Oregon Estate Planning Trusts are Failing when it Comes to Incapacity

One of the stories I tell when touting the advantages of an estate planning trust is that the trust, unlike a will, provides directions for use of your money in the case of incapacity. The trusts I write and the trusts I see all have instructions about what your loved ones should do with your money if you develop dementia. Every trust has a clause explaining who should make the decision that you cannot handle your own affairs and how the decision should be made. I have re-written that clause in my own form a hundred times, because every one of my ideas, in real life, ends up being silly.

I have felt guilty about inability to write (or steal from some other lawyer's form) a satisfactory clause to transition trust management upon incapacity. Having just come from another court hearing in which children were asking the court to appoint a guardian and conservator for their mother, I wonder if the fault is really mine. Incapacity—and by that I mean dementia—does not call ahead to announce it is coming and show up when expected. Sometimes elders see it coming and step down from money management. Sometimes children see it in its early stages, locate the trust, and take the steps to protect the elder from cognitive decline. In just as many cases, however, the elder cannot see her own loss of ability and the children, if there are any, for a wide variety of reasons are not in a position to step in.

Guardianships and conservatorships end up before a judge because there is a crisis. The elder is in physical danger or the elder's money is in danger of being lost. Estate planning trusts were designed to avoid this trip to court, but estate planning trusts and family crises do not play well together. If grandma is wandering on the freeway or sending all her money to African scammers, that old revocable living trust she has sitting on the top shelf in the closet is unlikely to provide the kind of protection she needs. Guardianships and conservatorships are regularly ordered for elders who have trusts because the protective mechanism contained in the trust proved to be ineffective. When this happens, the trust, which was designed to simplify procedures in case of incapacity, makes the situation worse.

We estate planning lawyers mislead clients when we tout the disability provisions in our revocable trusts. Sure, the trusts sometimes keep the client out of court, but mant times they don't. If the case does go to court, the trust is seldom helpful. If grandma is sending all her money to scam artists the court appoints a conservator. Often this will be a professional fiduciary. The conservator then discovers that all of grandma's money is held in trust, and the person named in the trust to take charge is the same cousin Joe who sat on his hands and let the situation become a crisis in the first place. He doesn't want anything to do with managing the money and the court wouldn't trust him to do it if he did.

What happens? More often than not, the court appoints the conservator to be trustee of the trust. Now we have the worst of both worlds--a conservatorship and a trust administration. A similar thing happens when you create an estate planning trust but only manage to put half of your property into the trust: when you die you get both a probate and a trust administration. One of the cases in my office now involves a woman who got the full Monty—a conservatorship while she was alive, a trust case while she was alive, trust administration at her death, and lastly, a probate. Just imagine the attorney fees. The trusts, designed to help, were thwarted by the complexity and unpredictability of human endeavor, and ended up being a hindrance.

Incapacity refuses to play by the rules. It is creative, hurtful and destructive. It pushes aside the plans we made to control it and takes off in unexpected directions. I don't believe that better trust drafting is the answer. I simply do not think that trusts, when it comes to incapacity, are up to the task we ask them to perform. At the end of the day, only a judge truly has the ability to look at incapacity in its varied forms and adapt the protective intervention to the situation before it. When we draft trusts we should admit this outright and instead of writing trusts to avoid court, write them in a way that helps the court when the crisis comes.

This gives me an idea for another blog post. I think I will call it Legal Documents that Promise Too Much. Stay tuned. That may be my next one.

An Update on Income Cap Trusts in Oregon

An income cap trust is, as I have explained in another post, a legal trick that allows people with too much income to qualify for Medicaid to qualify anyway. In brief, the trick works by putting all of the elder's income into a trust every month. At the end of the month the trustee pays all the income to the care center, and Medicaid picks up the difference between what the care center received and what it charges. It is a little more complicated than that, but not much.

In the past people learned about income cap trusts when the Medicaid intake worker announced that the elder didn't qualify for long term care benefits because the elder had too much income. The applicant—usually one of the elder's relatives holding a power of attorney—was advised to get a lawyer. The relative would contact me or some other Oregon elder law lawyer to get a trust.

