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Guardianship and End of Life Decisionmaking

A few days ago an interesting case came out of Hennepin county.  See the article link: Guardianship and End of Life Case.  It involves a guardian who wanted to terminate life support from an incapacitated person.

Guardianship in Minnesota, What it Is

A guardianship involves two parties.  The ward, who is the protected person and the guardian who is the court-assigned protector of the ward.

The guardian is a “guardian of the person”.  In other words, they have the authority to make decisions about the ward’s life.  The guardian is to use this authority in the least restrictive way possible to the ward.  The guardian is entitled to make some health care decisions for the ward.

Guardianship and Medical Treatment

In the Hennepin County case, the judge ruled on the narrow issue of whether a guardian has the power to terminate life support of the ward.  The court ruled that a guardian does not have such a power unless the Minnesota legislature specifically grants it to him or her.

This is interesting for several reasons.  Generally probate court judges can make this decision.  Also, guardians can make many health care decisions for the ward.  However, there are some situations, like this one, in which the guardian may not act.

The Take Home Message: Let Others Know Your Wishes

It can be difficult to predict what a court will do in situations like this.  If you are concerned about having your wishes honored, you should prepare all the necessary documents.  You will also want to let your family members and other people close to you know what your wishes are and where to find the documents.

In this case, the ward may have been well served by talking with his guardian and arranging a Health Care Directive.  He could have stated his end of life wishes and made sure they were honored.

Disclaimer

All of the materials available in this blog is for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain legal advice with respect to any particular issue or problem. Use of and access to this blog does not create an attorney-client relationship between Majeski Law, LLC and anyone who uses it.

Picking someone you “Trust” for Estate Planning: The Sad Cases of Elder Exploitation

Elder Financial Exploitation: Undermining Estate Planning

Ward Knutson was entrusted to help his mother with her estate planning needs.  Instead, Mr. Knutson allegedly stole over $800,000 from his mother, Doris Knutson, 87, for his personal benefit.  This reportedly included supporting his gambling habits, phone sex,  and luxury cruises.  Mr. Knutson was recently convicted in Hennepin County District Court and sentenced to pay over $100,000 in restitution and to server 20 years of probation.  Mr. Knutson only avoided a prison sentence because the judge wanted to give him the opportunity to pay his mother back.

The stories are too familiar.  They seem to pop up almost daily.  An often vulnerable elderly person selects a family member who they trust to administer their financial or personal affairs.  These cases highlight the importance of both properly drafting legal documents and obtaining oversight regarding how they are administered.  But perhaps most important of all, it underscores the importance of selecting someone you trust and who will work with your best interests in mind.

Estate Planning Documents and the Persons You Appoint

The trust issue is especially relevant if you’re considering creating any of the following:

  • Will (you’ll appoint a personal representative)

  • Trust instrument (you’ll appoint a trustee)

  • Financial power of attorney (you’ll appoint an attorney-in-fact)

  • Health care directive (you’ll appoint a health care agent)

In all of these estate planning situations you may be appointing someone to handle your affairs.  Whether as a primary fiduciary or as an alternate, it’s critical to pick someone you can trust.  Don’t take the decision lightly. Consult family and friends you trust, financial professionals, and an attorney.  These individuals will help you both personally and legally examine all of the relevant factors to your situation.  This will allow you to make the most informed choice possible for how you manage your affairs.

Disclaimer

All of the materials available in this blog is for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain legal advice with respect to any particular issue or problem. Use of and access to this blog does not create an attorney-client relationship between Majeski Law, LLC and anyone who uses it.

No Will, but a Way … Same-sex partner gets inheritance

This November a voter ballot will be held in Minnesota to determine whether to pass a State Constitutional amendment that defines marriage as only between a man and a woman. Amidst this backdrop, Thomas Proehl married James Morrison in 2008 in California.  While living in Minnesota, Mr. Proehl died in 2011 without a will.  The final judicial order can be found here.

In Minnesota, if there is no will or other estate planning devices, a spouse is normally first in line to take property.  However in Minnesota, which has adopted the Defense of Marriage Act (DOMA), same-sex marriages are not legally recognized.

The Case: Mr. Morrison “Wins” without a will

Hennepin County District Court Referee George Borer ruled that Minnesota’s DOMA law does not prohibit same-sex partners the right to inherit.  So, Mr. Morrison “won” in the sense that he did finally get property rights.

However, he spent over a year muddled in the court system, wasting his time and money.  His personal business was aired out publicly, whether he liked it or not.  And perhaps most importantly, he had to go through all of this in an uncontested case.  In other words, no one was opposing Mr. Morrison’s claim on the property and he still had to endure significant legal roadblocks.

The purpose of this piece isn’t to make any kind of statement one way or another regarding same-sex marriages.  Instead, this is just another example of unexpected problems that can arise when individuals don’t make an adequate estate plan. 

Whether it include a will, the proper trust instruments, a health care directive, a power of attorney, or any other transfer on death documents, a properly drafted estate plan is critical to help your successors avoid these kinds of transfer problems.

