Law and Conversation

April 15, 2011

More on Wallis Simpson, Duchess of Windsor–and DRA 2005 and Medicaid, too

I recently posted about the sad last days of the Duchess of Windsor, Wallis Warfield Simpson, still a controversial figure 75 years after King Edward VIII of England abdicated his throne to marry her.  Today’s edition of Arts and Letters Daily provides a link to a review of a new biography by Hugo Vickers, “Where’s Wallis?  Behind Closed Doors:  The Tragic, Untold Story of the Duchess of Windsor.”  Having read Caroline Blackwood‘s “The Last of the Duchess” with horrified fascination, I’m putting Vickers’s book on my list.

Even the duchess’s vast resources couldn’t save her from dementia, nor is it even clear to what extent they might have alleviated the unhappiness of her last years.  And the duchess apparently didn’t put her affairs in particularly good order before the disease overtook her. Dementia and the cost of health care are huge topics in the news these days, and, accordingly, how best to advise clients on their estate plans is of great concern to lawyers.  I have an article in the current issue (April 2011) of the Illinois Bar Journal on the effect of the Deficit Reduction Act of 2005 on Illinois’s new Medicaid regulations.  I was pleased to get to reference “A Penny Saved Can Be a Penalty Earned:  Nursing Homes, Medicaid Planning, the Deficit Reduction Act of 2005, and the Problem of Transferring Assets,” a scholarly but very readable article by Catherine M. Reif, a recent graduate of Northern Illinois University’s College of Law, which appeared in vol. 34, No. 2 of New York University’s Review of Law and Social Change.  Though federal (or state) regulations do not exactly make for fun reading, Cathy’s article drew me in right away through her use of story.  Using as examples four hypothetical elderly women, all 72, all of whom earned the same amount of money and own the same sort of modest home, but each of whom made different lifestyle choices, Cathy explains the law’s disparate effect and makes even this complex subject understandable.

Readers, can you think of any examples of story helping you to understand a complex topic?

February 23, 2011

Passion and probate law: 3 biographies

Earlier this week I recommended Sally Bedell Smith’s “Reflected Glory:  The Life of Pamela Churchill Harriman,” an especially good biography for those who love both probate law and good stories.

Here are three more biographies sure to fascinate probate lawyers and anyone who loves stories filled with passion and intrigue:

1) “Little Gloria…Happy At Last,” by Barbara Goldsmith.  A fine researcher and writer, Goldsmith tells the sad story of the 1934 court fight between Gloria Vanderbilt’s mother, Gloria Morgan Vanderbilt, and her aunt, Gertrude Vanderbilt Whitney, over custody of the child Gloria and control of her inheritance. Goldsmith also wrote “Johnson v. Johnson” and has written pieces for The Daily Beast on inherited wealth.

2) “The Last of the Duchess,” by Caroline Blackwood.  Not a biography in the strict sense, Blackwood’s book is, instead, the story of how Maitre Suzanne Blum, Wallis Warfield Spencer Simpson Windsor’s French lawyer, companion, and guardian in the last years of her life, thwarted Blackwood’s effort to carry out her assignment from the British Sunday Times to see the Duchess of Windsor and write an article about her. Blackwood never did get to see the duchess, who was evidently bedridden and suffering from dementia in her opulent Paris home.  Though Blum’s actions are susceptible of more than one interpretation, Blackwood leaves no doubt of her view of Blum:  “a malignant old spider” who kept the duchess “under despotic surveillance” and refused to allow not only Blackwood but even the duchess’s close friends to see her. For a comparison of two other books about the duchess, see Peter Kurth’s article here. (Blackwood herself lived quite an interesting life, as Nancy Schoenberger recounts in “Dangerous Muse: The Life of Lady Caroline Blackwood.” Blackwood’s youngest daughter, Ivana Lowell, also wrote about her mother in her recently published memoir, “Why Not Say What Happened?”)

3) “Lives Like Loaded Guns: Emily Dickinson and her Family’s Feuds,” by Lyndall Gordon.  Among other matters, Gordon describes how a passionate and adulterous affair between the poet’s brother, Austin Dickinson, a solid Amherst lawyer, and Mabel Loomis Todd, who ended up editing Emily’s works after her death, split the Dickinson family, reverberated in the courts decades after Emily’s death, and still influences Dickinson scholarship.  You can listen to a great interview Ramona Koval did with Gordon on the Australian Broadcasting Corporation’s “The Book Show” here.

Professor Gerry W. Beyer of Texas Tech University School of Law blogs about probate law in the popular and academic press at the Wills, Trusts & Estates Prof Blog.  As I’ve previously noted, he’s also been kind enough to provide me with great commentary for a number of articles for the Illinois Bar Journal.  If you practice or have any interest in probate law, check out his blog, which received a well-deserved spot on the ABA Journal Blawg 100 for 2010, and follow him on Twitter for timely updates.

What biographies do you recommend?

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!

May 14, 2009

Alzheimer’s documentaries on HBO

Filed under: dementia — Helen Gunnarsson @ 11:24 am
Tags: , , ,

Mark Palmer, a lawyer in Champaign, IL (see ) , notes that the films of The Alzheimer’s Project are available to watch online for free on HBO’s website.  They’re also available for downloading (also free) via the iTunes store; go to the “Podcasts” category, find HBO, and download away.

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