The most recent example is that of Carlos Irwin Estevez, or better known by his stage name as Charlie Sheen. Throughout the years Charlie Sheen has experienced challenges with both substance abuse and engaging in illegal acts with prostitutes. Last November, 2010 Charlie Sheen filed an extortion lawsuit against a female pornography star named Christina Walsh, aka Capri Anderson. Christina Walsh alleged that Charlie Sheen had tried to choke her during a meltdown that he allegedly had last October, 2010 in a New York hotel room. Charlie Sheen then filed an extortion lawsuit in response which alleged that she had demanded both $1,000,000 to keep quiet and that she is working as an illegal prostitute.

Over the last six months Charlie Sheen’s self destructive habits seem to have come to a crashing bottom. There have been numerous detailed news stories revealing both his extreme crack-cocaine abuse and elicit relationships with different female pornography stars and prostitutes. All of these issues seemed to explode last January when Charlie Sheen went on an alleged cocaine bender that landed him in the hospital when he started to experience extreme stomach pains. After this trip to the hospital Charlie Sheen finally checked into a non-disclosed rehabilitation center in early last February. During this entire self-destructive rampage Charlie Sheen had different female pornography stars and prostitutes around him allegedly manipulating his finances. There were times when Charlie was paying these women thousands of dollars per night and even buying them over the top gifts like cars.

Charlie Sheen is an ideal example of when someone would benefit by having a conservatorship in place during a difficult time. If he had someone that he trusted in charge of his money during this chaotic time (a conservator), he would have been protected from those around him who were unduly influencing him by taking his money. A conservator of his estate would have the responsibility of protecting his income and property, managing his finances, ensuring all of his bills are paid and that no one else would have access to extorting money from him. A conservator of his estate would also be obligated to provide the court with regular financial reports of the state of his financial accounts. This ensures that even the conservator of an estate is held accountable to their duties.

Another option is to have a conservator of the person elected as well. A court will often elect both a conservator of the estate and a conservator of the person to make sure that both the financial and health interests of the vulnerable person are protected. Both of these positions can be held by different people, or can be held by the same person depending on what the court feels is in the best interest of the vulnerable person. In Charlie’s case a conservator for him as a person would be best as well. This is because he is now going through severe health problems due to his extreme substance abuse and having a conservator would ensure that his medical wishes are respected as well.

No matter what the status of a person, anyone can be at risk of being taken advantage of during difficult times. Difficult times may be a drug addiction or a case of Alzheimer’s. To be properly protected it is smart to ensure that both you and your finances will be handled by someone that you trust if the unfortunate should occur. You can do this by writing advance directives for medical and financial decisions in something like a will or trust. However, if the worst should occur and no advance directives are recorded, a loved one can petition the court for a conservatorship to ensure that both you and your estate are properly protected.

- Marissa Sirota

Milagros had been working as Mr. Bauer’s nurse since 2009 according to Deputy District Attorney, Danielle Hickman. Employees at Mr. Bauer’s bank became concerned and contacted Adult Protective Services when he had not come into the bank for over three months. According to Sgt. Mark Varnau of the Sheriff Department’s Elder Abuse Unit, when deputies arrived at Mr. Bauer’s El Cajon home last month they found him clutching a photo of his ship the “USS Vestal”. Mr. Bauer was found to be dehydrated, disoriented and suffering from dementia and was reluctant to let authorities in the house due to paranoia. Mr. Bauer’s “caretaker”, Milagro Angeles is now being charged with false imprisonment of an elder, theft by a caretaker and altering checks to steal thousands of dollars from her employer. The judge ordered her to be held on bail of one million dollars.

It was later learned that both of Mr. Bauer’s children were living in both Santa Barbara and San Pedro respectively. When interviewed about their father’s living condition both Mr. Bauer’s son and daughter stated that they had no idea he was being treated like this and that neither had visited in a while. Mr. Bauer’s daughter Stephanie stated that she spoke with the caretaker once a month and had been reassured over and over that her father was healthy and eating well.

