Comprehensive Planning. Lifelong Solutions.

AMBROSIO V. WOLF: A Will Contest Cannot be Brought Until After the Testator has Died

By Shannon Laymon-Pecoraro, CELA

In June 2012, Nancy D’Ambrosio (“Nancy”) suffered a stroke that resulted in a need for 24-hour care services. She subsequently executed a power of attorney naming her son, James, as agent. A year after executing the power of attorney, she signed a will (the “Will”) leaving everything to her two daughters, Jane and Electra, and shortly thereafter a medical power of attorney naming James as the agent.

Nancy’s daughters, as a result of their relationship with James, filed a petition to appoint a guardian and conservator for Nancy and to void the power of attorney. After numerous amended pleadings from both sides, a mutually agreed upon order was entered by the trial court that ultimately appointed a neutral third party as guardian and conservator of Nancy.

After Nancy’s death in 2015, the Will was probated and James filed a complaint to impeach the Will. Jane and Electra filed a responsive pleading to have James’s action dismissed, claiming, in short, that during the guardianship proceedings James not only asserted that Nancy had capacity during the time the Will was executed, but also that he could have asked the Will be invalidated at that time. The trial court found in favor of Jane and Electra. James appealed to the Supreme Court of Virginia.

One of the legal concepts addressed on appeal was claim preclusion, which essentially involves the inability to re-litigate claims that arise or could have arisen in an earlier suit. Jane and Electra contented that in the course of the guardianship proceeding, James could have challenged the Will, and by failing to do so, was barred from doing so now. James asserted that because the Will was not effective until the death of Nancy, he had no injury until her death and therefore no standing to make such a claim. The court agreed with James and found that because the Will was revocable until Nancy’s death, James had an expectation of what would occur, but that no cause of action could be brought prior to Nancy’s death.

As elder law attorneys, we often see demands made by family members to see the provisions of various estate planning documents. We also see family members who attempt to receive lifetime gifts via the attempt to enforce the provisions of a Will during the life of the maker. This case was an important reminder that a will is not effective until the maker of the will dies.

Kit KatAsk Kit Kat – Cockroach Ingenuity

Hook Law Center:  Kit Kat, what can you tell us about the ingenuity of cockroaches?

Kit Kat:  Well, these creatures have a few characteristics that might be useful for humans. The cockroach’s body and skeleton are amazing! Scientists have long been intrigued by their flexibility when colliding with objects like walls. How could they do this without, seemingly, losing any momentum? Normally, a cockroach can travel up to a speed of 3.4 miles per hour. Also, they are escape artists when pursued, as anyone knows who has encountered one. So Dr. Kaushik Jayaram, a biologist at Harvard University, decided to find out exactly why. He became the lead author of a study which was recently published in the Journal of the Royal Society Interface.

The questions Dr. Jayaram was seeking answers to revolved around the issue whether or not cockroaches were banging into things on purpose or whether there was strategy involved. So they filmed the actions of 18 male American cockroaches, and studied the results through viewing the film in slow-motion. What they found was that 80% of the time, the roaches were banging into things, with no-slowing when approaching an object. 20% of the time, they did seem to slow down to minimize impact. In both cases, they were surprised to learn that either strategy was just as  effective, with no negative consequence to the roach’s exoskeleton. In other words, their exoskeleton is so flexible, that it could withstand direct hits. It wasn’t necessary for think about what they were doing; just to keep moving.

Dr. Jayaram and his colleagues think that there are implications not necessarily for humans, but for robots which help us accomplish many tasks today. In the future, ‘small robots can be built with simple, robust, smart bodies to safely bump into obstacles instead of using complex and expensive sensing and control systems.’ Who knew that the lowly cockroach could tell us so much!

(Douglas Quenqua, “How Cockroaches Crash Into Walls and Keep Going,” The New York Times (Trilobites section), Feb. 13, 2018)

Upcoming Seminars

Distribution of This Newsletter

Hook Law Center encourages you to share this newsletter with anyone who is interested in issues pertaining to the elderly, the disabled and their advocates. The information in this newsletter may be copied and distributed, without charge and without permission, but with appropriate citation to Hook Law Center, P.C. If you are interested in a free subscription to the Hook Law Center News, then please telephone us at 757-399-7506, e-mail us at mail@hooklawcenter.com or fax us at 757-397-1267.

Posted on Tuesday, February 27th, 2018. Filed under Senior Law News.

Protecting an Inheritance from Divorce

By Sarah Schmidt, Esq.

One of the most common questions estate planning attorneys receive is the proverbial, “Should I have a will or a trust?” Although the answer to that question must be given in light of each client’s individual circumstances, one primary consideration in creating an inter vivos trust is the protection that it can afford beneficiaries upon death. One of those protections, for example, is the protection from future creditors or divorce.

