Tuesday, December 7, 2010

How to challenge a will - testamentary capcity.

In my earlier post I wrote about how a will can be challenged if it was not properly signed an witnessed. In this post I will talk about challenging a will because the person writing it did not have the metal capacity to make a will.

In order for a will to be valid, the person writing it must have what is called “testamentary capacity.” That means the person must be able do four things. Those things are:

  • Know the “natural objects of his or her bounty,” In practice this means the person writing the will must be able to name his or her her children without prompting.
  • Know the nature and extent of his or her property. This means the person must be able to describe in general terms what he or she owns.
  • Understand that the person is signing a will.
  • And know what the will accomplishes. The person must know who will get his or her money under the terms of the will and who has been cut out.

The standard for legal capacity doesn’t require much of a person. The only lower standard in law is that necessary to get married. There are two common reasons why an elder might not be able to do the four things described above. The first is delirium. The second is dementia.

Delirium is a loss of cognitive ability due to an illness or as a side effect of drugs. Most elders who have a serious enough medical condition to put them in the hospital will be suffering from delirium. If they get better and off the drugs they are receiving, the delirium will go away, but while in the hospital they will seldom have the cognitive skills necessary to devise, read and understand a will.

The law recognizes “lucid intervals.” A lucid interval is a period of time in which a person who generally does not have testamentary capacity comes out of it long enough to write a will. Not surprisingly, when the family and lawyer show up at the hospital to present Aunt Nell with new will, they find her in the midst of a lucid interval and ready to do a new will. Geriatric psychiatrists think this is a bunch of crap. If the person doesn’t have the capacity to get out of the hospital bed and get down to the lawyer’s office, there is a good chance he or she doesn’t have the capacity to understand a will.

Elders can also suffer from dementia. Dementia is a general term for loss of cognitive ability. It can be caused by Alzheimer's disease, small strokes, alcoholism, or other medical conditions. Unlike delirium, dementia does not get better.

Dementia can be hard to spot. One of the reasons for this is that a person’s conversational and social skills are often the very last skills to go. An elder may be able to have a very pleasant conversation with you, yet be completely unable to make the kinds of judgments necessary to manage money or devise an estate plan. In the past, mental health professionals used the mini-mental state exam to measure cognitive loss in dementia sufferers. That exam has gone out of style and most mental health practitioners currently use the SLUMS. The SLUMS is a test that relies less on memory and orientation and focuses more on the kind of decisions used in analysis and decision making. Neither of these tests can tell you whether a person can do the four things necessary to write a will, but they do give a quick summary of a person’s reasoning skills.

If a will is admitted to probate, it can be challenged on the grounds that the person who signed it did not have testamentary capacity. By this time, however, the person who wrote the will is dead. The evidence of capacity will have to be obtained from witnesses and medical records. If the will was written by a lawyer and signed in the lawyer’s office, the person challenging the will have a tough time of it. The lawyer will testify that the person appeared to have capacity, or the lawyer wouldn’t have written the will. 

On the other hand, the presumption about lawyer-written wills is not as strong as it used to be. If there is strong medical evidence that the person who wrote the will could not have had testamentary capacity, the case for overturning the will may be a good one even if a lawyer was involved. Challenging wills is a complicated legal job. You need a lawyer, and preferably someone who has done it before.

Not a lot of wills are challenged on the grounds that the person who signed it did not have capacity. Most people who want to challenge a will look to what is called “undue influence.” That will be the subject of my next post.


Tuesday, November 2, 2010

How to Contest a Will - Part 1

I get a lot of questions about contesting wills. Some people want to know if they can challenge a will made by a relative. Some people want to know if a relative will be able to challenge the their will. In practice, wills are hard to challenge. A will is meant to express the wishes of the person who signed it, and probate judges are dedicated to seeing those wishes carried out.

There are three ways to challenge a will: (1) it was not signed and witnessed as required by law, (2) it has been revoked, and (3) it did not, in reality, express the wishes of the person who signed it.

In this post I will talk about proper signing and revocation. In the next post I will discuss how to challenge a will because it does not express the wishes of the person making it.

Was the will signed and witnessed correctly?

Wills must be signed by the person making the will and the signature must be witnessed by two people. The two witnesses must sign a document stating that they witnessed the signature of the person who made the will. The witnesses must sign that document before the person who made the will dies. The witnesses don't have to sign at the same time as the person making the will, but if they wait until after death it is too late. Lawyers bring witnesses into the will signing and have everybody sign at the same time. They never screw that part up. Non-lawyers who write their own wills or get wills off the Internet often fail to have the will properly witnessed. That makes the will scrap paper.