I have done a lot of income cap trusts. I downloaded a copy of the recommended trust from the Oregon Department of Human Services website and made a few changes. I wouldn't have had to make any changes, but lawyers can't leave anything alone if it was written by another lawyer. When someone hires me to do an income cap trust, I take out my version, change the names to fit the new client, and print it out. Next I call the case worker and agree on the income and payment numbers so that my client, the trustee, will know who and how much to pay each month from the income of the elder. I have my client open a bank account to hold the trust funds, give him advice on how to administer the trust, and my job is done.

Doing income cap trusts is easy work and it pays well. I like that, but it has always seemed to me unnecessary. Medicaid intake workers handle complicated income and asset matters every day. I could never understand why they couldn't take it one more step and help applicants set up income cap trusts.

Now it seems that they have. I have talked to several people in the Portland metropolitan area who have applied for Medicaid, and, when it was determined that the applicant needed an income cap trust, the Medicaid worker handed out a fill-in-the-blank trust form and do-it-yourself instructions. One of these folks wrote me an email, asking me what if any value I could add by doing the trust for them instead of using the form. I couldn't think of a thing. With good forms and the cooperation of the Medicaid intake worker, there is no reason that a reasonably intelligent family member couldn't create and administer an income cap trust without a lawyer.

I think that Medicaid should have been doing this all along, and to the extent that some Medicaid offices are not doing it, I would encourage them to do so. The use of income cap trusts is so standardized that I, as a lawyer, have a hard time providing any value to the client. I will miss the income, I suppose, but I won't miss the work. Creating and funding an income cap trust is necessary drudge work, but it is neither difficult nor creative. I am all for letting unrepresented applicants do all but the most complex of them.

The Trouble With Trusts (in Oregon estate planning)

I love trusts. A contract, at its simplest is a legal relationship between two people. A trust, at its simplest is a legal relationship among three people. Maybe it's my farm background, but I like the three-legged stool, and I keep my copy of Oregon's trust code always near at hand.

Despite my love of trusts I have become discouraged about using them for estate planning. The source of my discouragement is not how trusts work, the theory behind the trusts, or the law governing trusts. Rather it is that people dealing with a relative who has died leaving a trust so often go crazy.

If you have a will you go through probate. In probate you file the will with the court and that begins a series of logical steps. You notify the heirs, inventory the assets of the dead person, pay the claims of creditors, prepare an account of everything you have done, and distribute the money. Executors appointed by the court seldom have a problem doing these things, because each step makes sense and each one is required by law. If, the executor fails do these things in a timely manner, the court sends out a nasty note saying that if the current executor can't get the job done the judge will be pleased to replace him or her with someone who can.

The same steps that are mandatory in probate are also either required or strongly suggested when it comes to managing trusts. When an estate planning trust becomes irrevocable because the creator of the trust has died, the new trustee should notify the beneficiaries of the trust, inventory the property owned by the trust, pay the claims of creditors, then prepare an account of everything the trustee did and then distribute the money. In one way or another Oregon's uniform trust code requires that a trustee do each of these things, and even if it didn't, doing them is a very good idea. In the case of trusts, however, if the trustee fails to do his job there is no court to write nasty letters. Without those letters people go nuts.

In my experience, non-professional trustees assume their duties with great enthusiasm and then proceed to do everything wrong. They fail to notify the beneficiaries of the trust that they are taking over as trustee, and then fail to provide the beneficiaries with a copy of the trust. They take a job that is best done in the open and treat their work as if it is secret. They fail to inventory the trust property, or if they do they keep the inventory secret. This naturally makes the beneficiaries suspicious about what the trustee is doing. The beneficiaries then ask what the trustee is doing, and, rather than being open and honest about the administration, the trustee gets all up in the air about it and tells the beneficiaries to go pound salt. The beneficiaries are now understandably pissed off because they haven't seen the trust, or the inventory, or the account--so they come to see me.

I see a stream of trust beneficiaries with the same set of complaints. The trustee is holding back documents, failing to answer questions, and is unduly and unnecessarily secretive. The beneficiaries suspect the trustee is mishandling the money, and who wouldn't think that.

More often than not the trustee is not mishandling the money; he is simply being a jerk. At great expense to all parties I pry the information out of the trustee and give it to the beneficiaries. By this time, however, the trustee and the beneficiaries are not speaking to each other.

