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.