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The Feminization of the Law and the Death of Litigation

My neighbor teaches biology at Michigan State University.   Among other things, he teaches students who are earning their veterinarian degrees.  Once in conversation it came up that when he started teaching, 95% of his students in veterinary medicine were men, now 95% are women.  I said (stupidly): must be this is because more of the work has to do with smaller animals and didn’t require the physical demands of working with horses and cows.

He corrected me.  The work was the same.  Women, he explained, could handle large animals just as well as small ones. They just relied on skills other than brute strength to get the job done.

I realize that the same trend has been happening in the law for quite some time.  All lawyers used to be men.  [The women who should have been lawyers were doing the work as “legal secretaries” – getting paid like secretaries and being treated like the women in the TV series Mad Men.]

Now I suspect at least half of law school graduates are women, and most of the people being elected to the bench are women.  At the same time, the process of resolving disputes has changed dramatically – fewer trials, more mediation.

Litigation is different than mediation.  There is a piece to litigation: the pushing and shoving piece, the test of wills and skills piece, the winner or loser piece, that mediation lacks. To a large degree, litigation is a man’s world.  Not that some women aren’t very good at it – but that, at its core, it’s a manly endeavor – where the client hires a warrior to do battle for them and inflict pain on their adversaries.

Women are different than men as litigation is different than mediation.  Whether these differences are a function of biology or society – I don’t know.  [Although I will say, having raised three daughters, the mechanisms through which society continues to keep women in their place are alive and well – maybe not as overt as a generation ago – but alive and well nevertheless.]  That said, I am also inclined to believe that women are wired differently when it comes to dealing with conflicts. Without meaning to stereotype, what my neighbor said about female veterinarians could be said about female lawyers: they get the job done – but with less brute force.

Women make great lawyers, and their approach to the dispute resolution has changed the practice of law and will continue to change it.  Perhaps, as happened with veterinary medicine, the law will be dominated by women in the foreseeable future – or maybe men will continue to be part of the practice, but the process will become more feminized (should I say civilized?).  If, and as, that happens, I wonder whether the death of litigation, as we have known it, will be far behind.

Ne’er Do Wells

Maybe it’s just me, but it seems like the baby boomer generation is swarming with children who never quite broke through.

I come to this belief through my work with older clients (75 years-old+).  They talk to me about their estates, and how they want to dispose of their assets when they are gone.  We talk about their lives, their values, and their family members.  If I do my job well, they open up to me, and I learn about the children, where they are, and what they are doing.  I learn so much from these meetings, about life, about people.  It is far and away the best part of my job.

A common concern that comes up in these conversations are those children, 50 years-old+, who are wallowing in mid-level jobs, or long-term unemployed – lacking the financial wherewithal to take care of themselves as they enter their retirement years.  Many times the story begins with a recitation of how promising this person was in their youth, that, as a young person, they set their sights high, but never had the follow through to get where they wanted to go.  Now these adult children are embarrassed, angry, humbled by life, often divorced, often using drugs and alcohol, often relying on their parents for financial assistance just to get by.  You would be surprised, or maybe not, but I was, to learn how many adult men are smoking dope and playing video games all day.

It brings to mind something Hunter S. Thompson said in his famous work: Fear and Loathing in Las Vegas:

“We are all wired into a survival trip now. No more of the speed that fueled that 60’s. That was the fatal flaw in Tim Leary’s trip. He crashed around America selling “consciousness expansion” without ever giving a thought to the grim meat-hook realities that were lying in wait for all the people who took him seriously… All those pathetically eager acid freaks who thought they could buy Peace and Understanding for three bucks a hit. But their loss and failure is ours too. What Leary took down with him was the central illusion of a whole life-style that he helped create… a generation of permanent cripples, failed seekers, who never understood the essential old-mystic fallacy of the Acid Culture: the desperate assumption that somebody… or at least some force – is tending the light at the end of the tunnel.”

I imagine these 50+ year old children are the generation of cripples he was talking about.

They were all going to do great things.  They were all going to be important.  But for many of them, actually applying themselves, studying math, science, medicine, the law, was more than they were willing to do.  Many dropped out of college, or skated through with mediocre grades and earned degrees with limited marketability.

Part of this is the fault of their parents.  They gave them everything except an appreciation for the reality (which the parents had in spades) that nothing comes easy and that personal struggle is the source of life’s most valuable rewards. These adult children wanted to be important and influential, but they didn’t want to do the work to get there.  I understand: who wants their children to have to struggle? And especially in America back then, one could have believed that struggling wasn’t necessary any more.  Life was so easy.  The U.S. was the only game in town.  Everyone could make a good living.  Everyone could have two cars and a cottage up north.  Not any more.