I am tired of it. I may go back to wills. I do my share of cases in which the validity of a will or the actions of a personal representative may be at issue, but at least with wills the personal representatives don't go so crazy that they think they can administer the estate without giving the heirs a copy of the will. Maybe it is the threats from the court that keep them on the straight and narrow, but I really don't care. Trusts, no matter how much I personally love them, make people crazy, and crazy people make me crazy.

Probate is just not that bad, and it looks downright inviting if the alternative is having to deal with crazy people.

Family alignment in financial elder abuse cases in Oregon

I have written before that the people who file financial elder abuse cases under Oregon's elder abuse statutes are seldom abused elders. The only cases I ever see in my office are cases filed by fiduciaries: conservators if the elder is alive or executors if the elder has died. In the real world, the cases are filed by one family member against another. Most of the cases involve siblings: Cain and Abel battling over Adam's money.

Financial elder abuse cases filed by conservators and executors tend be attempts by one sibling against another to undo gifts made by the elder. For example, Adam gives Abel the house, and when it comes to reading the will it turns out that the house was the only thing of value that Adam owned. Cain is out of luck. He goes to his Oregon elder law lawyer and sues Abel for financial elder abuse on the grounds that Abel used undue influence to get Adam to sign the deed.

If old Adam has dementia instead of being dead, Cain either gets himself appointed conservator or gets his Oregon elder law lawyer to hire a professional fiduciary who will do the deed for him. Cain then files the elder abuse case while Adam is still alive. The goal is still the same--to bring the house that Adam gave away back into the estate so Cain can inherit it according to the terms of the will.

I have a case in which it is a daughter against mother over grandma's property, but the bulk of the cases I see are brothers and sisters fighting with each other. Seeing siblings fighting like this can be discouraging, but I have to remind myself that humans have a rich history of such fights. We have Cain and Abel of course, and in the old days when the becoming king of a nation was at stake, siblings murdered each other to protect an inheritance. Compared to that, going to court is actually quite civilized.

You may think that you are safe from brotherly litigation because you get along well with your siblings or because your parents have no money to fight over. Beware--these disputes suck in everyone close to the battlers. I know of a case locally where the court entered a judgment against the wife of one of two battling brothers because her husband spent his ill gotten goods paying the mortgage on the home where he and his wife lived. Being anywhere close to these disputes is dangerous.

I think the Oregon legislature had the best of motives when it passed the Oregon financial elder abuse statutes. It wanted to protect elders and punish those who would take advantage of them. I doubt they had in mind a full-employment law for probate litigators, but it seems to me that is what has happened. For people, who want to challenge the estate plan of a parent, it adds an additional legal weapon that can be put to use before the elder is even dead. For people who have received large gifts from elders, it makes for sleepless nights. And for lawyers like me who make a good living off of family discord, it means a regular income.

Powers of Attorney and changes in beneficiary designations on life insurance and retirement plans.

Recently I have had a lot of cases in which someone has used a power of attorney to change the beneficiary designations on an elder's life insurance or retirement plan. After the change, the elder dies, the life insurance company or the administrator of the retirement plan pays off according to the beneficiary designation, and then shortly thereafter we are in court.

Let's review. When a person dies, property passes in one of three ways. Property owned jointly with a right of survivorship passes to the joint owner. Life insurance, retirement accounts and pay-on-death accounts go to to the person named on the beneficiary form. The remainder of the property passes according to the terms of the will.

One of the ways to make the will less important or even worthless is to make sure all the major assets pass by joint ownership or beneficiary designations. In the case of real estate, a person might do this by talking the elder into "putting him on" the deed to the house. In the case of life insurance or retirement accounts the person mght convince the elder to change his beneficiary. Sometimes, however, the elder cannot change beneficiary designations. If a person who wants the change to happen has a power of attorney that allows the agent to change the designation, the agent can change the designation himself. If the agent changes the designation to himself, or someone closely related to him, then when the elder dies, we will be going to court.

Going to court is good for me, but not so good for the family.

I have had so many cases about a change of beneficiary made by an agent under a power of attorney that I have changed my standard power of attorney to eliminate the power of the agent to change  beneficiary designations. A power of attorney is intended to allow the agent to handle financial matters for the benefit of the elder.  Beneficiary designations control what happens after the elder has died. I do not understand how changing who gets money after an elder dies is helping a living elder. An agent under a power of attorney cannot change a will: why should the agent be able to change beneficiary designations.

