Best of 2017

We’ve hit a slow stretch.  Although there have been a slew of cases released by the Court of Appeals since Thanksgiving, none of them seemed blogworthy.  Or maybe it’s just me.  In any event, the year is closing out and accordingly I give you the most popular posts of 2017:

Number one was called “Bloody Thursday.”  This post summarized a three COA opinions all released simultaneously, all addressing Medicaid planning issues, and all holding in favor of the Department of Health and Human Services.

Number two was “MSC Takes Its Shot at Estate Recovery” which reviewed the Michigan Supreme Court’s holding in three combined cases dealing with Medicaid estate recovery, and also holding on the side of the Department of Health and Human Services.

Number three went to “Credit Union Joint Account Cases Messier Yet.”  A COA opinion explaining the burdens and presumptions in play with respect to surviving owners when joint accounts are created at credit unions.

Number four and five were a tie:  “Playing the Sanctions Game in Probate Court” and “Peter’s Principles and Our Evolving Understanding of Exploitation.”  The first is self-explanatory.  The second discusses the work of Dr. Peter Lichtenberg and his research on financial exploitation of vulnerable adults.

Finally, the winner in the touchy feely category for 2017 was “Resisting the Bucket List Mirage (aka More Naps Would be Good)“.

Thanks for reading.  Happy New Year.

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Writing is not about perfect

I write a lot and enjoy it. I have thoughts about the topic of writing, which, for what they’re worth, I offer here:

Writing is a habit.

I started writing at an early age, and spent a decade as a journalist before becoming a lawyer. I often think that if there was one thing I was given that I would love to have given to my daughters, it would be those ten years of sitting at a typewriter (yes, this was before desktop computers took over).  It was work then, but as I moved into the practice of law, I found that I missed that regular time at the keyboard.  So now writing is a habit for me and, like many habits, it is comforting to do it.

Writing is lonely

I have this idea about all undertakings, that the more you talk about it, the less likely it is to come to fruition. It’s like spoken words are the steam that once escaped from the engine, leave inadequate energy to make the grade.  In writing, more than anything else, I find that to be true.  If I talk about a topic I have on my mind, it becomes harder to write about it.  The ideas become fuzzy and my motivation to get it out dissipates. So, for me at least, I keep my ideas to myself until I can organize them and capture them on paper.  I don’t think I’m unique in that – but maybe.

With repetition comes your voice

I believe writing is difficult for people who have not done much of it because they haven’t developed their written voice. It took me many years of writing to get to the point where I could write quickly and clearly; and years more before I felt that I could write quickly, clearly and that the words could convey nuance and suggestion. Now writing is not effortless, but it is not difficult.  It is more like speaking.

Writing has weight

Growing up my Dad would say that people who write have more influence. He was not a writer.  I think he said it out of frustration.  Someone else’s ideas may not be any better than his, but because they had published their ideas somewhere, they just seemed smarter and more insightful.  For a long time I never thought much about his observation.  Now I get what he meant.  For whatever reason, people give more weight to written words than they do to spoken words.  Permanence perhaps.  Things said vanish.  Things written remain.

Writing is not about perfect

Every time I write something I rework it many times before I feel it is ready to go. But I know that if I looked at it again, I would change it again.  Yet there comes a point when the project needs to be done – and I need to be done with it.  It is never perfect, but maybe good enough.  I think people who are inhibited to write feel that what they write has to be perfect. Writing is not about perfect, it’s about done.

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Back from the UP, Reading Ford

I guess this post is about Michigan. It should be a Sunday post – but I’m on vacation so:

Like most native Michiganders, I love the U.P. and thanks to Susan Wideman and Paul Sturgul for allowing me to present to the Elder Law for Yoopers Program this past weekend.   There’s just something about crossing the bridge – maybe it is too much to compare it to Mecca, but certainly for Michiganders, it is good for the spirit to get up there once every few years.

My wife, Susan (pictured above on the Lake Superior shore), is reading to me – a fine biography of Henry Ford, which we continued while in Marquette. We’re almost done.

In my nearly sixty years, I have experienced much good and bad in our great State. I remember the riots.  I remember the invasion of Japanese cars.  I have witnessed the decline of the high quality of life that working class people once enjoyed here.  But what remains, what endures about our State, is no small thing.  How can you stand on the shores of Lake Superior and not feel a sense of pride and awe?

I accept that Michigan is a place of decline, at least as defined by political prominence and financial strength. I appreciate the Detroit comeback mantra – but have heard that mantra all my life – yet as I drive downtown I see that the houses along the Lodge remain burned out and abandoned. Perhaps that will change some day.  I hope so.