This planning tool was recently highlighted in an unpublished opinion by the Court of Appeals of Virginia.  In Montgomery v. Montgomery, wife in the divorce proceeding was a beneficiary of her parents’ trust and the survivor of her parents had recently passed away. Notably, the trust, at the death of both of the parents, provided that the assets should be distributed outright per stirpes to both kids, but the court found that it could not be attributed to wife in awarding spousal support because the trust granted the trustees the discretion to retain investments “for as long as the Trustee may deem appropriate, whether or not such assets satisfy the prudent investor standard, produce income or represent an over concentration in one investment.” The court found that because the distributions had not yet been made and the wife, who was only a co-trustee of her parents’ trust, had no authority to direct or require the distribution, the future beneficial interest was insufficient so as to be imputed to the wife as income in the divorce proceeding. The wife had not yet “inherited” the property and  “the circuit court lacked the authority to reach into the trust to force wife and [the co-trustee]—who is not a party to th[e] divorce litigation—to dispose of trust property or to impute income to wife based upon undistributed trust assets.” You can view the opinion at this link.

In considering using a trust as an estate planning tool, clients should consider the likelihood that a beneficiary—even a remote or contingent beneficiary—will get divorced. The statistics and data collected showing the rate and number of marriages that end divorce are remarkable.

While the trials and tribulations that a beneficiary may have to endure in life are, of course, most often unforeseen and unpredictable, proper estate planning can truly not only protect an inheritance for a beneficiary so as to sustain them in times hardship, but also to sustain an inheritance to benefit future generations.

Kit KatAsk Kit Kat – Elephants & Bees

Hook Law Center:  Kit Kat, what can you tell us about elephants and their fear of bees?

Kit Kat:  Well, this is extremely interesting! It has long been known that the mighty elephant is very fearful of the tiny bee. One-on-one, the bee is not a threat to the elephant, but in swarms, they can be extremely annoying, especially if they get in the elephants’ trunk, mouth, or eyes. So with this knowledge, scientists have decided to turn this fear to the elephant’s advantage.

Elephants are at risk from farmers when they wander into fields and feast on certain crops. So instead of using electrified fences to keep the elephants out, scientists are conducting experiments in which beehives, alternated with fake hives, are strung every 20 meters around a farm’s perimeter. The success rate of keeping the elephants away is around 80%. There’s an added bonus in that the fences with beehives are significantly less expensive than electrified fences. Save the Elephants, a non-profit conservation group, estimates that the beehive-loaded fences cost 1/5 the cost of an electrified one. It’s also been discovered that a totally fake beehive fence doesn’t work. The elephants can detect that. There have to be some live bees buzzing to remind them of the danger. It turns out that elephants are quite intelligent!

The above discussion primarily refers to African elephants. Asian elephants behave a little differently. Scientists are not sure if that’s because the bees in Asia tend to be less aggressive. However, the fences are being tried on both continents. Dr. Lucy King of Oxford University in Great Britain, who is working on this project comments, ‘When I first started, I had to really persuade people to try it. They thought I was absolutely insane. Then they thought, well, she’s giving us free beehives, so whatever. Now people are queuing up to do it.’ If scaring away the elephants doesn’t work perfectly, they can at least make some money on the side with the sale of honey! It’s a win-win for everyone! (Karen Weintraub, “Elephants Are Very Scared of Bees. That Could Save Their Lives.” The New York Times (Science section), Jan.26, 2018)

Upcoming Seminars

Distribution of This Newsletter

Hook Law Center encourages you to share this newsletter with anyone who is interested in issues pertaining to the elderly, the disabled and their advocates. The information in this newsletter may be copied and distributed, without charge and without permission, but with appropriate citation to Hook Law Center, P.C. If you are interested in a free subscription to the Hook Law Center News, then please telephone us at 757-399-7506, e-mail us at mail@hooklawcenter.com or fax us at 757-397-1267.

Posted on Monday, February 19th, 2018. Filed under Newsletter.

Dementia and Driving

By Letha Sgritta McDowell, CELA

Currently, more than 5 million Americans are living with dementia, and that number is expected to increase to over 16 million by the year 2050.  While many aspects of dementia are still a mystery, the disease itself and many of its affects are familiar.  Due to the eventual impairment to memory and executive decision-making skills, a person living with dementia will eventually need to stop driving.  Unfortunately, many individuals living with dementia are shocked and dismayed to hear family members or a physician suggest they stop driving.  The inability to drive represents a loss of freedom and the (very real) potential for isolation and confinement.  In order to lessen the blow, it is important to prepare in advance for this eventuality.