Other lawyers do not share my concerns.  A lot of powers of attorney explicitly or arguably allow the agent to change beneficiary designations, and the agents under those powers seem willing to do it. What happens when they do? The elder dies and the person who used to be the beneficiary sues the person who got the money.

These tend to be complicated cases. Will contests and trust contests all look about the same. Lawyers challenging a change in beneficiary designation need to find a legal theory to get the case to court, and the theories vary from the sublime to the ridiculous. A discussion of those theories is far beyond what I can do in a blog, but I can assure you that when creative legal theories are necessary, the legal bills are high.

As for advice: don't use a power of attorney to change the beneficiary designations for someone else. This goes double if you think it is a good idea to make yourself the beneficiary. And it goes triple if your reasoning is that you have to name yourself because that is what the elder really wants but the elder is too incapacitated to do the deed him or herself. If you ignore warnings one, two and three, and the life insurance company or retirement account administrator pays off, be sure to stash at least half of the proceeds to pay your lawyer in the litigation that is sure to follow.

The economics of financial elder abuse civil cases in Oregon, (or, if you are getting valuable property from a disabled elder, be sure to get it in cash.)

I sometimes sue people for the financial elder abuse of elders. Being a full service elder law lawyer, I also defend people accused of it.

(I have written a bunch of posts about what goes into financial elder abuse cases, who brings them, and the advantages that the treble damages provisions give to a plaintiff. In this post I will stick to the economics of the cases and how to pay the lawyers.)

A friend of mine who teaches classes for other lawyers on the ins and outs of Oregon's financial elder abuse advises lawyers new to the area to look first for the money. Ask whether if you win the case, can you collect on the judgment. If the person accused of elder abuse is a turnip—in that you can't get blood (or money) out of a turnip—what is the point in suing. So first, find a lump of money or a piece of valuable real estate from which any judgment can be collected.

The next question for the plaintiff (the person filing the lawsuit), is how will the lawyer get paid. These lawsuits are expensive. They take a lot of the lawyer time and involve a lot of expenses. There are court filing fees, fees to obtain records, deposition costs, expert witness fees, and a slew of miscellaneous costs. Somebody has to be there to pay these costs, and the lawyer is not going to pay them out pocket on the off chance he or she wins the case and collects. Even lawyers silly enough to take these cases on a contingency basis, will demand that someone be there to pony up for costs and expenses.

Once in a blue moon an elder discovers that he has been cheated and then uses his own money to hire a lawyer and sue the bad guys for elder financial abuse. Everybody loves these cases and hopes for the elder to win. I have never had one of these cases, but I keep hoping.

Most financial elder abuse cases are brought by conservators or executors. That means that when the case is filed, the elder is either demented or dead. The conservator or executor brings the case on behalf of the incapacitated or dead elder alleging that the bad guy—usually a relative—took money from the elder before the elder died or became demented. Most often the claim is that the bad guy used “undue influence” to get the money. (I discuss undue influence elsewhere). The conservator or executor wants to use the case to bring the money or property taken from the elder back into the probate or conservatorship estate so that it can be used for the elder's care or distributed according to the elder's will or both.

A conservator has control of an incapacitated person's money. A personal representative—the same thing as an executor—has control of the money the elder had when she died. The plaintiffs in these cases use the elder's money to pay their lawyers and the costs of litigation.

The key move for a sister who wants to use an elder abuse case to undo that gift of the house from dad to the neer-do-well son, Bob, is to get appointed executor or conservator. Whether sis can get appointed executor depends on dad being dead and what the will says. If dad is loopy but not dead, sis can ask that she be appointed conservator. It could look bad if she gets appointed conservator and then immediately sues Bob, so she might instead ask that a professional conservator be appointed. Because of all the money that can be made by a professional conservators in cases like this, it will not be hard for her to find a local professional willing to carry the water for her in a lawsuit against Bob. The professional will take possession of dad's assets and use them to hire a lawyer to sue against Bob.

Now let's turn to the other side. Bob finds himself served with a lawsuit for financial elder abuse because dad gave him a house.

I was at a conference on elder law once and I joked that one of the reasons I liked doing defense in financial elder abuse cases was that the accused client obviously had the money to pay me. One of my colleagues—a very serious person who assumes that the plaintiffs in elder abuse cases are always the good guys—took umbrage. My joke, however, may have lacked both humor and truth. If dad gave Bob $100,000 in cash that a conservator now wants to recover, Bob has money to pay me, and my fee for all practical purposes comes from the same source of funds that finances the conservator—dad's money.