(Lawyer usually attach to a will something called a "self-proving affidavit." That is a document that makes the will easier to get admitted to probate, but it is not required to make the will valid.)

There are no exceptions to the rule about witnesses. You can't get around it by doing a handwritten will. In addition, changes to a will -- called codicils -- must also be witnessed. That means you can't make additions and deletions on your will unless each change is also witnessed. If you are going to make changes, you should probably just make a new will.

If a will is not signed and witnessed, it is invalid. It is invalid even if you can prove that the will accurately expresses the wishes of the person who wrote it. If the will is invalid, the person who wrote the will is considered to have died without a will. I have written previously about what happens when you die without a will. You might want to look at that post.

Has the will been revoked?

Most wills begin with the line, "This is my last will and I revoke all prior wills made by me." A will is normally revoked by a subsequent will. A will may also be revoked by being burned, torn, canceled, obliterated or destroyed by the person who made it. If a person dies and his will can't be found there is a presumption that it was destroyed.

A will is revoked by a subsequent marriage if the new spouse outlives the person who made the will. If you have a will and get married, you should write a new one.

If you receive a notice from the court that the will of a relative has been admitted to probate, and you believe that it was not signed correctly, or that it had been revoked, you can challenge the will by filing your challenge with the court. This is not a job for amateurs. You will need to retain a probate lawyer to evaluate the challenge and prepare the court filing for you.

Next Post: Challenging a will for lack of capacity or undue influence.

Saturday, October 23, 2010

Probate Mediation in Multnomah County

I am now an approved Probate Mediator for Multnomah County probate disputes. I started the process well over a year ago when I took the two-day probate mediation course sponsored by the Multnomah County Probate Department. That summer I took the  basic mediation training from Stan Sitnik, professor in the dispute resolution department of Portland State University. Over the past few months I got practical experience in the Multnomah Small Claims Mediation program where experienced mediators held my hand and did what they could to impart to me the lessons they had learned over the years. The process has opened my eyes to new ways to looking at dispute resolution and made me reevaluate my own approach to negotiation and settlement.

I often refer to my probate practice as family law at the other end of life. In traditional family law parents fight over the custody of the kids. In my probate practice the kids fight over the custody of their parents. Emotions run high in my cases. Sometimes the cases are driven by a real legal dispute. In others, however, the law is clear, and the case is driven by sibling rivalries and family resentments that have festered for years. Litigation offers a solution--albeit one imposed on the family by a person in black robes. Mediation offers healing.

I recently spent a morning in a mediation in which six siblings faced the problem of how to care for an aging father. They brought with them decades of hurt feelings, suspicion, and festering resentments. I watched as a skilled mediator helped the group find a solution that worked for all of them and actually brought them together. It was not what a court would have ordered. It was a solution designed by the people who would have to live with it. My bet is that it will work better than any solution a court would have or could have fashioned.

Some lawyers are embracing mediation. Some are looking for any way possible to avoid it. The bulk of them, however, are supportive but confused. The procedures are new and kinks have to be worked out. We know that disputes in guardianships, conservatorships, and probates must go to mediation before they will be heard by the court. The confusion centers around when mediation notices must go out, what the notices must contain, how to choose the mediator, and how to schedule the mediation. These are not insurmountable issues but we lawyers--having gone to so much college to get to where we are--dislike learning new stuff. We will get over it and in five years mediation will be as accepted in probate as it now is in family law.

So here is mediation in a nutshell. If your lawyer files a paper that creates a dispute-- usually an objection to something another lawyer filed--then the dispute must go to mediation. The party who created the dispute must provide the other side with the names of acceptable mediators. The other side can object to mediation, accept one of the proposed mediators, or propose its own list of acceptable mediators. If the parties cannot agree on a mediator, the court will appoint one. The parties can pick any person they want (with some exceptions), but the court must pick from the list of court-approved mediators. I am on that list.

Once a mediator is selected the parties must mediate for at least three hours. If an agreement is reached  the mediator will write it up. The parties then have seven days to repudiate the agreement. If no one repudiates, the agreement is rewritten as a judgment by the lawyers and presented to the court. If the parties do not reach agreement, or if one of them repudiates the agreement, the case goes to court.

My take on it is that if your lawyer says you have been ordered to mediation, celebrate. You have a chance to do something good. Good things do come from the court; just not as often.

