “immediately restored.” The losing party then sought review from the Michigan Supreme Court, which took the matter seriously enough to request that the Elder Law and Disability Rights Section of the State Bar file an amicus brief, which they did; as did other interests including the Michigan Elder Justice Initiative.  This past Friday (May 6), the Michigan Supreme Court denied leave to appeal, leaving the Court of Appeals opinion in place.  For the moment, at least, a win for the “immediately restored” camp.

Michigan’s patient advocate law is curious in that it expressly provides that:

… even if the patient is unable to participate in medical treatment decisions, a patient may revoke a patient advocate designation at any time and in any manner by which he or she is able to communicate an intent to revoke the patient advocate designation. If there is a dispute as to the intent of the patient to revoke the patient advocate designation, the court may make a determination on the patient’s intent to revoke the patient advocate designation. If the revocation is not in writing, an individual who witnesses a revocation of a patient advocate designation shall describe in writing the circumstances of the revocation, must sign the writing, and shall notify, if possible, the patient advocate of the revocation. If the patient’s physician, mental health professional, or health facility has notice of the patient’s revocation of a patient advocate designation, the physician, mental health professional, or health facility shall note the revocation in the patient’s records and bedside chart and shall notify the patient advocate. MCL 700.5510(d)

It seems the Michigan Supreme Court would have done us all a favor by taking the case and clarifying the law on this point. Now the issue of when that revocation occurs, and what the responsibilities of the various parties are, remains illusive.  All we have is an implication, based on an unreported case that arose in the context of a motion for summary disposition.

I wonder about how institutions may react, and whether there will be unintended consequences of the Supreme Court’s decision to take a pass.

For instance, what if I run a facility that cares for persons with cognitive impairments, and one of my residents has been deemed unable to make their own medical treatment decisions, and that resident has been admitted to my facility by their patient advocate, and then what if that resident says “I want to go home”? Is that expression alone a revocation of the patient advocate designation triggering the patient’s right to leave? Or does the person have to actually say the magic words “I revoke my patient advocate designation?” Is “I want to go home” enough to trigger the obligation of the staff person to report the incident as contemplated by statute? Enough to require a hearing so that a “court may make a determination on the patient’s intent to revoke the patient advocate designation.”

If I am the facility facing the possibility of a false imprisonment lawsuit (which is how the Roush case started), I might want to act out of an abundance of caution. I might want to make sure no family member later testifies in a lawsuit against me that: “My mother told the staff she wanted to go home, and they kept her against her will.  I heard her say it in front of the staff several times.”

So, do facilities start demanding guardianships over all their impaired residents again, rolling back twenty years of progress? Do plaintiff’s attorneys start looking for these cases? Maybe I am thinking too much, which I admit I can do sometimes. But with family dynamics the way they are, and with care facilities in a defensive posture, as they are, I’m not sure.

So, in any event, to my way of thinking, by deciding not to take this important case, the Michigan Supreme Court missed an opportunity to help clarify this confusing area, and provide some direction the both the families and facilities that are trying to care for our loved ones.

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