Law and Conversation

July 30, 2010

Why you need to know what a power of attorney is

The Illinois Power of Attorney statute has been amended to provide greater protections to principals.  The new law is P.A. 96-1195, effective July 1, 2011.  You can read it on the Illinois General Assembly’s website.

As I wrote in the May 2010 issue of the Illinois Bar Journal, the new law provides notice to those assuming the agent role of their duties and responsibilities and adds the duties of good faith, competence, and diligence to agents’ duty of due care.  Among many other things, it also expands the categories of people who would be entitled to ask for accountings from agents and provides for awards of attorney’s fees against agents in the event they violate the statute.

 Whether you’re a lawyer or not, you need to know what a power of attorney is.  The odds are, in this time of longer lives and Alzheimer’s disease or other forms of dementia, that either you’ll be called to sign one as part of your estate plan or to act under one as an agent, or one of your family members will be in that situation.

When you sign a power of attorney, you’re authorizing another person to act in your place and on your behalf.  That person is the agent under the power of attorney, sometimes also called your “attorney-in-fact.” 

Historically, powers of attorney became invalid after the principal, that is, the person signing the power of attorney, became incapacitated.  So someone who had signed a power of attorney enabling, say, an adult child to handle his financial affairs and then became unable to do so because of dementia (for example) would then have to become the subject of a court proceeding so that a guardian could be appointed to handle his affairs. 

Court proceedings cost money and are not generally pleasant, including for someone who’s no longer capable of handling his own business but is still quite capable of understanding that other people are taking him to court to have him declared incompetent.  Durable powers of attorney solve this problem by remaining valid after the principal’s disability, so no court proceeding is required.  They aren’t a panacea, though.  With no supervision by a court or anyone else, they’re subject to abuse by those acting under them.  So choose your agent wisely, and have a full and frank discussion with that person about what you want and expect from him or her before you make your arrangements.  Think about talking to other family members, too, who may get their noses out of joint if and when they learn of your choice.

If you’re asked to act under a power of attorney, know that it’s a huge responsibility and a lot of work.  Even if you’re totally honest, expect that you’ll be subject to suspicion by relatives, family friends, acquaintances, neighbors, and service providers.  You can mitigate this to some extent by being transparent, at least with family members.  Sure, the law may not require you to open your relative’s books to the rest of the family.  Just because something’s not required, though, doesn’t mean it’s not a good idea.  Sunshine really is the best disinfectant.

I’ve written a number of articles on powers of attorney and on how lawyers can represent impaired clients and their agents under powers of attorney.

“The Perilous World of POA Agents,” 96 Ill Bar J 398 (August 2008)

“Stepping up the fight against elder abuse,” 96 Ill Bar J 339 (July 2008)

“Cashing in on home sweet home,” 96 Ill Bar J 179 (April 2008)

“Of Principals and POAs:  Protecting the Elderly from Themselves,” 95 Ill Bar J 580 (November 2007)

“Help Your Client Choose the Right Advance Directive,” 93 Ill Bar J 284 (June 2005)

“The Challenge of Representing Mentally Impaired Clients,” 92 Ill Bar J 518 (October 2004)

Several contemporary writers have dealt with dementia and its effects on the victim and family members by combining sensitivity with humor:

Jonathan Franzen, “The Corrections.”

Marina Lewycka, “A Short History of Tractors in Ukrainian.”

Mark Haddon, “A Spot of Bother.”

Professor Gerry W. Beyer of the Texas Tech University School of Law blogs about powers of attorney and other probate law issues at the Wills, Trusts, and Estates Prof Blog.  I’ve interviewed Professor Beyer and quoted him a number of times in my articles.  His blog provides information, insight and ideas about all kinds of different probate angles.  Do check it out!