If, however, dad gave Bob a house to live in and he is living there on his Social Security disability income, he may not have the money to pay for his defense. In that case he will be under enormous pressure to settle. Sis may not be satisfied with just giving the house back because the damages for elder abuse—in this case taking property through undue influence—is three times the damage to the elder. That means three times the value of the house. Sis may demand that Bob give back the house and whatever inheritance he was destined to receive when dad died. With no money to defend the case, Bob may cave. The will might well have said that upon dad's death, his property goes to Bob and sis equally. Getting a free house from dad while he was alive—which probably seemed to Bob a great idea at the time—sinks him in the end. Sis uses her leverage to get the house back plus some or all of Bob's inheritance. It is hardly the result that dad had in mind, but that is life in the big city.

If Bob got $100,000 in cash instead of a house, but spent all the money on booze and women before a conservator gets appointed to sue him, he still has no money to pay a lawyer for his defense. In this case, he will have to settle with sis by giving up the remainder of his inheritance. She will take that because Bob is now a turnip.

The lesson for Bob is that when negotiating a big gift from dear old dad, get cash and don't spend it all. Bob will need a good chunk of it to pay me to defend him when sis sues. Dad's money always pays to bring the lawsuit. Defending dad's wishes and the gifts he gave while alive will require some of dad's money as well.

(If this post makes you angry because dad really did want to give Bob that house or money, see my post on financial elder abuse and the obligation to say no.)

2013 Changes to the Elder Abuse Reporting Requirements in Oregon

The 2013 legislature has tweaked the Oregon elder abuse reporting requirements in a manner that makes Oregon's system for discovering, preventing and punishing elder abuse even weirder and more unwieldy than it was before. Prior to the changes you were required to report elder abuse if you learned about it while practicing one of the following professions:

    (a) Physician, naturopathic physician, osteopathic physician, chiropractor, physician assistant or podiatric physician and surgeon, including any intern or resident.

     (b) Licensed practical nurse, registered nurse, nurse practitioner, nurse’s aide, home health aide or employee of an in-home health service.

     (c) Employee of the Department of Human Services or community developmental disabilities program.

     (d) Employee of the Oregon Health Authority, county health department or community mental health program.

     (e) Peace officer.

     (f) Member of the clergy.

     (g) Regulated social worker.

     (h) Physical, speech or occupational therapist.

     (i) Senior center employee.

     (j) Information and referral or outreach worker.

     (k) Licensed professional counselor or licensed marriage and family therapist.

     (L) Any public official who comes in contact with elderly persons in the performance of the official’s official duties.

     (m) Firefighter or emergency medical services provider.

     (n) Psychologist.

     (o) Provider of adult foster care or an employee of the provider.

     (p) Audiologist.

     (q) Speech-language pathologist.

The new law adds dentists, optometrists, chiropractors and attorneys. It also requires reporting even if the professional is not practicing his profession, Thus, if a dentist is at a barbecue at a park and witnesses elder abuse a couple of picnic tables down, he must report it.

The new requirement doesn't change much, but because it now includes attorneys it has sparked a fair amount of discussion among lawyers.

Attorney-client confidentiality remains inviolate. Thus, lawyers are exempt from reporting if information about elder abuse comes from a client or is learned in the course of representation and would be detrimental to a client. This means that if you hire me and then admit to committing elder abuse, I cannot report you. Similarly, if you come to me and say you are a victim of elder abuse but you want to keep it secret, I will have to keep it secret. Beyond that I am be required to report.

The problem with including lawyers is that we elder law lawyers spend a lot of time speculating about what might or might not be considered elder abuse. Take a look at what the reporting statute defines as elder abuse:

(a) Any physical injury to an elderly person caused by other than accidental means, or which appears to be at variance with the explanation given of the injury.

     (b) Neglect.

         (c) Abandonment, including desertion or willful forsaking of an elderly person or the withdrawal or neglect of duties and obligations owed an elderly person by a caretaker or other person.

         (d) Willful infliction of physical pain or injury upon an elderly person.

         (e) An act that constitutes a crime under [a bunch of other Oregon laws].

         (f) Verbal abuse.

        (g) Financial exploitation.