I think of the process in terms of Henry Ford. He was born here.  And because of that simple fact, Michigan became the center of the greatest industry of that age.  The age of transportation and consumerism were both triggered by his ingenuity – and he knew exactly what he was doing.  Amazing.  We have lived on his vision for 100 years, and now we survive on the last few trickles of his blood.  We are winding down.  I think that when Henry Ford was the most well-known person in America, and Detroit was the center of the new age, there were people in far flung places who looked on with envy – and people in far flung places who looked on with “meh – let them have it.”

We have had as a speaker at several probate institutes, Michael Giflix, a founding member of the NAELA (the National Association of Elder Law Attorneys) who remains a leading light in probate and elder law. He practices in Palo Alto, but he is a native Michigander.  It is always nice to see Michael enjoy Michigan when he comes to visit.  He talks about his office, down the street from the Google headquarters, and around the corner from Apple’s.  That is the center of the new age industry.  Steve Jobs and Bill Gates were born there.  A small part of me thinks it would be fun to be there in this time, but standing on the shores of Lake Superior my first instinct is reinforced: “meh – let them have it.”

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Resisting the Bucket List Mirage (aka More Naps Would be Good )

I talk to a lot of my clients, as well as professional colleagues, who are roughly in my age range (58). While some of them know exactly when they plan to retire (if they haven’t already), and what they plan to do; many of them are like me – unsure about whether retirement is a good idea.

We are living longer. And even if we can afford not to work for the next 30+ years, the real question is whether we will be happy if we walk away from the challenges that have engaged us for so long.  Will we be happy on the beach, on the golf course, traveling, watching television, watching the grandchildren, or volunteering in our communities?

Many feel pushed to make a decision; encouraged to “let it go.” The whole process can become stressful, filled with anxiety.  We hesitate.  And some of us simply resist.

We are confronted with the seemingly unimpeachable proposition that we must “do it now” before we’re too old and decrepit to enjoy the things “we really want to do.” Like what?  I ask.  Spend more time travelling and staying in hotels? Eating out more? Or is the plan simply to “be more involved” with your grandchildren?

I’ve had grandchildren (one of whom is pictured above) for 5+ years. Love ‘em to death – but here’s what I’ve learned:  They ain’t my kids, and raising them ain’t my business.  And I don’t want it to be.  I had my shot at parenting – gave myself a C or C-.  Maybe I could do better with a second chance – but no one is asking me to try – and in truth, I don’t have the energy or inclination.  Sure, there’s a role for grandparents – but it’s small one.

Retirement.  Bucket List.  It’s all a soul-sucking mirage.

OK.  I recognize my perspective on retirement isn’t shared by everyone – and the soul-sucking part may be overselling it.  But I’ve also come to realize that I am not alone.  Seems to me that there are a lot of people struggling with these same issues.  It’s a hard decision with big implications.  In any event, retired or not, I’ll tell you what would be good: more naps.

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Pins and Pictures

map w pins 3

I struck up a conversation with a woman sitting next to me on a bench in a courtroom in Mio Michigan this week. I asked her if she had any photographs of the stories she was telling me.

“Yes” she said “in my mind.”

Ah. The best kind.

From 1940 – 1954 her father was the sheriff of Oscoda County. In those few minutes while we waited for a hearing to start she shared some of those photographs with me.  A picture of her as a child pushing meals through a slot in the jail cell to the prisoners – meals that her mother, the cook and undersheriff, had prepared.  A picture of the hearse picking up people injured in car accidents because the county didn’t have an ambulance.  A picture of a boy weeping uncontrollably after shooting someone in a hunting accident.

I have often felt like photographs are both good and bad. They capture something of an event, but there is more that they don’t capture.  Photos are fixed.  Life is much richer and more dynamic. And often, when you are left with photographs from events, there is a corrupting inclination for the real memory to be absorbed by the fixed image.  I think that, for most things, it is better to have a memory than a photograph.  I suspect I am not alone in this belief. I think the woman I met in Mio shared my bias.

So I have pins, instead of photographs.

It was my first visit to the court in Mio – a big deal to me – it meant I got to put a new pin on my map for Oscoda County. The photo above is of my map. Yellow pins are the counties where I have been in court.  Blue pins are for our offices.  I have been in two counties in the UP, but the map doesn’t show those.

I have been a lawyer for 20+ years. I have managed a firm for most of those years.  I have driven more than 300,000 miles in two Buicks and a Ford, crisscrossing this spectacular State of ours. Michigan.  My home.  I’ve been in court in most of the counties in Michigan.  Not all of them.  Still some new courts to go to.  I’m not done yet – I hope.