July 23, 2010

Not your grandma’s YA

Filed under: Books and writing,fiction,Law,reading,YA — Helen Gunnarsson @ 9:46 am
Tags: , , ,

21st century young adult (YA) literature is not your mom’s or grandma’s YA, though the classics of their eras remain great.  Today’s YA novel routinely deals with topics such as sex, drugs, alcoholism, bullying and other forms of abuse, depression, and eating disorders.  YA dialogue is typically realistic, which includes an extraordinary number of vulgar expressions on the pages of many YA novels.  You don’t have to like it–I certainly don’t–but it IS the way lots of kids talk.

The recently published “Will Grayson, Will Grayson,” by John Green and David Levithan, is not only one of the best YA novels I’ve ever read but one of the best books, period.  The authors wrote the novel in alternating chapters, each writing from the point of view of one of the two main protagonists, each of whom is named Will Grayson.  One WG is straight, the other gay.  Straight WG’s best friend is a gay classmate, Tiny Cooper, who writes, directs, and produces a musical that starts out being about himself and ends up, like “WG, WG” itself, as a wonderful story of love and friendship.

The change in YA lit mirrors an evolution in society, which, in turn, leads to evolution in the law.  Fifty years ago in this country, a book such as “WG, WG,” with principal characters who are gay, frank depictions of teens coming to terms with their sexuality, and LOTS of vulgar language, would have been kept behind the desk in my hometown library if the library even purchased it at all.  Today, it’s reviewed and praised on literary programs around the world, including a discussion with New Zealand children’s writer Kate de Goldi on the April 17 edition of Radio New Zealand’s “Saturday Morning With Kim Hill,” and I’d guess and hope it’s a serious contender for a National Book Award and/or a Pulitzer Prize.  And less than fifty years ago, homosexuality was still considered a psychological disorder.  Not only has the American Psychiatric Association removed it from its Diagnostic and Statistical Manual of Mental Disorders (DSM), but many states, including Illinois, have enacted laws prohibiting discrimination against people based on their sexual orientation, and same-sex marriage is legal in a few states and many countries.  In fact, Iceland’s prime minister recently wed her partner under that country’s new marriage law, apparently amid no hoopla and not even any blinking on the part of Icelanders.

Please run, do not walk, to your nearest library or bookstore and get “Will Grayson, Will Grayson” to read.  The book, incidentally, takes place in Chicago and its suburbs; straight WG goes to Evanston Township High School, gay WG goes to Naperville.

July 10, 2010

False confessions and false perceptions

Today’s Chicago Tribune has an insightful article by Lisa Black and Steve Mills, “What causes people to give false confessions?”   Black and Mills describe Kevin Fox’s testimony on how law enforcement authorities elicited a false confession from him that he killed his small daughter, Riley, and quote others who wonder whether others held or convicted of similar crimes likewise gave false confessions.

The article reports that some critics believe that techniques of interrogating suspects are based on faulty assumptions of behavior.  “Investigators are taught how to base their questions and method of interrogation on a suspect’s verbal and non-verbal cues and mood.”  The authors quote Rob Warden of Northwestern University’s Center on Wrongful Convictions from  his “True Stories of False Confessions,” a book he edited with colleague Steven Drizin, as follows:  “Either you’re crying too much or you’re not crying enough. Both touch off suspicion. You can’t win either way.”

Warden’s quote reminded me of Joan Didion’s memoir, “The Year of Magical Thinking,” about the horrendous year she spent in the wake of her husband’s sudden death from a heart attack while their only daughter, Quintana, was in a coma induced as part of treatment for a raging infection.  (Quintana died shortly after Didion completed her book.) 

As Robert Pinsky explains so well in his review in The New York Times, Didion describes what happened and how she felt, employing language that’s as accurate as she could possibly make it, but, at the same time, spare and devoid of gratuitous or showy adjectives.  Through its understatement, her narrative has a far greater impact on the reader than would one with more colorful language.  So even though her whole book is telling what happened, she’s really showing, following the writer’s maxim “Show, don’t tell” to great effect.

