Law Commons^™

Creating And Sustaining Interdisciplinary Guardianship Committees, Carolyn L. Dessin, Julia R. Nack, Judge Thomas Swift

Carolyn L. Dessin

Over the past two decades, guardians, advocates, and the judiciary have been working at the national level to improve guardianship law and practice. This work was set in motion by a series of more than 200 Associated Press Wire Stories about guardianship abuses that were published in the mid-1980s. Over the next decade, guardians and other interested parties built relationships and established an association dedicated to improving guardianship. In the year 2000, members of the National Guardianship Association (“NGA”) wrote and formally adopted “Standards of Practice” for guardians. In 2001, at the Wingspan Conference held at Stetson University, other national …

Arbitrability And Vulnerability, Carolyn L. Dessin

Carolyn L. Dessin

Arbitration is cool. Everybody‟s doing it. In the eighty-five years since the passage of the Federal Arbitration Act, that seems to be the prevailing sentiment. Recent decades have seen the meteoric rise of arbitration as a form of alternative dispute resolution. Arbitration is widely regarded as a less expensive, more expeditious alternative to litigation.

Courts frequently note that federal policy clearly favors arbitration. No judicial enthusiasm for arbitration seems more complete than that evidenced in the jurisprudence of the United States Supreme Court.

Along with the rise of arbitration, however, there has also been a rise in the amount of …

Should Attorneys Have A Duty To Report Financial Abuse Of The Elderly?, Carolyn L. Dessin

Carolyn L. Dessin

Exploitation of older persons is a growing problem in America. As a result, our legal and social systems are struggling to develop structures that will prevent, remedy and punish instances of abuse. From all indications, financial abuse is becoming increasingly common, and can be devastating to its victim.

States have enacted a wide variety of statutes aimed at alleviating financial abuse. There are two relevant bodies of law: a state's protective services law and the state's criminal law. Although one may normally think of the purpose of the criminal law as deterring and punishing crimes, and the protective services law …

Protecting The Interests Of Older Clients In Multi-Generation Representations, Carolyn L. Dessin

Carolyn L. Dessin

Estate planning is a field in which attorneys often represent members of the same family of different generations. This frequently leads to situations in which the family members have conflicting, or at least potentially conflicting, financial interests. Unfortunately, attorneys sometimes do not recognize the difficulties that such conflicting interests may cause until a full-blown fight develops between members of the family. At that point, the attorney may find himself open to a disciplinary complaint or a malpractice action, or, at the very least, a group of unhappy former clients.

Special concerns arise when one or more of the family members …

Financial Abuse Of The Elderly: Is The Solution A Problem?, Carolyn L. Dessin

Carolyn L. Dessin

As a population, we are aging rapidly. With this phenomenon has come an increasing interest in the problems of older Americans. Early studies of elder abuse in the 1970s began a dialogue that continues with increasing vitality. This dialogue has prompted states to attempt to prevent, remedy, and punish elder abuse in a variety of ways.

Although all of the early studies and most of the current studies focus on physical and psychological abuse of the elderly, there is a growing appreciation that financial abuse is a serious problem. Accordingly, many states have attempted to remedy financial abuse, often called …

Financial Exploitation Statutes’ Impact On Domestic Relations Practice, Carolyn L. Dessin

Carolyn L. Dessin

As baby boomers age, we seem to be thinking more and more about the concerns and needs of the older American. From retirement communities that sprout like weeds to ubiquitous Viagra ads, the national attention increasingly seems focussed on the aging population.

One outgrowth of this increased attention to elder issues is a growing awareness of elder abuse. This problem went virtually unnoticed before 1975, when various organizations began studying it. Now, discussions about elder abuse take place with increasing frequency, and one hears frequent calls for action to prevent or remedy the problem. Although there are few attempts to …

Acting As Agent Under A Financial Durable Power Of Attorney: An Unscripted Role, Carolyn L. Dessin

Carolyn L. Dessin

The financial durable power of attorney, also known as a durable power of attorney for property management, is a creature of fairly recent origin. The estate planning bar created it to provide an effective alternative to guardianship or conservatorship proceedings when people become incompetent or incapacitated. Additionally, there was a sentiment that the wealthy had an effective way of dealing with potential disability by creating a funded inter vivos trust, and that such a device was not available to most individuals because of the prohibitive cost. Since its creation, the financial durable power of attorney has become an extremely popular …

The Troubled Relationship Of Will Contracts And Spousal Protection: Time For An Amicable Separation, Carolyn L. Dessin

Carolyn L. Dessin

We live in a society with rapidly changing familial norms. Statistics show that one out of every two marriages ends in divorce, and even higher divorce rates are projected. The number of people who remarry following a divorce also is increasing.

Much has been written about the effect of the changing family patterns on estate planning. In the era when having only one spouse and one set of children was the norm, it was fairly simple to develop a rational system for dividing the person's estate among spouse and children. In recent decades, however, the growing number of multiple marriages …