All of that and they (the children) bought into the primary flaw of the 60’s thinking:  that achievement can be a group endeavor.  In the 60’s, a march on the nation’s capital could end an unjust war and defeat racism.  They came to believe that participation in the right social movements could serve as a replacement for personal effort and achievement.  And so, as adults, they buy into any and every social movement that sounds evenly remotely righteous, and they recite NPRisms believing, it seems, that by doing so they will somehow vanquish their demons, offset their failures, and magically return, even if momentarily, to the golden age of their youth when the world was right and they were on their way to something great.

It’s all  sad. Very sad really.

And so, I talk to my clients about their estates.  Although these parents would never use this phrase to describe their children, it seems to fit, and together we ponder what to do with these ne’er do wells.

Working on a Wire

My legal practice has become consumed with litigation. Litigation involving the resources of one (older) generation and the expectations and overreaching of the next (younger, but not young) generation. I have come to think of the work I do as being the work that arises as a result of the tension on a wire that is strung between and separates these two generations.

Over the past few years one part of my legal practice has exploded. Every day I find myself dealing with the issues that arise along the thin wire that separates our most senior generation from the generation just behind them.

At one side of the wire are what I would call the elders – 75 years or older. Typically, they worked all their lives, lived modestly, and have something to show for it. Their homes are paid off, and they have some savings.

Their children are what are commonly referred to as “baby boomers.” In many cases they have not planned for their futures, they are coming to the end of their working years, but have little to show for it, having spent most or all of whatever they earned. Many are burdened with debt, even as they enter their retirement years.

The elders fear that they will outlive their money, that their care costs will deplete their savings, or that the “government” will take what they have saved. They are vulnerable to, and targeted by, unscrupulous salesman and women who put on “free seminars” promising to share secret strategies for “protecting assets.”

The boomers meanwhile, or at least some significant portion of them, look at their parents’ resources as an answer to their financial challenges – one last shot at something to get them out of debt, provide for some future security, or at least extend the time until financial reality comes crashing down.

It all adds up to a tension, with elders confused and afraid about what to do with their resources, and boomers anticipating their parents’ demise and fearful that if their parents live too long, the money they expect to inherit may be lost on paying for their parents’ care.

Add to this the specter of the dementing illnesses that are epidemic among the elders and things get ugly fast.

Resources are being passed from one generation to the next under all sorts of unseemly circumstances. Children are grabbing resources that belong to parents. Children and bad actors of all sorts are pressuring parents to transfer property on the premise that doing so is somehow necessary to “protect” their estates or avoid some other vague undoing. Siblings turn their parents against other siblings in a frantic effort to secure a bigger piece of the dwindling pie.

Those “good” children, who want to protect their parents, face difficult choices. Should they drag their parents into court and take away their rights (and dignity) for their own protection? Sue their own siblings? How much will it cost? Will they win? And what will it do to their family relationships?

The tension on this wire is intense. The legal issues that it generates are difficult. Politicians pat themselves on the back as they pass new laws purportedly designed to cut down on the financial exploitation of vulnerable adult, which laws, although well-meaning, provide little promise to alter the current course of affairs. Meanwhile funding for adult protective services, the people who actually serve on the front lines of these battles, are being cut.

Houston….. we have a problem.

American Austerity

The boomers are aging in huge numbers.  The ratio between working-age tax payers and retirees is slanting rapidly toward the retirees. The government programs that provide care for the aged are already unsustainable.

The seemingly obvious result of this reality is that boomers can expect significantly less government support than the current generation of elders.  As boomers look at the institutions into which they place their 80+ years-old parents with distaste and, at times, disgust, I wonder what they think will be waiting for them.

Reality check: Today’s care options may well seem luxurious in comparison to what the boomers can expect in another decade or two.

What’s more, the elders of today were savers and have had some resources of their own to supplement what the government provides.  That is not the case for most boomers, who have lived beyond their means, and relied largely on credit to enjoy a lifestyle they never could afford.  Many have almost no savings, some are in debt.  In large part, boomers enter these fragile years relying almost exclusively on what the government will provide.

One might see an ironic twist in the situation: The typical 80+ year-old lived a modest life, took few vacations, eating out was a treat.  One might say they embraced austerity and were comfortable with it.