Thursday, October 21, 2010

Elder Financial Abuse in Oregon -- Part 2

In my previous post I explained elder financial abuse and your obligation, at some point, to say no to the elder who wants to give you money and property. After the explanation you asked, “But why would an elder who loved me enough to give me money then turn around and sue me for financial elder abuse?”

The answer is that the parent doesn't sue. The parent becomes disabled with dementia and the parent's conservator or trustee sues. The conservator might sue because the gifts have made the elder unable to pay for long term care or unable to qualify for Medicaid. The conservator might also sue to get the money back so it can go to the elder's heirs when he or she dies. Lets say a grandchild talks demented grandma into giving her a whole bunch of money. The children of grandma get a conservator appointed to handle grandma's financial affairs. The conservator then sues the grandchild to get the money back so that it can go to the children according to the will when she dies.

After an elder has died, the representative of the estate may sue for elder financial abuse those people who received money from the elder while she was still alive. In these cases, the object is to squeeze money from one heir and give it to another. The child who received money is forced to give up her inheritance to get rid of the elder financial abuse case. Disgruntled heirs like this idea and lawyers can make a lot of money doing it.

Let's say your elderly mom gets most of her legal advice from her hairdresser. Let's say further that you are on her bank account so you can help with her bills and she has named you her power of attorney. She comes home from the beauty parlor one day and tells you she will lose all her property to taxes and probate unless she puts your name on the deed to her house right away. She says she wants you to have her house when she dies, tells you to get a deed written, and says not to tell your brothers about it. Ignoring my advice from my last post about accepting gifts from elders, you do what she says.

Mom then dies without a will. The money in the checking goes to you because your name is on the account. The house goes to you because your name is on the deed. And your brothers are furious.

The brothers could challenge the deed to you claiming that you had a confidential relationship with your mother and “unduly influenced” her to give the house to you. This case would be somewhat like challenging a will. A lawyer might, however, try a different strategy. He gets one of your brothers appointed personal representative of your  mother's estate and then sues you for elder financial abuse. By claiming elder financial abuse the brother can seek triple damages and attorney fees. In addition, he has the inflammatory claim that you abused your mother. Rather than looking like greedy heirs, the brothers look like knights on white horses coming to the rescue of your poor abused mother.

Cases like the one described above come in all sizes and shapes, but they share one characteristic. In each of them the elder financial abuse claim serves the interest of heirs (or those who take pursuant to a will or trust) who are dissatisfied with their share of the elder's estate. What once would have arisen in a will contest or a suit to set aside a deed is brought to court as elder financial abuse.

There are elder abuse cases in which someone is truly trying to get back from bad people money that those people took from a helpless elder. These cases are not as common as you think because these kinds of bad people are criminals and are not worth suing. They spent all the money on drugs and couldn't pay it back if they wanted to (which they don't). Many elder abuse cases, however, are not like that. They are will contests in disguise, serving the interests of people trying to maximize their inheritance.

Sunday, October 17, 2010

Elder Financial Abuse in Oregon and the Obligation to Say No

Hitting up one's relatives for money is a time honored survival skill in every culture. Most people give up the practice when they reach middle age, but all of us have certain family members who simply can't wean themselves from the parental checking account. In the past we just felt sorry for these family members and let them go about their business. In today's world, with severe legal penalties for elder financial abuse, the ancient practice of finagling money out of elderly relatives can put a person on the wrong end of a very ugly lawsuit.

Here is how it works.

Elder financial abuse means wrongfully taking money or property from a person who is disabled or over sixty-five years old. That covers a lot of people. We can't  even retire at sixty-five any more, but we are nevertheless protected by Oregon's elder financial abuse law.

To be elder financial abuse the taking must be “wrongful." So what makes it wrongful? Stealing is wrongful. Embezzlement, extortion, and armed robbery are wrongful. Withholding money that belongs to the elder is wrongful. But those kinds of wrongful taking are not so common, and when they occur we normally call the police. Where the lawyers come swooping in is when money is taken from an elder using what the law calls “undue influence.”

“Undue influence” is a  complicated concept that has been imported into the law of elder financial abuse from the world of will contests. In Oregon, a will can be set aside if it was the result of undue influence. Since the passage of Oregon's elder financial abuse law, courts have decided that undue influence is also a good concept for deciding whether taking money from and elder was wrongful.  Those court decisions have broadened the protection of elders, made it dangerous to accept gifts from elderly relatives, and given new legal weapons to children dissatisfied with their parent's estate plan.

