As an estate planner and a lawyer, it is important to remember that when creating an estate plan, familial relations may turn negative. It becomes crucial for estate planners to ensure that their instructions are complete, in order to protect themselves in the case of a family fight.
Often, in the process of a married couple jointly retaining a lawyer to prepare their wills, “mirror wills” are prepared. Mirror wills typically provide for all estate assets to pass to the surviving spouse.
An issue arises in the case of a lawyer who prepares mirror wills and one of the spouses decides to make a change, adversely affecting the other spouse. What are the lawyer’s ethical obligations?
Pursuant to the Rules of Professional Conduct, Rule 3.3-1 states that a lawyer has an ethical obligation to hold in confidence all information concerning their clients, and Rule 3.4-1 creates an ethical obligation to avoid conflicts of interest.
It is important, therefore, that when acting for a married couple, the lawyer outlines his or her ethical obligations, and specifically, if applicable, outlines that they are acting in a joint retainer. Rule 3.4-5 outlines the ethical obligations of a lawyer in the case of a joint retainer:
Before a lawyer acts in a matter or transaction for more than one client, the lawyer shall advise each of the clients that:
(a) the lawyer has been asked to act for both or all of them;
(b) no information received in connection with the matter from one client can be treated as confidential so far as any of the others are concerned; and
(c) if a conflict develops that cannot be resolved, the lawyer cannot continue to act for both or all of them and may have to withdraw completely.
While outlining the joint retainer rules to a client, it is important that the lawyer considers what they would do in the case of one of the spouses asking the lawyer to alter a mirror will. While the lawyer could refuse to draft a new will, the requesting spouse may be able to find another lawyer to do the will, and the lawyer will still have the issue of whether or not to tell the disadvantaged spouse. This may give rise to a conflict of interest.
The second Commentary to Rule 3.4-5 specifically contemplates and guides the lawyer acting for a married couple as to what should happen in this scenario. Simply put, any subsequent communication to change the will by one of the spouses would be “treated as a request for a new retainer and not as part of the joint retainer.” The lawyer would therefore have a duty to decline the new retainer unless the other spouse consented to the change.
The critical issue is that this possibility must be conveyed to the spouses at the outset of the joint retainer.
Thanks for reading,
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For 50 days, two-year old Israel Stinson occupied a hospital bed in California, where a ventilator forced air into his lungs, keeping oxygen flowing throughout his tiny body. Israel is brain dead, and has been since April 2, 2016. Any diagnosis of brain death is based on three criteria: i) absence of brainstem reflexes (e.g. pupil reaction to light, gag reflex); ii) coma (as evidenced by zero responsiveness); and iii) failure of an apnea test. In Israel’s case, such a clinical and definitive determination was made by no fewer than three different physicians at two different hospitals. Mechanical ventilation did not give Israel life, nor is it keeping him alive. It is merely replacing the function of his lungs, which can no longer function on their own. His heart continues to beat, not because he is alive, but because heart function is not entirely dependent on the brain. Brain death is death; the term simply describes how the death was determined.
California law allows a hospital to disconnect mechanical support in the event of brain death, however Israel’s family waged a legal battle in the United States District Court to block his hospital from doing just that. Court documents indicate that “Plaintiffs are Christians with firm religious beliefs that as long as the heart is beating, Israel is alive.” On May 13th, the court rejected the lawsuit to keep Israel on indefinite “life support” but upheld a temporary restraining order keeping the ventilator in place, thus allowing the family time to appeal. An appeal was filed with the 9th U.S. Circuit Court of Appeals, but that appeal was essentially rendered moot when this past weekend, the family had Israel transferred to another medical facility outside of the United States. Citing privacy, the family’s attorney would not disclose the name of the hospital or its location. Israel’s body remains on a ventilator.
Hard data on the frequency of brain death disputes is evasive, particularly since there is great disparity in media coverage from case to case. Some cases, like that of 13-year old Jahi McMath, have received enough media attention as to have firmly galvanized the public. Thaddeus Pope, a law professor at Mitchell Hamline School of Law, refers to this as the Jahi McMath shadow effect. In an interview last week, Pope stated, “It’s casting a shadow; it has had some impact. I don’t know how to quantify it, but based on my discussion with physicians at a number of hospitals, it does seem there’s an uptick.” Personal injury attorney Chris Dolan, for example, has worked on seven brain death disputes to date, including that of Jahi McMath. In Jahi’s case, the law was leveraged to allow her family to have their daughter transferred to New Jersey where her body remains on a ventilator, more than two years after being declared brain dead. This shift in public perception of the concept of brain death concerns Arthur Caplan, director of the Division of Medical Ethics at New York University School of Medicine:
“It becomes important for the medical field to be responsive to these cases. Not heartless or cruel, but nonetheless try to explain what the concept is, how it’s tested.”
Many doctors consider efforts to ventilate a dead body in the face of all medical evidence to be wrong and unethical. It is indeed telling that not a single hospital facility in the United States would agree to accept Israel’s body after the diagnosis of brain death.
Meanwhile, in a statement Sunday, Israel’s mother Jonee Fonseca declared, “Victory!”.
On Friday May 13th, 2016, U.S. District Judge Kimberly J. Mueller denied a family’s request to keep their brain dead toddler on supportive measures indefinitely. The judge did, however, grant a one-week extension to the order restraining Kaiser Permanente Roseville Medical Center (Kaiser Permanente) from taking the boy off a ventilator.