         (h) Sexual abuse.

         (i) Involuntary seclusion of an elderly person for the convenience of a caregiver or to discipline the person.

         (j) A wrongful use of a physical or chemical restraint of an elderly person, excluding an act of restraint prescribed by a licensed physician and any treatment activities that are consistent with an approved treatment plan or in connection with a court order.

Let's take verbal abuse to start. I know a couple of dive bars where old retired men hang out. Insults, profanity and threats coming from and directed at people over sixty-five are simply part of the ambiance of the place. It goes on every day from opening to closing. If I have to report verbal abuse of elders, should I simply make a list of those places and report it to the Department of Human Services every morning.

Neglect is elder abuse. Try defining “neglect” in the real world and then reporting it to APS every time you hear of something that fits the bill.

Another statute says that it is financial elder abuse to wrongfully take property from an elder. So what is "wrongful?" We know that it is wrongful to take property using undue influence, but the law of “undue influence” is incomprehensible even to lawyers like me who practice in the field.

I have commented among my colleagues that I will soon be sixty-five years old and will then be a vulnerable person. The elder abuse statutes will apply to me. I intend to continue practicing law. If somebody doesn't pay my bill, it will no longer be a collection matter. It will be elder financial abuse because the client has wrongfully taken the services of an elder without paying for it. If someone in the heat of litigation curses at me it is elder abuse. After the new statute goes into effect, maybe I will be required to report the curses and the unpaid bill to Adult Protective Services so its agents can investigate. I know quite a few APS agents. I can just imagine their laughter when I make that call.

Where all of this gets dangerous is in an area of elder abuse we in the field refer to as bystander liability. Under Oregon law someone who commits elder abuse can be found liable in a civil case for three times the amount of damage plus attorney fees. Thus, if you are joint on grandma's bank account (and you never put any money in the account) and you take out a hundred dollars to treat yourself to a night at the casino, you can probably be required to pay grandma back $300 plus the attorney fees it cost grandma to go after you.

The kicker in the above scenario is that if your next door neighbor knows you are taking grandma's money to gamble with and the neighbor doesn't take reasonable steps to stop you, the neighbor can be required to pay grandma three times the amount of her loss plus attorney fees. The bystander who knew about the abuse and didn't do anything about it is as liable as the person who did it. And bystander liability applies to everybody, not just people in the professions listed in the reporting statute. The nice thing about bystander liability is that we lawyers can pick a bystander with money. In the case of grandma's hundred dollars, you are not a good defendant because you have a gambling problem. Your neighbor, however, may have stayed out of the casino and put what he had in savings. He is the one we lawyers will want to sue.

The law in this area has never been clear. It would seem that if the neighbor reported your gambling trip to Adult Protective Services, the report would be considered a reasonable action to prevent the abuse. The statute doesn't say that, but lawyers tend to think so. The theory is that the statute sets out a standard of reasonableness for people in the listed professions. I have never seen a judge say this, but many lawyers have suggested that in the right case, a judge might say it.

If my interpretation of the law is correct, the reporting statute is one that protects professionals from liability where the average person gets no protection at all. Bystander liability applies to everyone. A professional who complies with the reporting requirement might have some protection against bystander liability. A non-professional who reports, even though having no obligation to do so, would also get the protection. But a non-professional who read the statute and thought that he or she did not have a duty to report could be in big trouble.

And when you do report, what happens? Adult Protective Services has the ability to investigate and punish wrongdoers in criminal court. Most cases involving elders, however, are not so dire that evil doers need to be arrested and sent to jail. The elders most often need help with daily living, money management, maybe a restraining order, a conservatorship, or even a guardianship. APS does not provide these things. (I do, but you have to hire me. That costs money.) The job of APS is to prosecute the perpetrators, not necessarily help the elder. I am all for punishing bad guys, but the first rule in my practice is to protect our old folks. Putting someone in jail seldom does that.

The legislature wants to stop elder abuse. The current system works for those severe cases where the behavior is criminal and the perpetrator is clearly a bad guy. The system, however, is less useful on the edges where we find nothing but a dysfunctional family and clever lawyers willing to use any boorish behavior as an excuse to sue somebody in civil court for elder abuse. Often it is hard to tell whether abuse has occurred or not, and even when it has, putting people in jail or having family members sue each other for civil damages may not be the best way to put the family back on track.