You take money by use of “undue influence” if you have a “confidential relationship” with an elder and thereafter use that relationship to get money transferred to yourself. A confidential relationship is a slippery legal concept. You might have a confidential relationship because the elder wants you to be on his or her bank account, wants you to be an agent on a power or attorney, or simply takes your advice on financial matters. If you have a confidential relationship with an elder and the elder wants to give you money or property (without having received independent and professional legal or financial advice) you may have a legal obligation to say no. If you fail to say no, you can get sued for three times the amount you received and required to pay the attorney fees incurred in suing you. If you are close to an elder relative and have some influence over his or her financial decisions, taking gifts of money from that person can be risky.

How do you protect yourself? Easy, don't accept gifts from elderly relatives or other disabled people unless the gift is wrapped in Christmas wrap and fits beneath a tree. If the gift doesn't fit that description send the elder to an Oregon elder law lawyer who has never been your lawyer. Then let the lawyer do the work. If you elderly mother thinks you should be on the deed to her house, or really wants you to have a new Mercedes, send her to a lawyer. Failure to do so could end up with you being sued.

You think, “But why would a loving parent who gave a lot of money to their kid, then sue to get it back?” The answer is that the parent doesn't sue. Somebody does it in his or her place. To see how that happens and why lawyers love to do it, check out my next post.

Wednesday, October 13, 2010

The Oregon Department of Veterans Affairs, the Public Guardian and Seniors and People with Disabilities.

This is part of a series of posts describing the cast of characters that might play a role in your guardianship or conservatorship proceeding. I have talked about lawyers, professional fiduciaries, the courts, the U.S. Department of Veterans Affair, and Social Security. In this post I want to talk about three agencies. I combine the three because in practice the agencies to not show up often in guardianship and conservatorship proceedings, but when they do they play and important role.

The Oregon Department of Veterans Affairs.

The Oregon Department of Veterans Affairs (ODVA) is a state agency that provides a low cost alternative to a professional fiduciary for Oregon veterans.  Under the right circumstances the ODVA will serve as a conservator for Oregon veterans. The ODVA is not associated with the U.S. Department of Veteran's Affairs, but the ODVA and the USDVA tend to get along fairly well. Because of this amicable relationship the USDVA is often willing to appoint the ODVA as representative payee for federal veterans disability payments. If a disabled veteran has money being paid to him by the USDVA and also has income subject to state court supervision, one way to put all the assets into the hands of the same fiduciary may be to ask the ODVA to handle both sets of funds.

The ODVA takes cases based upon its funding and criteria set within the agency. It won't take every case it is offered. However, if your disabled elder is receiving disability income from the USDVA, you should always check to see whether the ODVA would be a good choice as a fiduciary. The services provided by the ODVA are as good as any private fiduciary in the state and cost far less. If your disabled Oregon veteran is not receiving federal benefits, but there is no appropriate family member or the case presents particular problems, the ODVA may still be the solution you need.

Being a state agency, the ODVA is subject to the budget fluctuations of state government. It's ability to take on further cases at any one time may depend on politics and the current budget.

The Public Guardian

Multnomah County has a public guardian. The public guardian serves as a fiduciary for a certain number of elder and disabled when there is little money and no appropriate family member. The ODVA serves veterans. The public guardian serves those who are profoundly mentally incapacitated, unable to care for themselves, and currently at high risk due to abuse, exploitation or extreme self-neglect. The public guardian has its own criteria for which cases it will accept, and like the ODVA is subject to budget constraints.

Seniors and People With Disabilities (SPD)

Seniors and People with Disabilities (SPD) is an arm of the Oregon Department of Human Services. SPD takes reports of elder abuse or of elders in dangerous living conditions. It investigates abuse and neglect. It reports severe cases of elder abuse to law enforcement for prosecution. Prosecuting criminals, however, only benefits disabled elders in the deterrence effect prosecution has on other would-be criminals. SPD does not normally initiate guardianship or conservatorship proceedings, does not obtain restraining orders to stop further elder abuse, and does not pursue civil remedies against those who have taken advantage of the disabled or elderly. Recent changes in the law have made it easier for DHS to instigate guardianships or conservatorships, but it is still rare for the agency to do so.

Most care and protection of the elderly is done in the private and charitable sector of our communities. Churches provide far more support for and monitoring of the elderly than does government. Long term care centers are privately run. The elder law bar is made up of private practice attorneys. SPD does not work effectively with any of these private sector communities.

