Because existing laws do not adequately protect such individuals against other persons (typically family members and lawyers) who would wrongfully exploit their diminished mental capacity so as to influence them into signing new wills or other legal documents, including codicils, deeds, and trusts.
Because existing law waits until someone challenges a document to decide whether the document was the product of incompetency, mistake, negligence, fraud, duress, undue influence, or other wrongdoing. When documents that are used to transfer an infirmed senior's property do not become known to the affected parties until after the infirmed senior has died, it is too late to investigate their complaints on the basis of the infirmed senior's direct testimony. Consequently, their complaints must be decided by presumption and circumstantial evidence, some of which is likely to be fraudulent.
Several reasonable measures have been proposed that would more adequately protect the estates of seniors in situations such as that recorded by the 3-minute video which ABC News presents online at http://abcnews.go.com/video/playerIndex?id=8486577. These proposals include:
* timely interviews guided by reasonable standards
* "conditionally" irrevocable trusts
* "self-proved" advance declarations
These proposals, which complement each other in a variety of ways, are discussed below. The first proposal, unlike the others, can be implemented so as to protect cognitively-impaired individuals without their doing anything to protect themselves ahead of time; this is explained further by documentation that is linked below. The third proposal is closest to what I originally proposed. An example that describes how this proposal could be implemented is linked below; this example has been described by others as both "user friendly" and "persuasive".
Such facts are recognized by numerous authorities. See, for example, the article "Wills, Testamentary Capacity and Undue Influence" on pages 15-22 of the Bulletin of the AAPL, Vol IX, No. 1 by Irwin Perr, MD, JD, the former president of the American Academy of Psychiatry and Law (AAPL).
Page 9 of the Ohio Physicians' Elder Abuse Prevention Project Report explicitly notes
* older adults are particularly vulnerable to this type of mistreatment, and
* financial exploitation should be considered if the patient has suddenly transferred assets to a family member
Several dozen medical and legal professionals collaborated on this project. Their report was jointly published by the Ohio State Medical Association (OSMA) and the Ohio Department of Human Services (DHS). It was endorsed by numerous other health organizations.
1ST PROPOSAL: TIMELY INTERVIEWS
This report also recommended specific standards for this interview protocol. For example, the report recommended that
* the interview should be structured so that the elderly patient and family members are interviewed separately;
* the interviewer's first contact should be with the elderly patient, not with the caregiver or other persons who could influence the patient and interviewer;
* the interviewer should use a standardized interview form or clinical checklist;
* the interview should be followed by screens for physical, psychological or financial abuse or neglect.
Click here to link to the applicable section of this report.
Click here to link to related documentation which was submitted in 2012 to the Consumer Financial Protection Bureau. This documentation includes a preliminary draft of legislation which would implement these recommendations in situations like that recorded by the 3-minute video which ABC News presents online at http://abcnews.go.com/video/playerIndex?id=8486577.
2ND PROPOSAL: "CONDITIONALLY" IRREVOCABLE TRUSTS
An irrevocable trust can stop estate fraud and is sometimes used this way. However, many persons consider it undesirable because it is irrevocable and so deprives its maker from changing its beneficiaries or the distribution of its assets.
A "conditionally" irrevocable trust would be more ideally suited to this purpose. It would remain revocable until the conditions specified by its maker are satisfied. It would then become irrevocable.
Revocable and irrevocable trusts are just two special cases of a "conditionally" irrevocable trust.
* A REVOCABLE trust is a "conditionally" irrevocable trust without any conditions
* An IRREVOCABLE trust is a "conditionally" irrevocable trust whose condition requires it to become irrevocable immediately upon execution.
If a "conditionally" irrevocable trust's condition is never satisfied, then the trust remains revocable right up to the maker's death, as is the case with a revocable trust.
Click here for examples of "conditionally" irrevocable trusts.
3RD PROPOSAL: "SELF-PROVED" ADVANCE DECLARATIONS
A WILL is also a declaration of its maker's intentions for the future disposition of his estate's assets.
Existing law provides a person who makes the will an opportunity to "SELF-PROVE" his will.
A person self-proves his will in order to definitively establish that his will is not the product of incompetency, fraud, duress, undue influence, or other wrongdoing.
