Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Sunday, February 18, 2018

Article on Rational Patient Apathy

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-02-18/dd617d1d-65f1-461a-a109-f143350bd11e.pngBarbara A. Noah & René Reich-Graefe recently posted an Article entitled, Rational Patient Apathy, Elder Law Studies eJournal (2017). Provided below is an abstract of the Article:

Patients with serious or life-threatening illness are frequently asked to make complex, high stakes medical decisions. The impact of anxiety, low health literacy, asymmetric information and inadequate communication between patients and health care providers, family pressures, rational apathy by health care providers, cognitive biases of both patients and health care providers, as well as other factors, make it quite difficult for patients in these circumstances to process and comprehend the strategic uncertainty and resultant risks and benefits of, and alternatives to, whatever therapeutic or life-prolonging treatment physicians are offering. All of these factors render the classic goal of “informed consent” unachievable in all but the rarest of circumstances: The effort to discuss and evaluate strategic uncertainty, its rational reduction into risks and benefits, and alternatives of treatment for purposes of optimizing decisional outcomes will have genuine intrinsic value only for ultrarational patients (and physicians).

In addition to these alterable barriers to rational decision-making — i.e., barriers that can, in theory at least, be overcome by ultrarational patients (and physicians) with sufficient time and persistent inquiry — there is a second decision-making realm in which the added complexities of bounded rationality, clinical uncertainty and, in particular, of overall Knightian uncertainty provide insurmountable, unalterable barriers to confident rational decision-making. Within this more fundamental human realm of irreducible uncertainty, even ultrarational decision-makers can never confidently calculate a highest-utility treatment option. In order to better describe this secondary realm of unalterable barriers to rational patient choice, including its usually subversive effect on end-of-life decisional behavior, by both average, minimally-rational patients and ultrarational patients, we coin the term “rational patient apathy” (and, relatedly, “rational patient ignorance”).

Given that confronting the absolute uncertainty inherent in facing one’s mortality is cognitively, psychologically and emotionally daunting, and thus largely left unexplored and unpracticed by most patients for most of their (healthier) decisional lives, rational patient apathy at the sudden onset of a serious or life-threatening illness overwhelmingly defaults to negative decision-making, i.e., an affirmative choice not to make any (balanced) decision on the merits but rather to remain rationally ignorant of some or all aspects of the choice situation. In the context of this persistent patient avoidance of substantive decision-making, empirical evidence demonstrates frequent reversion to a quantity-over-quality approach, allowing health care providers to “do everything” until the continued medical treatment reaches the point of obvious medical or economic futility. As a result — and as a largely discounted trade-off of choosing to avoid decisional burdens through non-careful consideration (or no consideration at all) — the overwhelming result of rational patient apathy in end-of-life decision-making is an irrational calculation and decision unto itself. Not only does rational patient apathy negate the classic (and utopian) goal of informed consent, it also exerts tremendous costs — on patients, on loved ones, on health care providers and on society at-large — in terms of adverse health effects, avoidable suffering, constantly recurring decisional commitment costs, and the wasting of scarce economic resources.

February 18, 2018 in Articles, Death Event Planning, Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0)

Woman Who Was Mistakenly ‘BURIED ALIVE’ Tried to Fight ‘Her Way out of Sealed Coffin’ After Being Laid to Rest 11 Days Before

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-02-18/7ac9238d-8d54-4a59-bc6f-008c8ea98340.pngRosangela Almeida dos Santos suffered from cardiac arrest in late January and passed away after being rushed to the Hospital do Oeste in Barreiras, a city in eastern Brazil. Her family held a wake in her honor that night and her body was buried the following day in a concrete coffin. Soon after, locals started reporting screams, moans, and groans coming from the tomb. Natalina Silva, a local resident who heard noises coming from the supposedly deceased Santos stated: “When I got there right in front of the tomb, I heard banging from inside it. I thought the kids who play around the cemetery were playing a joke on me. Then I heard her groan twice, and after those two groans she stopped.” Eleven days after her burial, family members attempted to save Santos. When they managed to reach the coffin, they noticed the nails surrounding the lid had been pushed outward and there was blood and scratches inside. The family reported the incident to the police and a spokesman from the hospital said they will “provide all necessary information requested from them to the family and authorities.”