Although SPD is a player in the elder law world, it is seldom effective except in the most severe cases. Next time you suspect elder abuse, spend an hour or so trying to find the correct number and then call it in. You will see what I mean. In the average guardianship or conservatorship, SPD is nowhere to be seen.

Saturday, September 18, 2010

Guide to Players: Social Security

This is the third post on the role of government agencies in guardianships and conservatorships. The first was about the Oregon court system. The second was about the U.S. Department of Veterans Affairs. This one is about Social Security.

Social Security provides retirement income for nearly all Americans over the age of sixty-five and provides disability income for millions of disabled people no matter what their age. Thus, Social Security provides at least some income to most elders or disabled persons who become subject to a guardianship or conservatorship.

When an elder or disabled person cannot manage his or her money, Social Security uses a “representative payee” system that allows a responsible relative or a professional to receive and spend Social Security income for the disabled person. A relative applies to Social Security to be appointed “rep payee” for a disabled person, and if the facts support the need for a fiduciary, Social Security will send the money to the representative. The paperwork is minimal and the annual accounting requirements are fairly simple.

While the U.S Department of Veterans Affairs does not play well with the state court system, the Social Security Administration does. If a state court appoints a conservator to handle of the money of a disabled person, Social Security will generally honor the state court decision and, upon application, make the conservator the representative payee of social security benefits. The U. S. Department of Veteran's, as I noted in my last post, is seldom so cooperative.

You need to keep these relationships in mind when you are determining what kind of fiduciary your disabled elder needs. We know that a guardian makes medical and placement decisions, while a conservator takes control of money. If the elder's money all comes from the federal sources--Social Security or veterans disability--there is probably no need for a conservatorship. The existing federal systems already provide the mechanisms to protect the money. If you establish a conservatorship to handle non-federal assets, Social Security will honor the conservatorship by naming the conservator as rep payee for Social Security income. This puts all the money in one set of hands. The veterans administration, on the other hand, will probably not cooperate in this way and may ignore the state court proceeding.

The rule is that you do not need a conservatorship if the only income of the disabled person is federal money—whether that be social security, veteran's disability, or both. If the elder has assets other than from federal money--let's say a big investment account and some real estate—then a conservatorship may be necessary to manage those assets. Once the conservatorship is established the conservator can take charge of the Social Security money, but will not get control of veterans benefits (without making his or her case directly to the U.S. Department of Veteran's Affairs).

Conservatorships are expensive and messy. Before you wander down that path be sure what assets you want to conserve and whether the protection offered by a conservatorship is worth the cost of the legal proceedings. When making the calculation, don't include federal money—Social Security and veteran's benefits—because that income is conserved through the federal system. Once you have removed the federal component take a look at the costs of the state court proceeding. If the cost of the conservatorship exceeds ten percent of the the amount of money to be protected, look for another way.

More on other ways later.

Wednesday, August 25, 2010

Guide to Players: The U.S. Department of Veterans Affairs

I just wrote about the role of the Oregon courts in guardianships and conservatorships. I now want to write about a government agency that is completely and utterly indifferent to anything that happens in state court. It is the U.S. Department of Veterans Affairs.

The U.S. Department of Veterans affairs—the USDVA—is a  federal agency that provides medical care and a lot of other benefits for veterans. Some veterans receive disability payments due to service-related disabilities and are incapable of handling the money on their own. For these veterans the USDVA has a payee system under which it nominates a family member or a professional fiduciary to hold and administer the disability money for the veteran.

Some times the professional fiduciary selected by the USDVA will not need all of the veteran's disability money for his needs and the funds will start to accumulate in the account controlled by the fiduciary. The USDVA might then ask the fiduciary go to state court to establish a conservatorship. In other cases, family members go to state court asking for a guardianship or a conservatorship because the veteran has other funds that need to be protected, and they want the USDVA disability benefits controlled by the same conservator. In both of these situations the Oregon State court system and the USDVA collide. The results are seldom pretty.

In an earlier post I mentioned the state court judge who considers her court the last line of protection for elders and the disabled. Well the USDVA has a different view about how much protection state courts offer. To the USDVA the state court system is one in which over-paid professional fiduciaries and lawyers empty the coffers of the disabled without providing much of anything in return. Those closely aligned with the state courts don't think much of the USDVA system either. Fiduciaries used to working in the state court system think the USDVA fiduciaries are under-trained, inexperienced, and overworked. Professional fiduciaries who are well respected in the state court system may be despised by the USDVA, and fiduciaries who are believed  to walk on water by the USDVA may be looked upon as common criminals in the state court system. The key for you is to recognize the dispute without getting involved in it.

