LAWS/SOCL 205: Aging and the Law
Articles on Aging and the Law: Analysis and Application
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You are to choose two articles on any “Aging and the Law” topic that interests you. You can use the article you chose the first week of class and another article on the same topic. Or you can choose another topic and choose two articles on that topic.
1. Analyze the two articles by summarizing the articles and post the summaries in the Discussion Board for the week you are assigned. Your assigned week is listed below.
2. In the Discussion Boards we have been using, I have created different scenarios based on the week’s topic. The Discussion Boards are designed to apply your knowledge of the topic to real-life Elder Law situations. After you summarize the articles, your must also write a scenario based on the articles’ topic. You will post 2-3 questions following your scenario. Every student is required to respond to at least three postings by other students by answering the questions posed. You do not need to respond to other students’ responses, you only need to answer the questions.
3. You can choose to approach the topic from a legal, public policy or sociology point of view.
4. Each student must respond to the questions posted by at least three other students in the class.
The week your articles summary, scenario and questions are due is indicated below.
***Please do exactly as this says, I will pay for this to be at it’s best.
Please include the articles either as a pdf, word doc, or link so I can acess them. Summarize in full. Solid 400 words or more for each article would be good.
Example of a discussion board (this includes answers):
Discussion Board #6 Week # 6 Comments
Please read the answers below very carefully. The answers further explain the concepts presented in the lecture notes.
1. Janice Small owns a lake cottage. In a deed she conveys the cottage “to my father Brett Small, for life, then to my sister, Sue Small for life.” Janice outlives her father but dies before her sister, Sue. It Brett a life tenant? Explain. Who gets the property when Brett dies? What interest does Sue have at the time of Janice’s conveyance? In this scenario, what happens to the property when Sue dies?
Janice conveyed the cottage during her life to her father Brett Small for his life. Brett was given a life estate and was the life tenant for his life. (“to my father Brett Small, for life”) Brett died before Janice and when he died the property went to Janice’s sister Sue Small for her life. (“then to my sister, Sue Small for life”) Sue has a future interest in the property in the form of a life estate, and is the life tenant for her own life. Both Brett and Sue only have life interests (for his or her own life) in the property. When Brett died the property went to Sue for her life. When Sue dies she no longer has an interest in the property; therefore, the property will revert to the estate of Janice. No remainder interest was named in the original deed, only life estates were given, one to her father, Brett, and one to her sister, Sue. Janice’s estate has a reversionary interest in this property (reverting to her estate) and this property will then pass by her will (if her will is determined to be valid) or according to the laws of intestate succession, if she does not have a valid will or no will at all. If there is no residuary clause in her will (for the leftovers!) and no named beneficiaries (who are still alive), the lake cottage would then pass by intestate succession law. As some of you mentioned, in the deed Janice could have named a remainder interest after Sue’s life tenancy ended, but Janice did not; therefore, there is no other person (or charity) to inherit the property; thus, the lake cottage will revert to Janice’s estate.
2. In his will, Alex Lane names his friend Robert Conners trustee and places substantial property in a trust for the benefit of Alex’s wife Marie and for Alex’s sister, Minnie. Marie and Robert are not on good terms and the hostility between them worsens after Alex’s death. The trust gives Robert broad discretion to distribute the trust income to the two beneficiaries. As a matter of fact, the first year of the trust, Robert distributed the trust income in unequal amounts giving a much greater share to Minnie than to Marie. Marie is outraged and seeks to remove Robert as an unsuitable trustee claiming he is favoring one beneficiary over another. Based on the information provided above and your reading, will Marie be successful in her effort to remove Robert as the trustee? Explain.
Most likely, based on the information above and your reading, Marie will not be successful in removing Robert as the trustee. Since Alex gave Robert “broad discretion” to distribute the trust income to the two beneficiaries, Marie’s claim that Robert is an “unsuitable” trustee for favoring one beneficiary over the other would probably fail. (I say probably because we do not know how the court will rule nor do we have all the facts).
Some of you suggested that more facts were needed to fully answer question #2 and that is a very good point. As you know, there are times in the law where there may be “unknown facts” which must first be investigated before any action can be taken. It is the attorney and/or paralegal’s responsibility to do this factual investigation to the best of his/her ability. Should Alex have been more specific in the trust instrument regarding Robert’s duties? Would this make a difference? Is “mere friction” between the trustee and the beneficiary sufficient grounds to remove the trustee? Does this “mere friction” lead to “favoring one beneficiary over the other?” But, the trust instrument gives Robert “broad discretion,” to distribute the trust income, what does this mean? Is there a conflict of interest on the part of the trustee? If there is hostility between the trustee and a beneficiary, is this sufficient grounds for removal of the trustee? Is the hostility interfering with the trustee’s ability to perform the required duties of the trust? Has the hostility adversely affected the administration of the trust? What is in the best interest of all the beneficiaries? Was there mismanagement of the trust funds? Were Robert’s actions, in this one instance, sufficient to prove a case of breach of Robert’s “fiduciary duty” to Marie? A thorough investigation of all the facts would determine if Robert could/should be removed as trustee. The court would and should consider all these questions and make its determination accordingly. Several of you suggested that Robert could not be removed as trustee because the trust was a testamentary trust that is irrevocable since Alex has passed. However, if the trustee breaches his/her fiduciary duty, the trustee, even a trustee of an irrevocable trust, can be removed if a beneficiary, or other interested party, petitions the court for removal and is successful by proving actual conduct by the trustee that amounts to a breach of the trustee’s fiduciary duty. Otherwise, if a trustee cannot be removed, the trustee could abscond with all the funds and the beneficiaries would be left with nothing!
One student asked if the court would follow the “strict letter of the law” or “interpret the law” to adjust the distribution more in line with Alex’s original wishes. However, do we know what Alex’s original wishes were? The facts state that “Marie and Robert are not on good terms and the hostility between them worsens after Alex’s death.” This means that when Alex created the trust he must have been aware of the tensions between Marie and Robert since the “hostility between them” worsened “after” his death. Therefore, do we know what Alex’s original wishes were?
3. Federal estate and gift taxes are discussed in Ch. 7 Financial and Estate Planning. Listed below are some of the areas discussed in the chapter. Explain how two of these areas can be used in an estate plan to reduce taxes:
a. Gifts made during one’s lifetime
b. The unlimited marital deduction
c. Irrevocable trusts
d. Life Estates