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Full-Text Articles in Law

New York Mental Hygiene Law Article 81 Proceedings: A Proposal To Better Protect The Best Interests Of An Alleged Incapacitated Person, Casey Marsh Jan 2023

New York Mental Hygiene Law Article 81 Proceedings: A Proposal To Better Protect The Best Interests Of An Alleged Incapacitated Person, Casey Marsh

Touro Law Review

Guardianship proceedings under New York Mental Hygiene Law Article 81 are intended to protect the personal needs and property management of an alleged incapacitated person. A guardian appointed for a person is responsible for making decisions in line with the best interests and wishes of his or her ward. While guardians serve a very important purpose, the current procedures of guardianship proceedings allow too much room for family members to bring a proceeding without the alleged incapacitated person’s best interests in mind. Often, people bring guardianship proceedings to fish for information on family members or to circumvent a future Surrogate’s …


End Of Life, Elder Abuse, And Guardianship: An Exploration Of New York’S Surrogate Decision-Making Framework, Tristan Sullivan-Wilson, Esq., Deirdre Lok, Esq., Joy Solomon, Esq. Jan 2022

End Of Life, Elder Abuse, And Guardianship: An Exploration Of New York’S Surrogate Decision-Making Framework, Tristan Sullivan-Wilson, Esq., Deirdre Lok, Esq., Joy Solomon, Esq.

Touro Law Review

The best end of life care is always that which aligns with the wishes and values of the incapacitated person. For individuals with the capacity to execute advance directives, these documents and conversations with appointed surrogates are the clearest way to make care values known. However, the time, access, and ability to engage in advance planning is not an opportunity equally afforded.For those without advance directives and now involved in a guardianship proceeding, the party petitioning or otherwise involved in the case should consider addressing end of life decision-making directly in the guardianship hearing when major medical decision-making power may …


The Pro Bono Collaborative Project Spotlight: Can You Help? December 2020, Roger Williams University School Of Law Dec 2020

The Pro Bono Collaborative Project Spotlight: Can You Help? December 2020, Roger Williams University School Of Law

Pro Bono Collaborative Staff Publications

No abstract provided.


Litigation As Parenting, Lisa Martin May 2020

Litigation As Parenting, Lisa Martin

Faculty Publications

Children have legal rights. Yet, children typically lack the legal capacity to represent their interests in courts. When federal courts are presented with children’s claims, the Federal Rules of Civil Procedure require courts to ensure that children’s legal interests are adequately protected. To do so, courts decide who can speak and make decisions for the child within the litigation. Federal Rule of Civil Procedure 17(c) maps out a loose process for addressing these concerns but fails to fully account for a critical factor in protecting child litigants: the decision making rights of parents.

Because parents have constitutionally protected authority to …


The Guardian Trustee In Bankruptcy Courts And Beyond, Lindsey Simon Jan 2020

The Guardian Trustee In Bankruptcy Courts And Beyond, Lindsey Simon

Scholarly Works

Litigation systems create dangers of unfairness. Citizens worry, and should worry, about exploitive settlements in aggregate litigation, potential biases in administrative proceedings, and troubling power imbalances in criminal trials. Public confidence in adjudicative processes has eroded to an all-time low. This Article explores the untapped potential of adding independent watchdog entities to address systemic threats to the integrity of government decisionmaking. These entities, which I call “guardian trustees,” do not fit within the traditional framework of our adversary system. Though guardian trustees already operate in bankruptcy proceedings, they have thus far received little attention in scholarly literature. This Article begins …


Standing For Standing Rock?: Vindicating Native American Religious And Land Rights By Adapting New Zealand's Te Awa Tupua Act To American Soil, Malcolm Mcdermond Apr 2019

Standing For Standing Rock?: Vindicating Native American Religious And Land Rights By Adapting New Zealand's Te Awa Tupua Act To American Soil, Malcolm Mcdermond

Dickinson Law Review (2017-Present)

On February 23, 2017, the Standing Rock Sioux Tribe (“Tribe”) was forced to disband its nearly year-long protest against the construction of the Dakota Access Pipeline, which threatened the integrity of its ancestral lands. The Tribe sought declaratory and injunctive relief in the United States District Court for the District of Columbia, but the court ruled against the Tribe and failed to protect its interests. While the United States was forcibly removing Indigenous protesters, other countries were taking steps to protect Indigenous populations. In unprecedented legislative action, New Zealand took radical steps to protect the land and cultural rights of …


Principled Policing: Warrior Cops And Guardian Officers, Seth W. Stoughton Jan 2016