Didion begins the book by describing her husband’s death at home, in the middle of a conversation, her disbelief, and her trip to the hospital.  In shock, she remembers a hospital social worker telling a doctor in her presence that she’s “a pretty cool customer.”

Like the lawyers and psychologists working to exonerate those whom they believe have been coerced into providing false confessions, Didion criticizes those who assume that grief must necessarily be accompanied by certain manifestations and that, without those indicia, a survivor must not be too upset.  “Because the reality of death has not yet penetrated awareness, survivors can appear to be quite accepting of the loss.  Here, then, we had the ‘pretty cool customer’ effect.”

What’s your experience with reading people through their nonverbal actions and reactions?  Ever had your assumptions challenged?  Oscar Wilde said that only shallow people do NOT judge others by first impressions; have you ever thought you had someone figured out, only to discover that you’d got it wrong?

July 4, 2010

AmLit and CanLit

In honor of Independence Day, here are ten randomly selected novels or short story collections that, in my view, qualify as Great American Novels:

1) The Corrections, by Jonathan Franzen

2) The Bonfire of the Vanities, by Tom Wolfe

3) The Road to Wellville, by T.C. Boyle

4) Olive Kitteridge, by Elizabeth Strout (interrelated short stories)

5) The Great Gatsby, by F. Scott Fitzgerald (and his collected short stories)

6) The Grapes of Wrath, by John Steinbeck

7) Babbitt, by Sinclair Lewis (or Main Street, or Arrowsmith, or Elmer Gantry)

8) Collected stories of John Cheever

9) The Absolutely True Diary of a Part-Time Indian, by Sherman Alexie

And I just can’t say the term “Great American Novel” without including

10) Huckleberry Finn, by Mark Twain

in the same breath.

I know, I left out a lot of great ones, either because I haven’t read them, because I have read them and I didn’t love them, because I arbitrarily decided to limit this list to ten, or because I read them but temporarily forgot about them.  So put your own lists in the comments!  Other lists of great novels from U.S. and other writers are here and here.

The Canadian counterpart to our Independence Day, Canada Day, was July 1, just a few days before our most important holiday.  Formerly known as Dominion Day, it commemorates the Canadian confederation of the provinces of New Brunswick and Nova Scotia with the Province of Canada, which, according to the Wikipedia entry, was at the same time divided into the provinces of Ontario and Quebec.

The Canadian Broadcasting Corporation has some great programs available on podcast; one I particularly enjoy is The Next Chapter, with host Shelagh Rogers, which focuses on Canadian literature.  Though the website doesn’t currently reflect it, the June 28, 2010 podcast featured, among other matters, an interview with Ryerson University professor Randy Boyagoda about a survey course on American literature he teaches in which his students compare American and Canadian literature.  Boyagoda noted that both countries share some significant characteristics, including division, as in native/settler differences, racial differences, landscape differences, and (more so in Canada’s case) language differences.  He said the two bodies of literature, however, are fundamentally different.  He and his students identified vitality, liveliness, argument, ambition, and immodesty (his words, not mine) as some characteristics that apply generally to American literature and not generally to Canadian fiction.  The U.S. and American literature emphasize the individual, whereas Canada and its literature focus on the collective, he and Rogers agreed. 

My American feathers ruffled when Rogers took a swipe at a Walt Whitman quote, and by implicit extension at the U.S., as “arrogant,” nor did I care for the adjective “immodest,” but the segment, which begins about 23 minutes into the podcast, was thought-provoking.  What are the differences between AmLit and CanLit, and why are there differences, given our geographic proximity and similarity of cultures?  Is our literature more “vital” than Canadian literature?  I haven’t read enough of the latter to be able to opine, but it’s certainly true that our literature is better known throughout the world than Canadian lit.