But I think that when I am done – when all the cases and conflicts are washed away, when a thousand briefs and business decisions are forgotten, this is what I will hold onto – the pictures in my mind of the things I saw, and the pictures I saw and feelings I felt because they were shared with me from the memories of the people I met. Pins  – and photographs – the very best kind.

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Top Post Countdown for 2016

goodbye 2016

Because I knew you were curious, following are the plantobe100 posts that got the most views in 2016. To re-read these posts, just click on the name.

Honorable mention (sixth place) goes to the only touchy feely post to break the top ten. We Do Grow Young Again

Fifth Place was about the Court of Appeals case that looked at what happens when a person deemed incapable of making their own medical decisions revokes their patient advocate designation. Roush II: The Plot Thickens

Fourth place was about Michigan’s Medicaid Estate Recovery program. Estate Recovery Timing Clarified

Second place went to the recent post about Michigan’s domestic asset protection trust legislation. Lame Duck Legislature Lays Golden Egg – Big Time

The most frequently viewed post of the year, as well as the third most viewed post, both involved the new law allowing Michiganders to select a funeral representative. They were:  Long Sought Funeral Fix Awaits Signing, and MFDA Chimes in on Funeral Rep Law.

There were over 12,000 views on plantobe100 in 2016.

And Hey. If I don’t post anything more this year- happy holidays and THANKS for reading.

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Sunday Morning Story: The Office in Abilene

Amys chairs cropped

Last week we had an open house for our Southfield Office. Please stop by sometime.  We’re at 26211 Central Park Blvd., Suite 200.

And while you’re there, you might notice that Amy Tripp’s office has some unusual decorations, including the cowhide chairs pictured above, as well as a poster of the John Wayne movie Red River.  If you have nothing better to do with the next ten minutes, here’s the story on that:

For those of you who don’t know, in Red River, Tom Dunson (played by John Wayne) sets out to start a cattle ranch in Texas. He heads west with a wagon train, but when he senses that the time is right, he leaves the wagon train and goes out on his own (with one old farmhand and one bull).  He soon runs across a child who has one cow with him (Matthew Garth).  Dunson takes on Garth and his cow.

Fast forward twenty years and the herd is huge, but they are a thousand miles away from any market (railroad station) at which the cattle could be sold. Hence, a cattle drive that no one has ever attempted, across territories fraught with danger.

They start out toward Sedalia (Missouri) where they know they can sell the cattle, but along the way they hear of a train into Abilene (Kansas), which, if true, would mean that they could significantly reduce the drive and avoid many of the most dangerous territories. The question is whether they continue on to Sedalia or redirect the herd to Abilene.

The two strong-willed cattlemen, old Dunson and young Garth, disagree on the direction of the herd. Dunson says they continue to Sedalia.  Garth is persuaded that they should take a chance on Abilene.  Until now, Garth has deferred to Dunson to make all the decisions, but he holds his ground, and, supported by the other cattle hands, drives off Dunson and takes command of the herd.  They continue to Abilene where there is a train, and the herd is sold – but Dunson returns with a posse and engages in a brutal fight with Garth.  Before one of them gets killed, Dunson realizes the error of his ways, acknowledges his love for Garth and the wise decision Garth made in redirecting the herd. Everyone makes up – and it’s all good.

For Amy and me, the movie captures much of what we have gone through in building this firm – the brutal disagreements, the difficult challenges we’ve faced, but also the unwavering trust we have had in each other that has always pulled us through. When things have been especially rough, we have re-watched our favorite movie, to remind ourselves that, in the end, our relationship and all that we’ve worked so hard to accomplish are more important than any disagreements – which at that moment seemed so crucial.

Unlike the prior offices we’ve opened, in which I have been intimately involved, opening the Southfield office was primarily Amy (and Chris Smith). I was happy to remain outside the metro Detroit area – Amy realized the time had come to go there. So, now we have an office in Southfield – or as Amy and I like to say: an office in Abilene

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Estate Recovery Percolates in COA

In yet another unpublished Court of Appeals decision on the topic of estate recovery, the COA upholds a result previously announced in the Keyes case (discussed in prior posts). This case is one in a string of cases dealing with the timing that a Medicaid beneficiary received notice of the State’s estate recovery program, and the argument that the program as implemented violates constitutional due process rights – an argument that has been rejected by the appellate court.  To read the case, click here.

All is not lost for estate recovery zealots; the Michigan Supreme Court has signaled that it is willing to look at some issues related to the implementation of the estate recovery program. More on that later.

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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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