In retrospect this was clearly not the case and abusive situations like Mr. Bauer’s occur all too often. There are many cases where family members of an elder will trust either a paid caretaker or family member to properly care for them. This trust may be abused and unfortunately, it is the elder family member that usually pays the price. Mr. Bauer is now in the VA hospital and his daughter Stephanie holds power of attorney over him.

Often times caretakers of the elderly will take advantage of the vulnerable older person for financial gain. It is important to physically check in on your elderly family members as much as possible whether they are being taken care of at home or in a facility.

- Article by Marissa Sirota

After this two year uphill battle in which Thomas contended in court papers and with witness testimony that Seth in fact did exercise undue influence over his mother, the battle finally settled. The terms of the settlement were kept private and the parties agreed that they were all happy the deadlock was resolved. Seth still claims that no undue influence was ever exercised over his mother, however he did choose to settle in the final minutes before trial was to begin.

The first main issue that was to be resolved at trial was whether undue influence would be presumed based on Seth’s close relationship with his mother or not. Thomas, as the challenger of the 2002 amended will, would hold the burden of proving by a preponderance of the evidence (more likely than not) that the amendment in 2002 was in fact a product of undue influence by Seth. This procedure was established in the case of the In re Estate of Lena A. Raedel in 1989 in Vermont. The undue influence doctrine was developed to protect the true intent of the testator (Tasha Tudor). Courts generally defer to the express intent written in a will, but when a challenge of undue influence is asserted courts allow evidence to be presented to determine that what the will expresses was in fact the true intent of the testator. However, in similar Vermont cases it has been established that the ultimate burden of persuasion on the issue of undue influence may sometimes shift. “A presumption of undue influence may arise in cases where (1) the benefiting party was in a ‘confidential relationship’ with the testator, and (2) there were ‘suspicious circumstances’ surrounding the preparation, formation, or execution of the will.” Eckstein, 174 Vt. at 579; In re Will of Collins, 114 Vt. 523, 533, 49 A.2d 111 (1946); Restatement (Third) of Property–Wills and Donative Transfers § 8.3.

In a recent 2009 Vermont opinion, In re: Estate of Orville Tucker, it was found that where a child of a testator is also the legal guardian and a challenge of undue influence is asserted the burden of proving that undue influence did not exist is on that guardian. If Seth Tudor was in fact also considered the legal guardian of his mother, going to court may have been very bad for him. If his brother Thomas could establish that Seth was the legal guardian of Tasha Tudor then Seth would have been the one in the hot seat having to prove that he never in fact unduly influenced his mother in amending her will. Maybe this issue is what prompted Seth to settle just days before trial was to begin.

Seth Tudor’s property adjoined his mother’s and he ran “Tasha Tudor and Family”, a business that sells her books, greeting cards and home furnishing accessories. A life-long friend of Tasha Tudor named Amelia Stauffer who spoke to Tasha almost everyday stepped forward on Thomas’s behalf. Her testimony revealed enlightening information that spoke to Seth denying his mother telephone access, forcing his mother to wear shoes with holes in them, letting Tasha go cold because she didn’t have enough fire wood and letting her prescriptions go unfilled because “she didn’t need them”. All of these things were allegedly done by Seth because he wanted to save his mother’s money. It seems interesting that Seth had such obvious control over his mother’s finances and life in general and yet claims to have not been involved in the drafting of either will. It also seems peculiar that when push came to shove and the case against Seth was about to go to trial he suddenly decided to settle. The fact is because this did not go to trial we may never know the true facts of what influence Seth may or may not have exercised over his mother, Tasha. One things for sure though, had this gone to trial the testimony against Seth along with his “confidential” relationship with his mother may have been key in establishing that Tasha’s amended will was in fact a product of undue influence.

- Authored by Marissa Sirota

Almost all long-term care facility admissions packages have within them arbitration agreements that patients or their guardians sign before they are even admitted into the facility. Our legislature attempted to confront this issue in 2008 under the “Fairness in Nursing Home Arbitration Act”. This bill provided that a pre-dispute arbitration agreement between a long-term care facility and a resident (or anyone acting on the resident’s behalf) shall not be valid or specifically enforceable. The policy behind the bill was that no one should have to agree to a dispute resolution procedure before the dispute even arises. This is because until the wrong has been done, a party will not know whether they want to sue in court or arbitrate out of court. The bill simply found that promising your procedural rights away pre-dispute was unfair, especially in the nursing home scenario. This bill made it past the house of representatives and through the senate judicial committee only to die on the floor of the 110th senate.