A person who self-proves his will can later make a new will. If he does, his earlier will and the fact that he self-proved it become immaterial.
Self-proving a will does not stop estate fraud. It does not stop someone from making a new will as a result of fraud, undue influence, or other wrongdoing. Stopping estate fraud requires more than a self-proved will.
Wills sometimes include advance declarations that express a person's desires as to how he wants his will protected against the infirmities he reasonably expects he might experience later in life. Under existing law, such a declaration is unenforceable.
The purpose of self-proving an advance declaration would be to make it enforceable by satisfying the courts that the advance declaration is not the result of any infirmity, wrongdoing, mistake or misunderstanding.
Click here for an example of an advance direction.
The Ohio LSC prepared two memoranda concerning the proposal for establishing an advance declaration prior to the introduction of Ohio Senate Bill 117 by Senate Minority Leader Robert Boggs (D) in 1996. Neither memorandum addressed what has been since proposed: interviews, "conditionally" irrevocable trusts, and "self-proved" advance declarations.
During their 1996 campaigns to replace the retiring Boggs, both Senator Gardner (R) and his opponent Dan Troy (D) expressed support to a League of Women Voters audience. Following Senator Gardner's election, his caucus's attorney April Williams also endorsed this effort.
There followed in 1997 a meeting of several members of the Ohio State Bar Association which was arranged by Bill Weisenberg and chaired by Bob Dykes. Bill is the bar's Director of Governement Affairs, and Bob indicated that he expected to become the next chairperson of the bar's Trust and Probate Section. Although there was nearly unanimous agreement at that meeting concerning the problem, no agreement was reached concerning a solution.
The idea of a "conditionally" irrevocable trust can be attributed at least partly to Bob Dykes, who asked if I would support incorporating the advance declaration in a trust. I replied that I did not believe that a person should be required to express his advance declaration in a trust.
The idea of "self-proving" an advance declaration can be attributed at least partly to the Ohio LSC memorandum that raised the subject of "self-proved" wills. I objected to the implication that "self-proving" a will adequately addressed this problem.
The idea of a timely interivew was independently proposed by the Ohio Physician's Elder Abuse Prevention Project report. My own proposal for such interviews can be attributed at least partly to the bar's original objection that an advance declaration might be the only obstacle to someone making a will. The inconsistency of this objection with irrevocable trusts was first brought to my attention by Bob Dykes (supra). Until then, I advocated only that a person should have the right to choose in his advance declaration whether or not he wanted to retain the power to revoke his advance declaration under the operable conditions - so long as a proper interview demonstrated that he was competent and not being subjected to fraud, duress, or undue influence.
I think that it is clear from the preceding paragraphs that I have repeatedly incorporated the bar's suggestions and objections into my proposals. I will continue to do so in response to any written suggestions or objections. However, it has been several years since I last received any feedback from Ohio's legislature or its bar.
The last material objection I received came from Senator Gardner's office in 1998. It was in response to a suggestion by hospital personnel that legislators might seek the input of hospital risk managers. Senator Gardner indicated that he did not know the names and addresses of the risk managers. I suggested that he send a form letter addressing hospital risk managers by just their title. I also suggested that he ask the Ohio Hospital Association for a list of hospital addresses. A representative of that association replied to Senator Gardner's inquiry that this issue was none of a hospital's business. That objection had already been answered by the medical community in the Ohio Physicians' Elder Abuse Prevention Project report. Furthermore, it ignores the fact that the courts already rely upon the attending physician's opinion in disputes that arise over the decedent's condition.
The principal objection that I have heard from state representatives is that there is no support from other offices for such legislation. And that there is no support from groups like AARP. Such objections ignore the endorsements given the Ohio Physicians' Elder Abuse Prevention report, and the endorsement which these ideas have received from Bentley Lipscomb, Florida's former secretary of elder affairs, while he was director of AARP in that state, but there is no refuting the fact that most other legislators and most other AARP representatives have done nothing to address this problem. In fact, one of the most disturbing facts is that the people's representatives in the legislature and other organizations like AARP have not addressed this issue to their constituents.
Click here to view the endorsement by Bentley Lipscomb.
Click here for additional historical information, including the text of OSBA opinions, Ohio LSC memoranda, etc.
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