The Literary Review of Canada has a list of 100 great Canadian books that you can download in .pdf form, with an introduction by Margaret Atwood, who’s generally acknowledged as, along with Alice Munro, possibly the greatest living Canadian fiction writer and who has a couple of books on the list.   (I’ve enjoyed some of Atwood’s books and agree that she’s a fine writer, but the gratuitous snide remarks about the U.S. she seems to delight in making at every opportunity, at least on the podcast interviews I’ve listened to with her, are offensive to me and disincline me to praise her overmuch.  Can’t she say something positive now and then about the U.S., especially when so many individuals and institutions in our country have so generously praised and supported her talents and work?  Certainly, criticism is healthy, and the substance of some of her criticisms may have merit, but when she feels she must criticize, can’t she confine it to a policy or policies and not expand it to belittling our whole nation?) 

Here are some Canadian novels and a short story collection that I’ve enjoyed:

1) The Colony of Unrequited Dreams, by Wayne Johnston

2) Street of Riches, by Gabrielle Roy

3) Anne of Green Gables, by Lucy Maud Montgomery

4) Island, by Alistair MacLeod (short stories)

I have read more CanLit, but not more that I thought qualified as Great Canadian Novels.  Still, I’m planning on expanding my CanLit experience.  Two generally acknowledged great Canadian works on my perpetually unwieldy and growing reading list are Robertson Davies’ “The Deptford Trilogy” and Margaret Laurence’s “The Stone Angel.”  Also on my list are Elizabeth Hay’s “Late Nights On Air” and Don Hannah’s “Ragged Islands.”  I don’t know whether I’ll like them, of course, but what I heard about them on CBC podcasts intrigued me enough to purchase used copies of each.  Also, I’m currently giving Lisa Moore’s 2006 Commonwealth Writers’ Prize winner, “Alligator,” a second chance after it failed to draw me in some months ago.

Happy Independence Day to all of us Americans, and Happy (belated) Canada Day to all Canadians.  Which of your favorite Great American or Great Canadian Novels did I leave out, and what’s on your reading list this Fourth of July?

July 3, 2010

Frittering it away

The revelations over the last few days about the spending habits of former Illinois governor Rod Blagojevich, who’s currently on trial in Chicago on federal corruption charges, reminded me of how easy it is to fritter away money on a smaller scale, say, on lattes, salon services, meals out, entertainment, or a thousand other things.  It’s so easy for so many of us–as advertisers know so well–to justify buying a small, or not-so-small, luxury item or service by rationalizing “I deserve it,” “I should be nice to myself,” or “I don’t usually do this.”  Ouch!

Edith Wharton provided a devastating picture of a character frittering away her money and her life in her novel, “House of Mirth.”  Her heroine, Lily Bart, is as human as anyone, imperfect but certainly not bad-hearted.  Her only crime was being raised to do what women of her social time and class were supposed to do:  get enough of an education to attract and enamour a man of her class sufficiently to marry her and then be a beautiful, useless ornament to him.  Incidentally, Lily’s best friend, who tries as best he can to get her onto a better track, is a lawyer, Lawrence Selden.  SPOILER ALERT:  every time I read the novel, I wish that the two of them would manage to pair off and live happily ever after.

Two other novels I enjoyed also come to mind for pictures of characters who find it terribly difficult to curb their spendthrift habits.  The excesses of “Masters of the Universe” living in 1980s Manhattan that Tom Wolfe depicts in “The Bonfire of the Vanities” are unforgettable.  Closer to Wharton’s time,  “An Old-Fashioned Girl,” one of Louisa May Alcott’s less famous, but quite delightful, juvenile novels, depicts a poor relation showing a young woman from a wealthy family that’s suddenly fallen on hard times how to enjoy her life without the expensive fripperies she’d been brought up to regard as essential.

Barrie Davenport wrote a good essay, “How to Simplify When You Love Your Stuff,” on Leo Babauta’s Zen Habits blog a few days ago.  In it, she provides some good factors to consider when we’re thinking about buying something, some common rationalizations that should be red flags that we don’t need whatever it is and ought to keep the money in our pockets, and excellent arguments for diminishing the importance of stuff in our lives.

What other writers have portrayed spendthrifts in fiction?

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