The important thing to remember is that the USDVA is allowed under federal law to ignore anything and everything that state courts do. You cannot subpoena USDVA records or personnel. State court orders can be completely ignored by the USDVA and routinely are. Therefore, if the bulk of the money going to a disabled person is USDVA money, you and your lawyer cannot go to state court to get control of it.  


I repeatedly see family members and their lawyers going into state court saying that they want honest old Uncle Henry to be conservator for disabled cousin Darrell so that Henry can control and administer the money coming every month from the USDVA. It ain't going to happen. The USDVA will decide who is in charge of that money, including accumulations of it in bank accounts, and there is nothing your local judge can do about it.

Not only will the USDVA not allow state courts to interfere with the administration of veteran's disability payments, it seldom allows its employees to appear in state court proceedings at all. Thus, if your proof that grandpa has Alzheimer's depends upon testimony from his medical providers at the USDVA hospital, you may lose your case. The only way I have gotten USDVA providers into court has been by begging and pleading with the USDVA lawyers, and when they finally agreed, the witnesses were accompanied by a USDVA lawyer to make sure he or she didn't say anything that wasn't in the agreement I made with them. That was a couple years ago, and rumor has it that since then the USDVA has become even more reticent about allowing its employees into state court.

So here are the guidelines

  1. Don't get involved in the friction that exists between the state court system and the USDVA
  2. If there is a conflict between a state court and the USDVA, the feds win—every time.
  3. Don't expect to ever win a case in state court using evidence provided by the USDVA.
  4. Money that comes from the USDVA stays in its control forever and there is nothing you can do about it.
After I explain all this to clients they ask, “I hate the person appointed by the USDVA to handle my father's disability money. What can I do?” The answer is political. Complain a lot and write your congressman. As an Oregon elder law lawyer who hangs around state courts, there is nothing I can do for you.  

Sunday, August 22, 2010

Guide to Players: The court, the judge and the staff

I have written a post of about the kinds of lawyers who practice elder law. I have written a post about the number of lawyers who might become involved in an Oregon guardianship or conservatorship. I have discussed the visitors, professional fiduciaries and other professionals who may show up in a case. It is time to talk about the government agencies.

Government has its hands all over these kinds of proceedings and each arm of the government has a different personality. The important ones are (1) the state courts, (2) the Social Security Administration, (3) the United States Department of Veteran's Affairs, and (4) the Oregon Department of Veterans Affairs. Each of these arms of government has different goals, different procedures, and different attitudes toward disabled elders. We will begin with the court system.


In any Oregon county, guardianships and conservatorships are handled in the probate department of the circuit court. In the larger counties there is one judge assigned to head the probate department. That judge may do all probate matters, or administer the probate department with the help of other judges.

The judges preside over hearings in contested cases. They make rulings on motions and sign the orders that establish a guardianship or conservatorship. It is the judge’s job to make sure the law is followed, and that every person gets a full and fair chance to be heard. There is one local Oregon judge who is fond of stating that she is the last line of protection for the aged and the disabled.

Oregon judges do a good job. Because probate judges somewhat limit their caseload to probate cases, they know the law well and, as far as I can tell, administer justice as well as fallible humans can do. Nobody is perfect and no judge I know claims to be an exception. My experience is, however, that Oregon judges are intelligent, hard working, always prepared, respectful of the litigants, and fair.

Court Staff

If one were to look through probate files at an Oregon courthouse, you might see hundreds of approvals, orders, and other documents which appear to have been examined and approved by a judge, but in fact were not. The courts see the same kind of documents so many times, that the probate staff is often charged with examining the documents, determining their compliance with law, and either approving them directly or recommending that a judge approve them. A probate staff member may either have a stamp with the judge's signature and be authorized to use it, or may bring the matter to the judge with a recommendation—at which point the judge signs off on the matter without really looking at it.

Judges work hard to treat lawyers and litigants with equal respect and courtesy. The probate staff is more willing to play favorites. Lawyers who hang around the probate court a lot and get friendly with the staff have an easier time getting documents signed than those who don't. Lawyers who have dealt honestly and straightforwardly with the court for years will have their requests granted with barely a glance, while those who have been disingenuous with the court, or rude to the court staff, will have a hard time of it.

(If you are considering hiring an Oregon elder law lawyer, ask the potential lawyer the name of the probate coordinator in the county where you are going to file. If he or she doesn't know, move on to somebody who does.)