I recall my mother telling me about getting an orange in her Christmas stocking and thinking that was wonderful.   How quaint that seems, but how remarkable when we compare that to the world the boomers know.

Boomers travel the world, stay in luxurious resorts, eat out often, toss out leftovers, and lavish themselves and those around them with holiday gifts – gifts they often don’t need and never use.  Now they enter their fragile years with the prospect of having austerity forced upon them.

First Generation

When thinking about the law and aging, it is important to appreciate that we are the first generation to deal with this issue.

A generation ago people did not regularly live to be 90 or 100 years-old, and because cognitive impairments are so closely correlated to advanced age, the societal challenges created as a result of the dementing illnesses were not nearly so significant in the past. Yes, some people became old and “senile” but those instances were relatively rare and taken care of within families or institutional care settings.

As a result, we were not educated and have no role models to help us deal with being the children of aging parents who experience these conditions.

As an attorney practicing in this arena, I find myself facing adult children practically every day who have no idea where to begin. They don’t know the difference between a guardianship and a power of attorney, between Medicaid and Medicare, or between assisted living facilities and nursing homes.  What typically happens is an event that triggers the need to learn– the family gathers for Thanksgiving dinner and realizes just how bad Dad’s memory has become, or Mom has a fall and ends up in the hospital, then they find themselves sitting with a hospital discharge planner who tells them that Mom can’t go home. They come into the meeting with me with a “deer in the headlights” look.

Perhaps things will be different in the future.  Common sense would suggest that we begin talking to our children about aging in kindergarten.  But in this youth oriented society (topic for another day), that’s not likely to happen.  In the meantime, our generation is learning on a need to know basis.

Guardianship Law Change

There was a big change in guardianship law – or was there?

Public Act 173 took effect October 1, 2012 (and can be found on our website’s professional resources page).  It is a big bill, modifying 8 statutes.  It purports to be a major revision of guardianship and conservatorship law in Michigan, and while the bill clearly matters to those of us involved in these proceedings, the extent to which this law changes the dynamics of a guardianship proceeding won’t be known until the new forms come out.

I was a member of the State Court Administrator’s Office Probate Forms Committee for years. The work of this committee (which I understand has now been broken down into several work groups), is important although at times tedious beyond belief.  It is charged with taking the changes in the law and modifying the forms that are required to be used in court filings to reflect those changes.

This new law requires several things:

•  It puts more work on the guardian ad litem (the “GAL”) (the person appointed by the court to investigate the petition for guardianship and to provide a report to the court of its findings before the hearing).  The new law expands the information that the GAL is to provide the subject of the petition (the would-be ward).  In cases where there is not also a petition for conservatorship pending, the GAL is required to estimate the value of the ward’s estate so that the Court can decide if a conservatorship would be beneficial.

•  The guardian, if appointed, is obligated under the new law to tell the court is the assets in the estate of the ward are significantly more than what the GAL estimated.

•  Bonds are required in all conservatorships, without exception, where the liquid assets exceed the small estates ceiling, currently $21,000.

•  The powers of the guardian must be enumerated by court order.  That is, the court must decide which powers it grants to each guardian.

Take aways:

Conservatorships will become more difficult for families to handle themselves.  The bond requirement will be too expensive for many estates, and a good number of lay people seeking to serve as conservators will have something in their past that will preclude them from being bondable.  Some relief from this requirement might be achieved by using restricted accounts, and only requiring bonding as to those amounts that remain unrestricted.  It will be interesting to see if Courts are willing to dance this lightly around the new statute’s requirements.

The requirement that the Court must enumerate the powers of the guardian is the trickiest issue.  If attorneys preparing orders of guardianship are required to anticipate and justify every power that the guardian might exercise, they will be hard-pressed to do so without assistance from the forms committee – such as a box on the form that elects “all powers granted by law.”

In the end, this bill has the potential to increase the need for public guardians and conservators, a result which I suspect was not intended by the bill’s proponents.  The SCAO forms committee will have its work cut out for it as it decides how to deal with this law, so as to not create an unworkable process.  Good luck to them.

Capacity to Marry

Here’s an interesting published Court of Appeals decision that many probate practitioners may have missed, because it came out of a circuit court, but which has significant implications in the arena of financial exploitation of vulnerable adults.

In Estate of Ellen S. Mullin v Rene Marco Duenas, the Court of Appeals looked at an action of annulment of a death bed marriage, brought by the children of the decedent after the death their mother.  It provides a roadmap of how to handle these matters.