See Matt Roper, Woman Who Was Mistakenly ‘BURIED ALIVE’ Tried to Fight ‘Her Way out of Sealed Coffin’ After Being Laid to Rest 11 Days Before, DailyMail.com, February 16, 2018.

Special thanks to Molly Neace for bringing this article to my attention.


February 18, 2018 in Current Events, Death Event Planning, Estate Planning - Generally | Permalink | Comments (0)

Institute for Law Teaching and Learning Conferences

Institute of Law TeachingThe Institute for Law Teaching and Learning is hosting two conferences in the near future.   

First, they are hosting a one-day conference on April 28, 2018 at Texas A&M Law targeting adjunct professors and new law professors.  Though truth be told, the content may be a nice refresher for anyone.  You can find the conference announcement / information here:  http://lawteaching.org/wp-content/uploads/2018/02/conference-advertisement-3.pdf.

Second, their summer conference will be at Gonzaga Law, June 18-20, 2018 and will focus on the use of technology in the classroom.  We're currently accepting proposals for that conference (and the deadline has been extended to March 2).  More info here:  http://lawteaching.org/wp-content/uploads/2015/11/Call-for-Proposals-Gonzaga-Summer-2018-1.pdf.

February 18, 2018 in Conferences & CLE | Permalink | Comments (0)

Saturday, February 17, 2018

CLE on Drafting Effective Wills and Trusts

0000000 CLEThe National Business Institute is holding a conference entitled, Drafting Effective Wills and Trusts, which will take place on  on Tuesday, February 20, 2018, at the Wyndham Garden Greensboro in Greensboro, NC. Provided below is a description of the event:

Program Description

Help Your Clients Meet Their Estate Planning Needs

Do you have a clear understanding of the basic tax issues, medical decisions, and planning documents that can complicate the estate planning and probate processes? Are you prepared to answer your clients' tough questions about planning for final wishes? Attend this seminar to gain insight into the fundamentals of preparing estate planning documents, including wills, trusts, and ancillary documents. Discover the pros and cons of using various types of documents, as well as the tax ramifications involved. Register today!

  • Choose the planning document that is best suited for your client.
  • Provide protection for minors, incompetent persons, and beneficiaries with special needs.
  • Learn how and when to use revocable living trust, pour-over wills, and durable powers of attorney.
  • Reduce your clients' future tax burdens.
  • Use a living will or durable power of attorney for health care to help the client control end-of-life medical decisions.
  • Handle ethical issues that arise in estate planning, such as competency of the client and conflicts of interest.

Who Should Attend

This basic level seminar will provide fundamentals of drafting wills and trusts for:

  • Attorneys
  • Paralegals
  • Trust Officers
  • Accountants
  • Tax Professionals

Course Content

  1. Fundamental Principles of Will Drafting
  2. Using Living Trusts and Powers of Attorney as Estate Planning Tools
  3. Basic Tax Considerations - What You Need to Know in Order to Choose the Appropriate Plan
  4. Ethics and Estate Planning
  5. Planning Methods to Control Medical Treatment

Continuing Education Credit

Continuing Legal Education – CLE: 6.00 *

Financial Planners – Financial Planners: 7.00

International Association for Continuing Education Training – IACET: 0.60

National Association of Legal Assistants, Inc. – NALA: 6.00 *

National Association of State Boards of Accountancy – CPE for Accountants/NASBA: 7.00 *

National Federation of Paralegal Associations, Inc. – NFPA

Professional Achievement in Continuing Education – PACE: 7.00 *

* denotes specialty credits

February 17, 2018 in Conferences & CLE, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Article on The Fight for Personhood, Legal Capacity, and Equal Recognition Under Law for People with Disabilities in Israel and Beyond

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-02-17/4a81ca95-fd30-4ca1-b4b0-5da476d5443a.pngArlene S. Kanter & Yotam Tolub recently posted an Article entitled, The Fight for Personhood, Legal Capacity, and Equal Recognition Under Law for People with Disabilities in Israel and Beyond, Elder Law Studies eJournal (2018). Provided below is an abstract of the Article:

In 2016, Israel became one of the first countries in the world to introduce supported decision-making as an alternative to guardianship in a nationwide law. The Israeli law was enacted as an amendment to Israel’s Guardianship and Legal Capacity Law. This law provides a model to other countries that are considering abolishing or revising their guardianship laws in light of the Convention on the Rights of People with Disabilities (CRPD). The United Nations adopted the CRPD in 2006. Since then, 175 countries have ratified it, including Israel, but not the United States. Article 12 of the CRPD specifically recognizes the right to legal capacity for all people with disabilities, as well as the right to support that some people with disabilities may need in order to exercise their right to legal capacity and equal recognition under law.

The purpose of this Article is to examine the extent to which guardianship is compatible with the fundamental values of international human rights law, especially the CRPD; and if not, to consider alternatives to guardianship that comply with human rights law. Part I of this Article reviews the historical and legal background of the development of guardianship laws, including arguments against guardianship from different points of view. Part II of the Article discusses the right to equal recognition under law prior to the CRPD, followed by Part III of the Article, which discusses the background and language of Article 12 of the CRPD. Part IV of this Article discusses the Israeli Legal Capacity and Guardianship Law of 1962 and its recent amendment, which reflects the movement in Israel to include supported decision-making as an alternative to the substituted decision-making regime included in Israel’s prior guardianship law. This Part also discusses recent Israeli Supreme Court decisions, which perpetuate the unwarranted denial of legal capacity for people with disabilities despite the Court’s human rights rhetoric. Part V of the Article discusses the background, language, and purpose of Israel’s new amendment to its Legal Capacity and Guardianship Law. Although Israel is not the first country to authorize supported decision-making as a matter of law, it is one of the first countries to adopt a nationwide law that specifically includes supported decision-making as a legal alternative to guardianship. Part VI of the Article discusses developments in other countries around the world as they strive to conform their domestic guardianship laws to the CRPD. This Article concludes with recommendations for other countries that are considering enacting domestic laws that protect the right to legal personhood and legal capacity of all people with disabilities in full compliance with Article 12 of the CRPD.

February 17, 2018 in Articles, Estate Planning - Generally, Guardianship | Permalink | Comments (0)

Friday, February 16, 2018

Suicides in US Rose 10% After Robin Williams' Death, Study Finds

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-02-17/95780c0c-7458-488b-99cb-e0f7a6c3c1e8.pngDirectly after Robin Williams took his own life in 2014, there was a marked increase in the number of suicides in the United States. In the months following Williams’s death, there was a nearly 10% jump in the domestic suicide rate. This so-called “celebrity-suicide effect” has been documented in prior research. David S. Fink, the author of a study detailing this particular incident and its after-effects, claims that this overall pattern of copycat suicide and his research represent the “first study to examine the consequences of a celebrity suicide in the digital era.” Though most are familiar with the expression “correlation does not imply causation,” Fink believes the evidence is strong enough to suggest a connection.

While the phenomenon is certainly interesting, some experts are not convinced that it has any relevant scientific importance. John Ayers, a computational epidemiologist working at San Diego State University, said the “problem with this study is: ‘So what?’” While Ayers acknowledges the scientific rigor and validity of the study, he notes there is really “no urgency there.” Williams took his life in 2014. Those who were suffering and used his death as the impetus for their own are already dead. Ayers believes it is important to “extend this research beyond living in the past to the present.” The end-goal would be “to develop strategies where we can have these types of insights while they're happening so we can respond.”

See Susan Scutti, Suicides in US Rose 10% After Robin Williams' Death, Study Finds, CNN, February 8, 2018.

Special thanks to Adam J. Hirsch, Professor of Law at the University of San Diego School of Law, for bringing this article to my attention.