First, it is important to recognize signs which may indicate that it is time for an individual with dementia to stop driving.  In order to plan ahead, it is helpful if both the person with dementia as well as family and friends are familiar with this.  Indications that it may be time to stop driving can include:

  • Failure to obey traffic signs
  • Getting lost in familiar places
  • Confusing the gas pedal with the brake
  • Difficulty staying in lane
  • Making poor choices about passing, stopping, and speed
  • Mysterious dents or scratches on the vehicle
  • Longer than typical drive times
  • Confusion or anger while driving

This list is not exhaustive but contains good examples of signs to watch for.  If the person with dementia is educated in advance about these concerns and the possibility that driving may no longer be feasible, it tends to ease the transition when confronted with the situation.

When considering the need to stop driving and preparing for the eventuality, it is also helpful to have a plan in place so the individual with dementia can maintain some independence.  Locating resources in advance is critical to this.  Many counties have public transportation that can be easily arranged; some even have special transportation systems for older adults and adults with disabilities that can be arranged in advance.  This alleviates the stress and concern which can surround locating a bus stop or train station.  In addition, many senior centers will provide transportation to and from activities as will church groups.  It may also be helpful for a family to consider in advance what transportation they may provide.  Some families will agree in advance to schedule regular outings to grocery stores, department stores, restaurants, theaters, concerts, or other social events.  If in place in advance, these outlines can alleviate much of the anxiety associated with the feeling of loss of freedom due to the loss of driving skills.

Some adults living with dementia will choose the time they are unable to drive as a time to move into either an older adult community or assisted living community.  While not the right choice for everyone, these communities provide regular meals (alleviating the need for trips to the grocery store), prearranged shopping outings, and a large number of social activities which combats the feelings of isolation and depression that can exist when someone is no longer able to travel independently.

Some may be tempted to simply limit driving to familiar areas close to the home.  However, professionals caution against this as the large majority of all accidents happen within close proximity to home.  In addition, slowed reaction times and misjudgments which may occur with dementia are especially dangers in neighborhoods where children may be playing outside or pets may be darting into the road.

For many, driving represents freedom and independence and no longer being able to drive can feel as if one is being forced into confinement and isolation.  However, being familiar with the signs as to when to stop driving and having a plan in place for that eventuality can make the transition smooth and easier for both the person with dementia and their friends, family, and caregivers.

Kit KatAsk Kit Kat – Pig Pens

Hook Law Center:  Kit Kat, what can you tell us about how pigs are bred on commercial farms?

Kit Kat:  Well, this is something I was unaware of until I read a recent article in The Virginian-Pilot. Smithfield Foods has made great progress in recently ending their previous practice of narrow stalls for pregnant pigs. The stalls were called “gestation crates,” and they were so small the pigs couldn’t turn around. At a cost of $360 million, their farms now use a system referred to as “group-housing systems.” This means that the pregnant pigs are kept in group pens or can move between pens and individual stalls. This change fulfills a promise the company made 10 years ago. In part, the company made the change as a response to pressure from animal rights groups and from large companies like McDonald’s, Kroger, Burger King, Harris Teeter, and others. There is still work to be done, however. Tyson Foods and Seaboard Foods continue to use the gestation crates.

Gestation crates came into use in the 1960s. There are some advantages—they kept pigs out of bad weather, facilitated medical care, and prevented the pigs’ waste from mixing into the feed. There is conflicting research on the matter. There were some advantages in that there was less aggression among the animals, and the number of litters increased. However, it was inhumane according to the Humane Society, and it led the way to change the practice. The Humane Society started their campaigns in several large states like Florida, California, Michigan, and Ohio, to name a few.

Smithfield Foods uses two types of group housing at its 200 sow farms across the nation. One is called “free-access,” which means that groups of 30-40 pigs live together, with access to individual stalls when they desire it. This accounts for about 25% of their farms. The other type is called “small group housing.” With this latter style, 5 – 6 pigs live together. Stewart Leeth, chief sustainability officer at Smithfield Foods comments, “When you put pregnant animals in together, the sows will have to establish a pecking order. There is some fighting involved, and once that kind of resolves itself…, they typically are fine.”

Smithfield Foods is making the transition at its international farms a bit more slowly. Farms in Romania and Poland have already changed, but other farms abroad are being given the deadline of 2022. If they have not converted by then, their contracts with Smithfield Foods will not be renewed. So kudos to Smithfield Foods! They’ve demonstrated that they are good, corporate citizens! (Elisha Sauers,“Finally, Smithfield’s sows get some relief.” The Virginian-Pilot, Jan. 24, 2018, p.1 & 11)

Upcoming Seminars

Distribution of This Newsletter

Hook Law Center encourages you to share this newsletter with anyone who is interested in issues pertaining to the elderly, the disabled and their advocates. The information in this newsletter may be copied and distributed, without charge and without permission, but with appropriate citation to Hook Law Center, P.C. If you are interested in a free subscription to the Hook Law Center News, then please telephone us at 757-399-7506, e-mail us at mail@hooklawcenter.com or fax us at 757-397-1267.