Plaintiffs in this action are the children of Ellen Mullin (acting as personal representatives of Ellen’s estate).  Ellen died of cancer, and in her death bed she wed defendant, Duenas.

Supporting the Plaintiff’s case is that Ellen was heavily medicated in her last days, and often confused and disoriented.  Fatal to their case was the fact that the doctors treating Ellen in those final days said that at a time nearly contemporaneous with the marriage, she was alert and oriented; and also that Ellen and Duenas had a long-standing intimate relationship and had lived together (on and off) for several years.

The Plaintiffs asserted two issues: lack of capacity and fraud.

The Court of Appeals found that the personal representatives had standing to challenge the validity of the marriage based on capacity, but that their burden of proof was “clear and positive proof that the marriage was not valid” – a burden they were unable to sustain.

The Court of Appeals found that, although fraud is a basis for an annulment, fraud can only be asserted while the party to the marriage is living.  Accordingly the personal representatives lacked standing.

In my practice I am finding annulment to be an increasingly important cause of action, as marriage becomes a more common tool of financial exploitation of vulnerable adults.  I think what we take away from this case is that these cases are difficult, especially if the married person our client represents is dead.  The burden of proof is high.  But we also can see that in the right situations, these cases have legs and should be considered.

Rebutting Presumption of Undue Influence

It’s over – at least for now.  The Mortimore case.

This is a case I have spoken and written about quite a bit for the past year.

Common facts: Older gentleman.  His wife of many years dies.  New woman becomes involved. Alienates family.  He dies.  She produces a will (surprise) leaving everything to her.

At the trial level, which I did not handle, a will contest takes place.  Trial court rules in favor of the woman (and against the kids).  Trial court says: I don’t know what to make of this, two very different stories. I am upholding the will.

I am retained to handle the appeal.  We raise the issue that the trial court failed to consider the presumption of undue influence that arises when a person (1) has a fiduciary/confidential relationship with the decedent, (2) the opportunity to influence the decedent, and (3) benefits from the document thereby created.

The Court of Appeals not only agrees, but reverses the decision of the trial court and throws out the will.  They say: had the trial court considered the presumption, they would have found the presumption applied, AND that the Appellee failed to rebut the presumption.  Nice Result!!

But, not the go down easy, woman hires counsel to request the Michigan Supreme Court review the Court of Appeals decision.  They agree the presumption applies, but they argue that the Court of Appeals failed to apply the proper standard for rebutting the presumption.

The Michigan Supreme Court accepts the case, briefs are filed, and oral arguments are held.  At the Supreme Court hearing, I am grilled by the Chief Justice who is clearly convinced that the Court of Appeals erred – specifically, that the standard that the Court of Appeals used to rebut the presumption (preponderance of evidence) is too high.  The thinking is that if the standard to rebut the presumption is a preponderance, the result, in effect, is that by establishing the presumption the burden of the entire cases is shifted to the party defending the document.

The truth is that Michigan Court of Appeals cases are all over the board on this.  The last pronouncement by the Michigan Supreme Court on this point was more than 30 years ago in Kar v Hogan, 399 Mich 529, 542; 251 NW2d 77 (1976).

The options are anywhere from a scintilla of evidence to a preponderance, with most cases coming down somewhere in between.

In light of my treatment at oral arguments, I was not hopeful about my prospects.  So, wasn’t I surprised when we received an order from the Michigan Supreme Court vacating the original order accepting the case.  In other words, they changed their minds and decided (after hearing oral arguments) that they never should have taken the case in the first place. That means they left the Court of Appeals decision in place.  Whew….

The Chief Justice wrote on lengthy dissent which offers one perspective on this issue.

The truth is that this is an important issue, and we don’t have clear law.  The problem is that if, as argued by the Chief Justice, the presumption of undue influence is given as much respect as are presumptions in other areas of the law (which is very little respect), the role of the presumption in protecting vulnerable adults will be diminished, and depending on the new standard adopted, perhaps dramatically so.
Request for reconsideration to the Michigan Supreme Court was denied, so, for now, the case is back in the trial court with the will thrown out.  There are other interesting issues in this case, which could lead us back into the appellate courts again, but the Supreme Court walked away from this opportunity to address is important and complicated issue.

Proposed Medicaid Policy Change Released

The State has issued proposed policy changes to the Medicaid program, which, if adopted, would be effective October 1, 2102.  To review the proposed policy click here:  Proposed Medicaid Policy.