February 16, 2018 in Estate Planning - Generally | Permalink | Comments (0)

John Mahoney, Who Played Cranky Dad on ‘Frasier,’ Dies at 77

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-02-16/f7565de5-e100-4417-981d-b2d89789f8ce.pngJohn Mahoney, popularly known for his role as the gruff-but-lovable Martin Crane on the television series Frasier, died last week at the age of 77. Paul Martino, Mahoney’s manager for over 30 years, said the actor passed away after a brief stay in the hospital. The cause of death was not provided. Kelsey Grammer, who played Frasier Crane, Martin’s well-to-do and often arrogant son, said of Mahoney’s death: “He was my father. I loved him.”

Mahoney was born in 1940 after his pregnant mother’s evacuation to Blackpool, England. He later followed a sister to Chicago, where he fell in love with the city. In a 2015 interview, Mahoney highlighted his favorite attributes of the city he loved: “The lake, the skyline, the museums, the symphony, the lyric opera…my favorite place in the world.”

See Lynn Elber, John Mahoney, Who Played Cranky Dad on ‘Frasier,’ Dies at 77, USA Today, February 5, 2017.

February 16, 2018 in Current Events, Estate Planning - Generally, Television | Permalink | Comments (0)

Financial Secrecy Index

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-02-15/a269029a-32f0-41d3-98e0-ac8156f1f9f9.pngThe Financial Secrecy Index lists various jurisdictions according to the scale of their offshore financial activities and the relative secrecy associated with those transactions. Touted as a politically neutral ranking system, the end-goal of the index is to shed light on tax havens around the world. Though incredibly difficult to find reliable figures, it is estimated that approximately $20 to $30 trillion dollars of private financial wealth is hidden in tax shelters around the world. The countries harboring a vast majority of these funds are not tiny, palm-fringed islands as might be expected, but some of the world’s wealthiest and largest nations.  

See Financial Secrecy Index, Tax Justice Network, 2018.

Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

February 16, 2018 in Estate Planning - Generally, Income Tax | Permalink | Comments (0)

American Horror Story' Murder House Owners Have Video Proof of Fan Nightmares

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-02-14/37b44eea-a05a-4732-8991-d8e210dacc96.pngAngela Oakenfold and Ernst Von Schwarz, the current owners of the Murder House featured on "American Horror Story (AHS)," are suing the prior owner for failing to warn them of the home's on-air history. The pair claim the house has has become a "macabre tourist attraction" enticing fans to trespass on to the property in an effort to see inside. A couple of AHS fans were so desperate to catch a peak of the interior of the house that they occupied a nearby dumpster hoping to catch a glimpse when the trash truck lifted the bin to empty its contents. Even when fans are not trespassing, they are lined up outside the home behind a chain link fence. While the frustrated duo say their impatience is not with AHS fans in general, they feel as though some go too far and make them feel unsafe.

See American Horror Story' Murder House Owners Have Video Proof of Fan Nightmares, TMZ, February 14, 2018.


February 16, 2018 in Estate Planning - Generally, Television | Permalink | Comments (0)

Thursday, February 15, 2018

Forbes' First List of Cryptocurrency's Richest: Meet the Secretive Freaks, Geeks and Visionaries Minting Billions from Bitcoin Mania

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-02-14/fc15fd77-414b-4400-907a-9ba1033b9fd2.pngMatthew Mellon, a banking heir who saw his $2 million investment in XRP, Ripple's cryptocurrency, explode into a billion dollar fortune, learned first-hand the dangers associated with earning perceived easy money. The morning following a night of festivities at his Los Angles party pad, the 54-year-old says he discovered four individuals rooting around his home. Mellon did not file a report with police and guesses the unwanted intruders were after his XRP. Though they stole two cellphones and four laptops, they were not able to loot Mellon's cryto-fortune, which is carefully hidden in various locations. While not all of the individuals comprising Forbes's list of the most crytpo-affluent have such dramatic tales to tell, the incident serves to underscore the unique nature of both the crytocurrency boom and its beneficiaries. 

See Jeff Kauflin, Forbes' First List of Cryptocurrency's Richest: Meet the Secretive Freaks, Geeks and Visionaries Minting Billions from Bitcoin Mania, Forbes, February 7, 2018.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM)) for bringing this article to my attention.

February 15, 2018 in Current Events, Estate Planning - Generally, Technology | Permalink | Comments (0)