Posted on Friday, February 9th, 2018. Filed under Newsletter.

Cold or Flu – How to Tell the Difference

By Hook Law Center

Well, it’s that time of year again—cold and flu season! If you haven’t had either one, you’re extremely fortunate. Experts tell us that more than 60,000 people in the US have had the flu already this year. According to Margarita Rohr, a clinical instructor of medicine at New York University’s Langone Health, ‘This season is different because H3N2 is the predominant strain of flu. This is important because historically, this strain of flu has been associated with higher intensity of symptoms, more frequent hospitalizations and deaths.’

So here is a summary of the differences. Some symptoms are present in both cold and flu; however, there are some clear markers of the flu:

  • Flu symptoms are usually more intense. According to Dr. Rohr, ‘a major symptom of the flu is muscle and body aches, which can be severe.’ Colds may have body aches, but they are usually less severe.
  • Flu symptoms appear quickly. According to Dr. Ian Tong, chief medical officer at Doctor On Demand, colds develop more slowly. ‘You can go from well to sick within a few hours (if you have the flu),’ he says.
  • Your body will feel more run down with the flu. If you can force yourself to go to work, it’s probably a cold. However, if you feel completely exhausted, it probably is the flu. According to Dr. Rohr, the feeling of exhaustion may linger for weeks.

If you suspect that you have the flu, see a doctor as soon as possible for a prescription.

Medicines like Tamiflu can help reduce the time you are afflicted with the illness. However, you must not delay. ‘The treatment window for flu is usually within the first 48 hours of the onset of symptoms,’ Dr. Tong says. And of course, the other normal recommendations apply: gets plenty of rest, stay hydrated, eat well and include soups which can be an easy way to consume a lot of nutrients without a lot of cooking, and use a humidifier to open up breathing passages.

If your symptoms worsen, do not hesitate to return to the doctor for additional treatment. High fevers of 103 or 104 degrees Fahrenheit should not be ignored, warns Dr. Tong. Flu, also, can make one susceptible to other illnesses, like bronchitis, pneumonia, and sinusitis, according to Dr. Rohr.

Good luck this season! Listen to your body! It can tell you lots about yourself!

(Lindsay Holmes, “Do you have the flu or just a cold? Here’s how to tell. Health section of Huffington Post, 1-30-18)

Kit KatAsk Kit Kat – Food Stamps for Pets?

Hook Law Center:  Kit Kat, should people who receive food stamps (now known as SNAP for Supplemental Nutrition Assistance Program) be allowed to use them to buy pet food?

Kit Kat:  Well, this is not a “yes” or “no” answer. The issue is complicated. It certainly is a worthy goal, since 14% of all households with pets make less than $25,000 a year. Current policy is that SNAP benefits cannot be used to buy pet food. It’s been that way since the program’s inception in 1964. Also, it would be hard to establish policies. A Chihuahua doesn’t eat as much as a Bernese mountain dog, for instance.

Edward B. Johnston, Jr. of Mississippi is going to try to have the policy changed. He sometimes has to share his meals with his dog, which is really not ideal for his dog’s health. He petitioned the Department of Agriculture along with 80,000 other people on the petition site Care2, as well as several animal welfare organizations. It’s a problem not unique to him. The ASPCA estimated in 2015 that 30% of low-income people who gave up their pets for adoption did so because of the cost of feeding a pet, which is approximately $235 per year, according to the Pet Products Association.

Until a decision is made, charities and companies like PetSmart fill the gap. Some food banks have food for pets, and PetSmart has joined Feeding America to distribute pet food to their national network of food banks. It’s not a perfect solution. Some like Mr. Johnston, who resides in rural Mississippi, lives 2.5 hours from the nearest food bank. The closest animal shelter is in another county. He wrote in his petition, ‘Being poor is hard enough without being expected to give up your companion.’ He intends to keep fighting. (Caitlin Dewey, “The surprising argument for extending food stamps to pets,” The Washington Post, January 23, 2018)

Upcoming Seminars

Distribution of This Newsletter

Hook Law Center encourages you to share this newsletter with anyone who is interested in issues pertaining to the elderly, the disabled and their advocates. The information in this newsletter may be copied and distributed, without charge and without permission, but with appropriate citation to Hook Law Center, P.C. If you are interested in a free subscription to the Hook Law Center News, then please telephone us at 757-399-7506, e-mail us at mail@hooklawcenter.com or fax us at 757-397-1267.

Posted on Monday, February 5th, 2018. Filed under Newsletter.
Like us on Facebook
Planning Guides

Sign up for our email newsletter and get access to our free planning reports.

SUBSCRIBE NOW

Ask Kit Kat: Pet advice and wisdom as Kit Kat sees it.

ASK ME