Principled Policing: Warrior Cops And Guardian Officers, Seth W. Stoughton

Faculty Publications

Policing in the United States is in crisis. Public confidence in policing is at the lowest point since the Rodney King beating. A bare majority of Americans still report confidence in the police, and an unprecedented number of people report no or very little confidence in policing. A long history of poor police/community relations in minority and low-income neighborhoods has been exacerbated by egregious acts of misconduct, some of which have been captured on video and shared on social media. Activists, politicians, and police officials themselves have called for better education and equipment, from de-escalation training to body-worn camera systems. …


Dynamic Complementarity: Terri's Law And Separation Of Powers Principles In The End-Of-Life Context, O. Carter Snead Oct 2015

Dynamic Complementarity: Terri's Law And Separation Of Powers Principles In The End-Of-Life Context, O. Carter Snead

O. Carter Snead

The bitter dispute over the proper treatment of Theresa Marie Schiavo - a severely brain-damaged woman, unable to communicate and with no living will or advance directive - has garnered enormous attention in the media, both national and international. What began as a heated disagreement between Ms. Schiavo's husband and parents mushroomed into a massive political conflict involving privacy advocates on one side, and right-to-life and disability activists on the other. The battle raged on the editorial pages of the world's newspapers, in the courts, and ultimately, in the legislative and executive branches of the Florida state government. After nearly …


The (Surprising) Truth About Schiavo: A Defeat For The Cause Of Autonomy, O. Carter Snead Oct 2015

The (Surprising) Truth About Schiavo: A Defeat For The Cause Of Autonomy, O. Carter Snead

O. Carter Snead

A survey of the commentary following the conclusion of the Theresa Marie Schiavo matter leaves one with the impression that the case was a victory for the cause of autonomy and the right of self-determination in the end-of-life context. In this essay, I seek to challenge this thesis and demonstrate that, contrary to popular understanding, it is the defenders of autonomy and self-determination who should be most troubled by what transpired in the Schiavo case. In support of this claim, I will first set forth (in cursory fashion) the underlying aim of the defenders of autonomy in this context. Then, …


Asperger's Disorder, High-Functioning Autism, And Guardianship In Ohio, Michael E. Bloom Jun 2015

Asperger's Disorder, High-Functioning Autism, And Guardianship In Ohio, Michael E. Bloom

Akron Law Review

Early in the 1940s, two men, worlds apart and unaware of each other’s work, used the term “autism” to describe children that had remarkably similar characteristics, namely core impairments in socialization, communication, and imagination. In the United States in 1943, Leo Kanner published an account of “early infantile autism,” describing children with impaired social interaction, impaired communication, and stereotyped behaviors and interests.Kanner’s children seemed to relate better to objects than people. In Austria in 1944, Hans Asperger used the term “autistic psychopathy” to describe children with impaired social interaction, behavioral oddities, and poor coordination. Asperger’s children, who displayed no delay …


Surrogate's Court, Broome County, In Re Guardian Of Derek, Barry M. Frankenstein May 2014

Surrogate's Court, Broome County, In Re Guardian Of Derek, Barry M. Frankenstein

Touro Law Review

No abstract provided.


In Re Allers: A Display Of Progress, Not Perfection, In The Guardianship System, Melanie Rosen May 2014

In Re Allers: A Display Of Progress, Not Perfection, In The Guardianship System, Melanie Rosen

Touro Law Review

No abstract provided.


Seen But Not Heard: Advocating For Children In New York State, Sarah L. Marx Apr 2013

Seen But Not Heard: Advocating For Children In New York State, Sarah L. Marx

Touro Law Review

On November 1, 2008, the New York State Bar Association House of Delegates approved a resolution affirming their commitment towards establishing a civil right to counsel in New York State. One of the issues identified is a child's right to representation not only in criminal, but also civil proceedings. Unlike other litigant groups, children have a statutorily established right to council in civil proceedings. However, as the white paper, adopted by the New State Bar Association, details, there are gaps in children 's advocacy throughout New York State. While significant steps towards improvement have recently taken place, there is still …


Getting Paid In Probate Court., Robert J. Augsburger Jan 2013

Getting Paid In Probate Court., Robert J. Augsburger

St. Mary's Law Journal

After reviewing the Texas Probate Code, the Texas Property Code, and current case law, this Essay compiles relevant information designed to assist attorneys in obtaining payment for services provided to their clients. An attorney ad litem is an officer of the court whose “fees are assessed as costs of suit” rather than requiring the ad litem to seek “fees only from his clients’ recovered shares.” Therefore, each attorney ad litem appointed under § 34A of the Texas Probate Code is entitled to reasonable compensation for services in the amount set by the court. The attorney’s fees “must be supported by …


The Child's Right To Be Heard And Represented In Judicial Proceedings , Howard A. Davidson Nov 2012

The Child's Right To Be Heard And Represented In Judicial Proceedings , Howard A. Davidson

Pepperdine Law Review

No abstract provided.