The purpose of arbitration agreements is to enable efficiency in dispute resolution. They are meant to help keep court calendars efficient by not clogging the courts with unnecessary disputes. They also help long term care facilities in keeping their litigation costs down. However, on the other side agreeing to this process pre-dispute can leave plaintiff’s in a very tough situation if a dispute arises. In order to hold an arbitration agreement unenforceable most courts across the country require the plaintiff to bear the burden of proof. The plaintiff is required to show that the arbitration agreement is both procedurally and substantively unconscionable. This means that the plaintiff must prove that the process that was used in signing the agreement was procedurally unfair. It also requires the plaintiff to prove that the arbitration agreement is substantively unfair. Both prongs to this argument must be won for the plaintiff to have a chance of rendering the arbitration agreement unenforceable.

Across the country in states like Arizona, California, Florida and Georgia it has been particularly difficult for long-term care residents and their families to meet this burden of proof. The issues in those cases are typically elder abuse, wrongful death, medical malpractice and the likes. This means that most of the plaintiff’s that have been harmed by a long-term care facility want there day in court, but are forced instead to arbitrate because of an agreement they signed upon entering the facility long before any dispute had occurred.

Some advice to keep in mind when admitting yourself or another into a long-term care facility is to take your time and read the contract in its entirety. Have an attorney present if possible and try to negotiate the removal of the arbitration agreement from the contract if that’s what you want. If the facility refuses to remove the arbitration agreement and you must sign, then below your signature write down that you tried to negotiate the arbitration agreement out of the contract but were told it was a “take it or leave it” contract. These words will help down the road if a dispute ever arises to show that the arbitration agreement was unconscionable and that it was a contract of adhesion that you had no bargaining power in.

- Marissa Sirota

Afterwards, Coleman laid comatose in the hospital and his ex-wife still had the medical power of attorney through an advance health care directive. Under California law, an advance health care directive should be automatically revoked at divorce – see California Probate Code § 4797. However, because some facts are not immediately accessible through the media, that law was not honored at the hour of his death. It could be that under the Health Care Decisions Law, a revocation of an agent is handled differently than the underlying instructions. But regardless of the law, such fine distinctions are likely little comfort to Coleman, because in that advance health care directive or medical power of attorney, Coleman selected the following:

I direct that my health care providers and others involved in my care provide, withhold, or withdraw treatment in accordance with the choice I have marked below: (b) Choice to Prolong Life. I want my life to be prolonged as long as possible within the limits of generally accepted health care standards.” (emphasis added).

In other words, he did not want anyone to pull the plug. Against those wishes, his wife allegedly took him off of life support. To top it off, she is now in a court battle to become executor of his estate. It may be too late for Coleman, but let this be a lesson to everyone else. If you are divorced and have not tidied up your affairs, now would be the time to consult an attorney to learn the proper method of revoking it.

** UPDATE **

Michael Jackson’s father has filed a wrongful death suit against the doctor who is alleged to have negligently caused his death by a lethal set of prescriptions.

* Planning shorter meetings
* Planning for the effects the illness has had on the client’s ability to write
* Recognizing that family members may be exerting undue influence on the client
* Helping the client come to terms with the need for estate planning
* Addressing special estate planning issues that might arise as the client’s illness progresses
* Paying attention to how a client’s religious beliefs impact planning

Thanks to Prof. Beyer for bringing this article to my attention.

California has a similar rule – in fact a California Superior Probate Court has exclusive jurisdiction over some causes of action. California Probate Code § 7050. Another Court in California may not render a second opinion on the same set of facts as a Probate Court except in very limited circumstances, which is what the Texas Court was ruling upon. On a somewhat related note, prosecutors released a bizarre tape of an apparently drugged Anna Nichole Smith in an attempt to prove that Howard Stern was manipulating her. . .