I had an assistant once who asked me, “is probate law the same in every state?” I answered that probate law has been pretty much the same since Roman days, but we don't get paid the big bucks because we know probate law. We get the big buck because we know the probate coordinators in all the surrounding counties. People are local. So is justice.

There is no trick to dealing with judges and the probate staff. Be honest and forthcoming with the judge. Be courteous and helpful to the court staff. If you can do both those things there should be nothing you need worry about in dealing with a court.

Sunday, July 25, 2010

Guide to the Players: Professional Guardians and Conservators

There is a Bill Cosby skit in which Bill observes that parents faced with bickering children to not want justice--they want quiet. Judges often have a similar attitude when it comes to families battling over who should be appointed guardian or conservator for an aging family member. The judge doesn’t want to hear about all the dirty laundry and figures that if the family cannot agree, everybody will be better off with a neutral party. That neutral party is almost always a professional. Elder law lawyers refer to guardians and conservators as “fiduciaries.” Some fiduciaries are family members. The ones I am talking about today are professional fiduciaries. They do it for a living and they charge for their services.

Where do Professional Fiduciaries Come From?

Professional fiduciaries are people who have set up small businesses serving as guardians, conservators and trustees in cases where there is no family member available to play that role. They tend to be trained in medicine or the social services, but there are no requirements for being a professional fiduciary other than the ability to get a bond and the ability to get appointed. Several prominent fiduciaries in Oregon used to work as nurses. Others hold masters degrees in social work. Some simply learned the profession on the job by working for other professional fiduciaries.

Although there is no license required to become a professional fiduciary, most of the professionals in Oregon belong to the Guardian/Conservator Association of Oregon. The web site contains a list of its members. If you go to the list you will see that I am a member. I am not a guardian or a conservator, but I deal enough with the professionals that I want to keep up with what they are doing.

In a guardianship or conservatorship the professional fiduciary needs his or her own lawyer. Professional fiduciaries build relationships law firms and use the same ones over and over. The fiduciaries give work to the law firms, and the firms give work back to the fiduciaries. If you are an elder law lawyer it is good for business to have a fiduciary or two who like to hire you. If you are a fiduciary, it is good for business to have a lawyer or two who will call you when a case need the skills of a professional. One hand washes the other.

One interesting aspect of the connection between law firms and fiduciaries is that a professional fiduciary can file a petition for the appointment of a guardian or conservator even if no one in the family wants it to happen. For example, a fiduciary with connections in the medical community might get called when a medical provider is suspicious about the welfare of an elder. The fiduciary goes to her favorite law firm and causes a guardianship petition to be filed. A few days later the family is inundated with legal papers from a person completely outside the family who is asking to be appointed guardian for the disabled elder and expecting to be paid, along with the attorney, from the funds of the elder. There have been some complaints about this process, but the courts have tended to allow it on the grounds that it does result in protection for elders.

The professionals, like law firms, have their own personalities. Some are sweet social worker types who try to make everybody happy. Others are tough, stepping in to make the difficult decisions when the people in the family cannot. Almost all fiduciaries do business as sole proprietors or small partnerships. Some run their businesses out of their homes.

Fiduciaries, in addition to having connections with law firms, also develop connections with arms of government. Some fiduciaries will work only within the state court system. Others work primarily with the U.S. Department of Veterans Affairs and its system for providing benefits for disabled vets. Tension between the state and federal government in this area, translates into tension among the fiduciaries attached to each.  An elder law lawyer thrust into one of these disputes among agencies and their favored fiduciaries spends as much time on the politics of the case as she does on the law.

What do the Professionals Do and What Does it Cost

Professional guardians make medical and placement decisions for disabled elders. Professional conservators collect, secure, and manage the money for elders who cannot do that themselves. They charge between sixty-five and an hundred dollars an hour. They often employ bookkeepers and caseworkers who charge less than that. They do whatever is required by the court order appointing them and report yearly to the court. Once appointed, they are extremely difficult to get rid of.


In the right circumstances, having a professional fiduciary take care of your love one can be a blessing. You go back to being a child or a grandchild or a friend and the professional makes the hard decisions. In the wrong case it can be a nightmare. For a period of time, I made a good living litigating against professional fiduciaries who had clear and firm ideas about what should happen to an elder and were not about to let meddling loved ones or even the law get in their way. If you must invite a professional fiduciary in your life, try to get Anne Sullivan and not Nurse Ratched. In the beginning it can be hard to tell the difference. Demand references and talk to people in the business to make sure the person will work for your family.