In terms of advising elderly clients seeking long term care Medicaid benefits, the interesting provisions of this proposed policy are:

1)      Married couples are allowed one year to transfer assets from the nursing home resident (Medicaid applicant) spouse to the community spouse (the so-called “presumed asset eligible period”).  If the new policy is adopted, BEM 402, page 4, will provide that at the end of that year, the Medicaid caseworker is to review each asset that was owned by the couple on the “snapshot date” date and determine if any divestment has occurred during this first year.  Planners need to advise their clients to be mindful of this review, and for the community spouse not to make gifts during that first year.  I believe the reference to the snapshot date (the “IAA”) is in error, because the snapshot date could be many years before the application date.  I suspect they meant (and will likely apply) the application date.  If this new policy is adopted, it will be interesting to see how the policy is applied when, during that first year, the community spouse dies and leaves his/her assets to children or other beneficiaries through testamentary instruments.

2)      A proposed change to BEM 546, page 3, clarifies that a married person on the MIChoice Waiver program can divert income to support the community spouse without divestment concerns.

3)      A proposed change to BEM 401, page 8, further clarifies that transfers to a pooled accounts trust (Exception B Trust) by a person over the age of 65, is divestment.

Also released were some immediately effective policy changes, which include a reference to Medicare Set Aside Agreements, and specifically that they are neither assets nor income for Medicaid eligibility purposes.  It is interesting that the policy specifically references only the use of MSAs in worker’s compensation settlements.

Ladybird Deeds: Readers Digest Version for Upcoming Program

 

I am presenting on ladybird deeds at the upcoming State Bar Solo and Small Firm Institute, September 19-21.  Still time to sign up.  Following is an abbreviated version of what I will be covering.

Intro

A ladybird deed is an odd duck that serves as a valuable estate planning tool in limited situations, but which plays a much more important role in Medicaid post-eligibility planning.

Basically, a ladybird deed allows the owner(s) of real estate to designate a beneficiary on the property, with all the same characteristics as a beneficiary designation on a life insurance policy or bank account; including the power to encumber or sell the property without the consent or participation of the named beneficiary(ies).

A ladybird deed is sometimes referred to as an “enhanced life estate” deed.  Other states use ladybird deeds or some statutory variance of it sometimes called a “transfer on death” deed or affidavit.

I don’t know where the name came from.  The name is curious, to be sure.  Is it named after Ladybird Johnson or something else?

Source of Law

We recognize ladybird deeds in Michigan primarily because Michigan Land Title Standard 9.3 says this arrangement is valid under Michigan law.

The Land Title Standard is thin on detail, and there some important questions about these deeds remain unclear.  Most notably, the question of grantee vesting is not addressed by the land title standard.

A recent unpublished Michigan Court of Appeals case addressed the best way to subsequently convey land subject to a prior ladybird deed.

In Estate Planning

Ladybird deeds can serve as simple tools in simple estates with simple schemes to provide clients with a clean result.

In Medicaid Planning

Although ladybird deeds have been used by some planners for decades, the explosion of their use is clearly a function of the role they play in post-eligibility Medicaid planning.

After a client (or the spouse of a client) becomes eligible for Medicaid, where there is an exempt homestead, a ladybird deed can be used to avoid probate and therefore the specter of estate recovery (Because estate recovery currently only reaches probate assets).

Further, and of equal importance, because the ladybird deed does not convey anything of value (it is merely a beneficiary designation) the execution of a ladybird deed is not divestment.  Accordingly, the ladybird deed can be created before or after the Medicaid application is filed, and it does not matter that it is done during the look-back period.

Clearly the ability of people to avoid estate recovery simply by executing ladybird deeds is a thorn in the side of those who expect the estate recovery program to generate revenues.  Accordingly, planners must be realistic about the future of this planning tool, and need to advise their clients about the prospects that the law may change in the future.

Legislation currently pending would eliminate the probate only aspect of Michigan’s estate recovery program, and therefore eliminate the benefit of ladybird deeds in Medicaid planning.  But even if this law is not passed, it would not be surprising for the Department of Human Services to implement policy that seeks to reach property passed by ladybird deed.

Creditor Rights

A Michigan probate court opinion out of Wayne County, written by a highly respected Probate Judge, the Hon. Milton Mack, and which is published in the Quinnipiac Probate Journal holds that an unsecured creditor of the state cannot reach the value of property that passed by operation of a ladybird deed, and further, that the execution of a ladybird deed is not subject to the Fraudulent Conveyance Act.  This author knows of know contrary authority.