Guardianship Mediation, Janice Grant Aug 2012

Guardianship Mediation, Janice Grant

Marquette Elder's Advisor

Court guardianship proceedings are designed to determine the need for a guardian. Mediation may be used to rather substitute voluntary services by allowing interested parties to offer suggestions for appropriate care. Grant discusses which cases may be appropriate or inappropriate for mediation and outlines a suggested mediation process. The advantages of maintaining greater autonomy and independence for the elderly are elaborated.


Defects, Due Process, And Protective Proceedings, Susan G. Haines, John J. Campbell Aug 2012

Defects, Due Process, And Protective Proceedings, Susan G. Haines, John J. Campbell

Marquette Elder's Advisor

This article discusses whether the requirements of due process in protective proceedings be any lower that those in criminal, juvenile, or civil commitment cases. The authors argue that the requirements should not be lower. The article discusses the application of Mathews v. Eldridge to due process analysis in guardianship and conservatorship proceedings.


Guardians And Wills: "Substituted Judgment" In Estate Planning Deserves Another Look, Edward A. Shipe Aug 2012

Guardians And Wills: "Substituted Judgment" In Estate Planning Deserves Another Look, Edward A. Shipe

Marquette Elder's Advisor

In some circumstances, a guardian is faced with estate planning documents that may not reflect the ward's true intentions. In many states, the guardian has no option to alter or change those documents. The author asserts that in some circumstances, a guardian should have the authority to change a ward's estate plan.


Rights, Rights And Rights: A Ward's Right To A Hearing, A Guardian's Right To A Standard, And A Heir's Right To Inheritance, Edward A. Shipe Aug 2012

Rights, Rights And Rights: A Ward's Right To A Hearing, A Guardian's Right To A Standard, And A Heir's Right To Inheritance, Edward A. Shipe

Marquette Elder's Advisor

This article discusses a recent guardianship decision from a Florida appellate court that bore close scrutiny regarding due process rights and the right to "Medical Planning."


Court Approval Of Medicaid Spend-Down Planning By Guardians, Linda S. Ershow-Levenberg Aug 2012

Court Approval Of Medicaid Spend-Down Planning By Guardians, Linda S. Ershow-Levenberg

Marquette Elder's Advisor

This article discusses In re Keri, which was decided by the New Jersey Supreme Court in 2004. The topics explored include that a P.O.A. in itself may not be sufficient to allow gifting; a guardianship may be required. The difference between gifting for retirement planning or enhancing Medicaid eligibility is discussed, as well as court cases from several jurisdictions.


Guardianship Actions Against Individuals Who Have Selected An Agent As Power Of Attorney: When Should The Court Say "No?", Linda S. Ershow-Levenberg Aug 2012

Guardianship Actions Against Individuals Who Have Selected An Agent As Power Of Attorney: When Should The Court Say "No?", Linda S. Ershow-Levenberg

Marquette Elder's Advisor

This article discusses the need for guardianship for presumably incapacitated individuals who already have designated someone to have their power of attorney or to be their healthcare representative. Noting that the privacy and liberty of an individual will be affected by appointing a guardian, the author proposes that guardians not be unnecessarily appointed when currently in-place representatives already fulfill needed services.


The Schiavo Odyssey: A Tale Of Two Legislative Reprieves , Miriam Rosenblatt-Hoffman Aug 2012

The Schiavo Odyssey: A Tale Of Two Legislative Reprieves , Miriam Rosenblatt-Hoffman

Marquette Elder's Advisor

Between the time that Terri Schiavo's husband received court approval to discontinue her life support systems and her ultimate demise more than five years later, contentious legal battles were waged and specific state and federal laws were enacted to prolong Terri's life. The author postulates and explains why both laws were unconstitutional, and decries the legislative interference in patient autonomy.


Will Contests: From Start To Finish., Joyce Moore Jan 2012

Will Contests: From Start To Finish., Joyce Moore

St. Mary's Law Journal

This Article primarily focuses on the practical problems facing attorneys and courts when evaluating and proving up a will or trust in contested cases. The focus extends further into the special procedural and evidentiary rules applicable to these actions, the use and misuse of summary judgment proceedings in these cases, and some observations regarding developing trends and strategies in will and trust contest litigation. Admittedly, this area of practice is a melting pot of presumptions, exceptions, threshold hurdles, capacity qualms, evidentiary issues, strategic clauses, and countless other headache-inducing legal issues. Yet, attorneys must diligently juggle all of them while also …


Vol. 1 No. 2, Spring 2010; Illinois Does Not Care About Caregivers As Evidenced By The Ineffective And Exclusionary Custodial Claims Statute Of The Probate Act, Mariam L. Hafezi Qualman May 2010