Monday, July 12, 2010

Oregon Guide to the Players: Lawyers continued

In my last post I talked about elder law lawyers and where they come from. I will now assume that you read that post and have hired an elder law lawyer to help you get a guardian appointed for your elderly demented parent who is no longer safe living alone. Your lawyer learned all about your parent and filed a petition in court asking that you be appointed to make decisions for your parent. You intend to move your parent to a long term care center. Before you know it there are lawyers everywhere. Let’s take a look at where they all came from.

Your Lawyer

You know where your lawyer came from. You learned about the various kinds of elder law lawyers. You avoided any of the behaviors described in my post about how not to hire an Oregon elder law lawyer. Then you found a lawyer you liked and hired him or her.

A Lawyer for the Disabled Elder

After your lawyer filed the papers necessary to begin the guardianship, he had the papers personally served upon your disabled parent and mailed to the other members of the family. The papers served upon your parent gave directions on how to object to the proceeding. One of the papers is a blue form which stands out from the others. It is the form your parent uses to object to having a guardian or a conservator appointed.

Sometimes the elder signs the blue objection form. Sometimes a concerned relative signs the form and claims the elder did it. Elders served with a petition for the appointment of a guardian have been known to emerge from deep coma’s long enough to sign the blue objection form. Lets assume that your elderly parent received the form, decided you were just out to get her money, and vows that she will never leave her home.

Your disabled parent might go out and hire an elder law attorney using the same method you used to find your attorney. Your parent’s lawyer would then defend the elder’s right to make decisions for herself. If your parent objects by filling out the blue form, but does not hire a lawyer, the court may appoint one for her. The court uses a list. The lawyers on the list have agreed to take court appointments with the understanding that sometimes the lawyer will get paid and sometimes the lawyer won’t. I am on the list. Being on the list is a risk, but we do it because we think that the elder in these cases should have a lawyer on her side.

Now we have two lawyers. Your lawyer filed the case. Your parent objected and the court has appointed a lawyer from the list to represent your parent.

But we aren’t done yet.

The Lawyer for the Professional Fiduciary  

Soon after your parent gets a lawyer, your lawyer calls you into his office and gives you fourteen reasons why you should not be the guardian for your parent. The most convincing reason is that being a guardian for your objecting parent may well destroy the parent-child relationship. Your lawyer suggest that you ask a professional guardian to step in. There is a small industry consisting of social workers, nurses, and psychologists who make a living being guardians and conservators for the elderly.  Your lawyer recommends one and you agree.

Soon you find that the professional guardian suggested by your lawyer has her own lawyer. The professional’s lawyer comes from one of the local elder law firms or is a well-established sole practitioner who does nothing but elder law. Elder law lawyers develop ongoing relationships with these professionals. Elder law lawyers regularly recommend certain professional guardians and conservators to their clients, and professional guardians reciprocate by hiring those elder law lawyers to represent them in other cases. If your lawyer said that Fred Feelgood would probably be a good professional for your parent, it is probable that Fred has hired your lawyer to represent him in other cases.

Now you have a lawyer, your parent has a lawyer, and the professional fiduciary has a lawyer. How many lawyers does it take to keep your elderly parent safe? The answer is three. If your parent has money, all of them may expect to be paid from your parent’s cash. And  there could be more.

Lawyers for the other relatives and government agencies.

When your lawyer filed the papers to have a guardian appointed, he gave copies of the papers to several of the the elder’s relatives, the state of Oregon, and sometimes the U.S. Department of Veteran’s affairs. Any concerned relative or disgruntled government agency is entitled to file papers in the case and have their issues heard. Thus, that angry brother of yours who thinks your parent should never be allowed to eat salt gets his day in court. If your elder is receiving government benefits, the agency in charge  may have something to say. The courtroom is quickly filling with lawyers.


The old Chinese blessing wishes you a life without lawyers. Before you go off to file the papers to start a guardianship or conservatorship, be aware that you are putting the wheels of justice in motion. We lawyers are like owls--we see motion and swoop in to feed. What started as a simple visit to one Oregon elder law lawyer can end with a courtroom full of them. This is not to suggest that you shouldn’t do it. If an elder is in danger, you may have no choice. But be warned, you may end up in a courtroom full of lawyers, every one of them wanting to be paid from the funds of the disabled elder. The point is that filing for a guardianship or conservatorship attracts expensive professionals. Don’t do it unless the result you want to achieve is worth the risk that you are taking.