Disclaimer

All of the materials available in this blog is for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain legal advice with respect to any particular issue or problem. Use of and access to this blog does not create an attorney-client relationship between Majeski Law, LLC and anyone who uses it.

Minnesota Trust Account Dispute: Three Little Words and 4.3 Million Dollars

The Supreme Court of Minnesota, the highest court in the state, recently delivered its opinion* on an eleven year-long dispute.  On one side of the legal dispute was the deceased wife’s widowed husband who served as the personal representative of his wife’s estate.  On the other side was the trustee of a revocable trust account the wife had set up before she died.

The Trust Account: $4.3 Million

The major issue before the court was whether language in the trust compelled the trustee to pay off the wife’s legal debts.  The trust contained over $9 million in assets at the time of the wife’s death.  Her debts totaled over $4.3 million.  Over the eleven year process, the issue bounced around courts of several states.  The parties were unsuccessful in reaching any settlement agreement.

The Trust Account: “My legal debts”

The trust contained a provision that read that it should be used to “pay … my legal debts.”  The court conducted an extensive analysis of “my legal debts”.  This included how the phrase tends to be used in wills and trusts.  The court concluded that the trust language did not compel payment of the debts from the account.  The husband lost and could not use the trust assets.

This case demonstrates, among other things, the importance of even small details in drafting estate-planning documents.  It also shows  how important it is to make every effort to make sure one’s wishes are clear and the language used in estate planning documents accurately reflects those wishes.

 Disclaimer

All of the materials available in this blog is for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain legal advice with respect to any particular issue or problem. Use of and access to this blog does not create an attorney-client relationship between Majeski Law, LLC and anyone who uses it.

* – See “In the Matter of: The Pamela Andreas Stisser Grantor Trust Under Second Amendment and Restatement of Trust Agreement dated June 6th, 2001” – Filed August 1st, 2012, A101646.  Link to the text of the case can be found here.

Dying Intestate in Minnesota: The choices you lose by not having a will

July 27, 2012 by  
Filed under Estate Planning

What Intestacy Means

Dying intestate means dying without a valid will.  If you die  without a will and without any other instruments to dispose of your property, the State of Minnesota will decide for you how to distribute your property.

What happens to my property if I die intestate in Minnesota? 

State statutes will specifically determine who gets your property.  Sometimes, this will coincidentally be the same people you would have given property to anyway.  Often times, however, it will not be.  According to Minnesota statute, the surviving spouse may get the entire estate or at least 1/2 of the estate, depending on circumstances.  

After the spouse, the state will maintains a list of relatives who will take the estate in the following order:

  1. To the deceased’s descendants (children first, then grandchildren and further down the list if the children died already)
  2. Parents of the deceased if they are still alive
  3. To descendants of the deceased’s parents (brothers and sisters, half-brothers and sisters, etc.)
  4. And on down the list to more distant relations

A will is important if you want to give a certain piece of personal property to someone, like a family heirloom.  A will is also useful if you want to specifically disinherit someone (so they don’t get property when they otherwise would if you died intestate).

One myth to address: There are some who believe that the state keeps all of your money if you die intestate.  This is generally false.  Unless you have absolutely no heirs (no children, grandchildren, spouse, brothers, sisters, nieces, nephews, etc.), the state doesn’t keep your money.

Other Considerations: Minor Children and Disinheriting Relatives

In addition to losing the right to decide who gets your property, anyone who dies intestate loses the ability to decide who will raise their minor children as well as who will oversee the distribution of his or her estate.  The former point may be especially important if the deceased was the last living parent or if both parents die simultaneously and both don’t have wills.

Regardless of how you set it up, a will is often an important part of any estate plan.

Disclaimer

All of the materials available in this blog is for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain legal advice with respect to any particular issue or problem. Use of and access to this blog does not create an attorney-client relationship between Majeski Law, LLC and anyone who uses it.

 

About

Hello. I'm Matt Majeski. I'm a divorce lawyer and family law attorney. In 2009, I founded Majeski Law, LLC. Equipped with a degree in Law & Psychology, I decided to focus my law practice solely on divorce and family law matters. Although I serve individuals throughout the state of Minnesota, most of my clients live in Ramsey, Dakota, Washington, Anoka, and Chisago county. I've been Co-Chair of the Family Law Section of the Ramsey County Bar Association since 2014. In addition, I've been an active member of the Minnesota State, Ramsey County, and Washington County Bar Association since 2009, and the Association of Family and Conciliation Courts since 2012. Besides volunteering at the Washington County Legal Advice Clinic, through the Volunteer Lawyers Network (in Minneapolis, Minnesota) I've also been able to serve a number of individuals pro bono in several civil matters. When I'm not practicing law, my two daughters keep me busy running around, stepping on Legos, and playing computer games. In addition, those who know me on a personal level, know I have a deep appreciation for Star Wars and Tootsie-Rolls, and that I humor my wife's love for, The Packers.