Vol. 1 No. 2, Spring 2010; Illinois Does Not Care About Caregivers As Evidenced By The Ineffective And Exclusionary Custodial Claims Statute Of The Probate Act, Mariam L. Hafezi Qualman

Northern Illinois Law Review Supplement

Family members taking on the responsibility of caring for sick or disabled relatives is on the rise, and it is only trending upward in the future due to a multitude of factors. Illinois appeared to be on the edge of this trend by enacting the Statutory Custodial Claims statute for the Illinois Probate Act, which allows compensation for caregiving spouses, parents, siblings, and children; however, the language of this statute is ineffective in solving the problem it purports to set out to fix by creating very cumbersome, and rather unfounded, dedication and live-in requirements that are rarely met by the …


Is A Guardian The Alter Ego Of The Ward?, Lawrence A. Frolik Jan 2007

Is A Guardian The Alter Ego Of The Ward?, Lawrence A. Frolik

Articles

A guardian has a fiduciary relationship to the ward, but what exactly does that mean? Certainly a guardian is expected to act in the best interests of the ward, but how are those interests determined? Guardians are encouraged to act just as the ward would, but that implies that a guardian is closer to being an agent of the ward than a fiduciary. Yet a guardian must reconcile that agent like duty with obligations to the court who appointed him. In light of the perceived value of implementing the wishes of the ward, increasingly, appointing courts have come to treat …


The Convicted Felon As A Guardian: Considering The Alternatives Of Potential Guardians With Less-Than-Perfect Records, Mike Jorgensen Aug 2006

The Convicted Felon As A Guardian: Considering The Alternatives Of Potential Guardians With Less-Than-Perfect Records, Mike Jorgensen

ExpressO

Courts require discretion in appointing guardians. Oftentimes, the legislature prevents the courts from exercising discretion when statutes are enacted that prohibit felons from serving as guardians under any circumstances. Yet, the need for guardians is increasing and will continue to do so due to the exponential growth in the aging elder population.

At the same time, however, the pool of potential guardians is shrinking in size. Additionally, the same reducing pool of eligible guardians is being attenuated further by having a disproportionate amount of felonies.

The groups most impacted by these trends are the indigent and the minorities. The indigent …


Report Of The Working Group On The Best Interests Of The Child And The Role Of The Attorney, Working Group On The Best Interests Of The Child And The Role Of The Attorney Mar 2006

Report Of The Working Group On The Best Interests Of The Child And The Role Of The Attorney, Working Group On The Best Interests Of The Child And The Role Of The Attorney

Nevada Law Journal

No abstract provided.


The (Surprising) Truth About Schiavo: A Defeat For The Cause Of Autonomy, O. Carter Snead Jan 2005

The (Surprising) Truth About Schiavo: A Defeat For The Cause Of Autonomy, O. Carter Snead

Journal Articles

A survey of the commentary following the conclusion of the Theresa Marie Schiavo matter leaves one with the impression that the case was a victory for the cause of autonomy and the right of self-determination in the end-of-life context. In this essay, I seek to challenge this thesis and demonstrate that, contrary to popular understanding, it is the defenders of autonomy and self-determination who should be most troubled by what transpired in the Schiavo case. In support of this claim, I will first set forth (in cursory fashion) the underlying aim of the defenders of autonomy in this context. Then, …


Dynamic Complementarity: Terri's Law And Separation Of Powers Principles In The End-Of-Life Context, O. Carter Snead Jan 2005

Dynamic Complementarity: Terri's Law And Separation Of Powers Principles In The End-Of-Life Context, O. Carter Snead

Journal Articles

The bitter dispute over the proper treatment of Theresa Marie Schiavo - a severely brain-damaged woman, unable to communicate and with no living will or advance directive - has garnered enormous attention in the media, both national and international. What began as a heated disagreement between Ms. Schiavo's husband and parents mushroomed into a massive political conflict involving privacy advocates on one side, and right-to-life and disability activists on the other. The battle raged on the editorial pages of the world's newspapers, in the courts, and ultimately, in the legislative and executive branches of the Florida state government. After nearly …


The Role Of The Parent/Guardian In Juvenile Custodial Interrogations: Friend Or Foe?, Hillary B. Farber Jan 2004

The Role Of The Parent/Guardian In Juvenile Custodial Interrogations: Friend Or Foe?, Hillary B. Farber

Faculty Publications

Part II briefly sets out the historical context of juvenile delinquency proceedings before and after the landmark U.S. Supreme Court case In re Gault. Part III discusses the two current approaches to assessing the validity of a juvenile's waiver. Part IV examines three inadequacies with the parent/guardian advisor: (1) the standardless approach with which courts assess their appropriateness; (2) the inadequacy with which adults understand Miranda; and (3) the conflicts of interest that arise in this context. Part V analogizes to the abortion and paternity contexts to support the argument that lawyers should act as primary advisors to …