In early April, two-year-old Israel Stinson suffered an asthma attack, depriving his brain of oxygen for more than forty minutes. After a second attack, and after suffering a cardiac arrest, Israel was placed on a ventilator and declared brain dead. When Kaiser Permanente staff moved to take Israel off the ventilator in accordance with California Health and Safety Code § 1254.4(a), his parents filed an ex parte application with the court to block the staff from disconnecting mechanical support. Israel’s mother argued that it is on the basis of religious grounds, constitutional rights to privacy, and due process as his mother, that she is objecting to the removal of the ventilator. In a heartbreaking video posted recently by Life Legal Defense Foundation, Jonee Fonseca can be seen tickling her little boy and saying “Israel, you have to stop fooling everybody” and “I know you’re going to come out of this, baby.” And therein lies the second tragedy. In the days and weeks following Israel’s placement on a ventilator, the boy has been declared brain dead by no fewer than three physicians at Kaiser Permanente. According to the Uniform Determination of Death Act, brain death is defined by either: (i) irreversible cessation of circulatory and respiratory functions, or (ii) irreversible cessation of all functions of the entire brain, including the brain stem. There is no recovery from brain death. Arthur Caplan, head of the Division of Medical Ethics at New York University, and David Magnus, Professor in Medicine and Biomedical Ethics at Stanford University spoke bluntly about brain death in Time Magazine:
Concepts matter in medicine… Brain death is death. It has nothing to do with being in a coma. It does not refer to a permanent vegetative state. It does not refer to being severely brain damaged.
Caplan and Magnus would like to see the phrases “brain dead” and “life support” stricken from the conversations that take place between hospitals and families as i) the use of “brain dead” gives the impression that the person is not really dead and ii) “removing life-support” sounds a lot like termination of care for a living person. While acknowledging that a brain death diagnosis can be “a devastatingly hard thing to accept”, they argue strongly that such language confuses families and fundamentally lays the groundwork for cases such as this one, and that of Jahi McMath and Marlise Munoz, discussed in a previous blog.
Complicating matters is the assertion by one doctor that there may be hope for little Israel. In a court declaration, Dr. Paul Byrne, a pediatric neonatologist, stated that the toddler “may achieve even complete or nearly complete neurological recovery if he is given proper treatment soon”. Dr. Byrne is a former president of the Catholic Medical Association and current president of a faith-based group called Life Guardian Foundation. According to their website, Life Guardian Foundation is an organization dedicated to the belief that a brain death diagnosis is one promoted by physicians “for the sole purpose of organ transplantation and human medical experimentation”.
Israel’s parents will use the one week extension to take the case to the 9th Circuit U.S. Court of Appeals. They also intend to use the one week reprieve to continue their desperate search for a medical facility in New Jersey that might accommodate the family and agree to take over the boy’s “care”. New Jersey is one of only two states in the United States with a law allowing religious objection to a declaration of death on the basis of neurological criteria. Jahi McMath, for example, lies today in a bed in a New Jersey rental apartment with 24-hour nursing care, as she has for the past two years, while her parents await a ruling on their recent lawsuit to have her death certificate revoked.
Kaiser Permanente is complying with the order to leave Israel on a ventilator until Friday May 20th. A GoFundMe page set up by Fonseca has raised more than $15,300 towards the costs of Israel’s care and transfer.
Shocking news out of Garden City, New York last week. It is one of those incredible stories you hear that will either have you rolling on the floor clutching your gut to stave off the laughing-induced cramps, or shaking your head in disbelief at the state of the world today.
Now that my cramps have subsided…
In July 2005, Dawnell Batista filed for divorce from her husband of fifteen years, 49-year old Long Island surgeon, Dr. Richard Batista. The couple have three children, age eight to fourteen.
In 2001, after his wife had two prior failed kidney transplants, Batista donated one of his kidneys to her, thereby saving her life. Batista claims that his wife began having an extramarital affair a couple of years after the transplant.
Instead of going after their million dollar home in Massappequa, Batista now wants his estranged wife to return the donated kidney, although he says he’ll settle for $1.5 million in compensation. Divorce lawyers say a donated organ is not a marital asset to be divided. Further, in the U.S., organs cannot be bought or sold.
Speaking to reporters last week, Batista said, "There is no deeper pain that you can ever express than betrayal from somebody who you loved and devoted your life to." Perhaps, but I’m guessing that having a donated kidney removed might come pretty close.
Hmmmm. I’m suddenly having second thoughts about asking for those implants…
Jennifer Hartman, Guest Blogger
Retired professor Fred Westfield was 12 years old when he last saw his uncle, Walter Westfeld, a renowned art collector. Two days later came Kristallnacht, or the Night of Broken Glass, on November 9, 1938. Kristallnacht was a coordinated attack on Jewish people and their property during which nearly 30,000 Jews were arrested and deported to concentration camps. Walter was arrested by the Nazis for trying to move his art work to the United States and the Nazis auctioned hundreds of pieces of his art to pay his fine.
Four years ago, while doing a web search, Fred Westfield discovered that the Boston Museum of Fine Arts was looking for Walter’s descendants because they had in their possession "Portrait of a Man and a Woman in an Interior" by 17th century Dutch master Eglon van der Neer. The museum suspected that the portrait had once been owned by Walter, and had been illegally sold by the Nazis.
Now 82, Fred Westfield and his family are suing the German government over his uncle’s extensive art collection that had been seized by the Nazis and sold at auction during World War II.
According to The Associated Press, the lawsuit is unusual because ‘it is seeking damages for lost art rather than the return of items that once belonged to Holocaust victims.’ Generally speaking, previous cases have generally sought to have the art returned to the family’s estate from current owners. Under the Hague Convention, Germany has 3 months to accept or reject the lawsuit.
Fred Westfield estimates that the 400 or so works of art would be valued at tens of millions of dollars today.
David M Smith
Listen to the Health Care Consent Act.
This week on Hull on Estates, Megan Connolly and Sean Graham review the Golubchuk case out of Manitoba and discuss the Health Care Consent Act of Ontario.