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Mother Fails to Plan for Care of Daughter After Her Death

A recent case[i] highlights the way that a Special Needs Trust and a Guardianship could have protected a vulnerable adult child. At age 30, the daughter[ii] overdosed on alcohol and methamphetamine while partying with her boyfriend Jesse. She suffered a cardiac arrest and brain damage due to lack of oxygen. After release from the hospital, she moved in with her mother and required 24-hour care. The injury left her with only the ability brush her own teeth and prepare simple meals. She processed information slowly and had a severe memory deficit. The daughter ended up on disability. The mother did not set up a Special Needs Trust or seek a Guardianship.

Mother Dies, Predator Pounces

gangster-539993_1280-explitation

Not actual photograph of Jesse

The mother suddenly died and left her daughter $450,000. Jesse quickly married the daughter. The daughter apparently did not realize she was married because she only referred to him as a friend that she trusts. Jesse failed to follow medical advice to hire a speech and occupational therapist because it was expensive and might not work. He failed to make or keep the daughters doctor appointments or even take advantage of free or low-cost options. Jesse thought that doctors or other family members should be making these arrangements. Most alarming, drug tests revealed showed that the daughter used increasing amounts of methamphetamine under Jesse’s care. This caused her to lose weight and become gaunt.

 

 

Predator Uses Daughter’s Money

When not working at a liquor store, Jesse lived with his mother apparently leaving the daughter to fend for herself. Jesse diverted at least $30,000 of the daughters social security benefits to himself. Instead of providing for her care, he used the daughters disability benefits for a road trip, jewelry and a new wardrobe. Recover of the money from Jesse was hopeless because he had no assets and was responsible for five children.

The court eventually appointed the daughter’s aunt as the guardian.

A Special Needs Trust Would have Protected Daughter

Predators smell money. The daughter was the perfect target for Jesse because she was trusting and incapable of managing her own affairs. Jesse was in a perfect position to exploit and controlled her with drugs and alcohol. The marriage was Jesse way to gain more control over her resources. A Special Needs Trusts (SNT) could have placed a Trustee in charge of the daughters money. Such an arrangement makes it more difficult for predators to exploit individuals. A SNT can also prevent the loss of SSI disability benefits.

A Guardianship Could have Prevented Exploitation and Provided Care

In addition to a SNT, a guardianship would have offered the daughter additional protection. In this case, the mother could have been named as a guardian. She then could have named a successor guardian in her own will. Generally speaking, a parent, spouse or child, who is serving as a guardian, can nominate an individual to serve as their successor guardian. The law and courts generally treats the person so nominated with priority over others who wish to be the guardian. In this case, it would have been better if her mother became a guardian then name the daughters aunt to be the successor guardian in mothers will.

Planning Key to Better Outcomes

This case illustrated how prevention of predator abuse can be greatly diminished through planning. Other considerations are continued qualification for programs such as Medicaid and SSI disability. Choosing trusted individuals to be in charge as a Trustee or Guardian is also vital. Had these protections been in place, the daughter would have been a less attractive target for predators. It would have also enabled her to receive the needed care.

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i] See case at http://law.justia.com/cases/california/court-of-appeal/2016/b270310.html

[ii] The Courts concealed the names to protect the privacy of the parties.

Another Reason to Walk, Run and Ride

Need additional motivation to get back into shape?  How about fund raising?

My wife and I have been doing things to get back into shape.  This has included running, riding road bikes, swimming and a few other

Terri and I at the Collins County Texas Ride.

Terri and I at the Collins County Texas Ride.

activities.  Recently I stumbled upon an app called Charity Miles.  It helps raise money for various causes by partnering with sponsors who agree to contribute for volunteers’ fitness activities.

How does it work?

Just launch the app, choose a charity and either walk, run or bike. The selected charity then earns money for every mile covered. Walkers and runners earn up to 25¢ per mile; bikers earn up to 10¢ per mile.

Companies like Johnson & Johnson and Humana agree to provide up to 10 cents for every biking mile and 25 cents for every running or walking mile.

File Jun 14, 6 22 46 PMThis screenshot shows the miles of my activities.  I have chosen to dedicate my miles for Alzheimer’s Association.  Almost daily I help with families who are addressing issues caused by this disease.  As a nation we are facing a crisis that will easily overwhelm our health systems.

The app is easy to use and it posts the activities automatically.  You are given an option to Tweet or FaceBook post the activity.

Not that athletic?  Some people turn it on while shopping or mowing their lawn!  Every mile counts.

Want more information?  Go to http://www.charitymiles.org/

File Jun 14, 6 23 01 PM

 

What is a Partition Lawsuit?

Partition is a legal process to consolidate multiple ownership’s in a piece of land into separate tracts or the right to share in the proceeds from the sale of the land.

A Partition Action can be used even if one party with an ownership interest does not want to sell or deal.

Why Partition Necessary?

Often individuals acquire an interest in land through inheritances.  Imagine an owner with 4 kids granting each an interest so we have 4 interest owners.  Suppose these children each have 4 kids and grant each an interest; now there are 16 owners.   Another similar generation will yield 64 interest owners.

Private Partition Agreement:

Court proceedings are costly and the parties quickly can lose control over the outcome.  It is the landowners’ best interest to try to find a private solution rather than going to court.  Sometimes mediation is a good answer.  One solution may involve drawing boundaries.  It could also mean buying out or leasing the other owners’ interests.  Any such agreement should be in writing and filed with the County Clerk “Recorder of Deeds”.

Genesis 13:8

So Abram said to Lot, “Let’s not have any quarreling between you and me, or between your herders and mine, for we are close relatives.  Is not the whole land before you? Let’s part company. If you go to the left, I’ll go to the right; if you go to the right, I’ll go to the left.”

When is a Partition Necessary?

Sometimes there are often holdouts who refuse to deal.  There may be owners who are minors or incapacitated and therefore unable make legally binding decisions.  Finally, there may untraceable owners who have disappeared.  In these cases, a partition may be the only solution.

The facade of the United States Supreme Court building in Washington, D.C.

Who Can Seek to Have Land Partitioned?

Anybody with an undivided ownership interest in the property can seek partition.  This may be:

Tenants in Common (Tenancy in Common)

Joint Tenancy (Joint Tenants)

Heir to Property

Undivided means that they received an interest in the whole property.  For example, a will or trust grant property to “my children in equal shares”.  This creates a “tenancy in common” each owner is entitled to use the property but cannot exclude others.  If there is no will or trust, then share are determined by intestacy statutes.

How does the Partition Process Work?

This article relates to Oklahoma procedures.  An owner of a portion of the property can sue for partition.  This person is called the “plaintiff”.  Each interest owner is given notice of the lawsuit.  The lawsuit identifies each of the owners and the plaintiff describes their ownership interest. The summons instructs them to file an answer.

Commissioners / Appraisers

Once all of the land owners are in the case the Court appoints Commissioners.   Their job is to determine whether the land can be Partitioned in Kind or should be Partitioned by Sale.

Partition in Kind: 

The law presumes that each party should keep a lot in proportion to their interest.  This is done by the Commissioners drawing new boundaries on the land and awarding each owner a lot. There is also a remedy known as owelty.  Owelty is used when one party receives a more valuable portion of land.  He may be required to compensate the parties with cash or a larger share of land.

Partition by Sale:

Sometimes there is not a fair way divide the property.  The next tool is “Partition by Sale”.    The Commissioners become appraisers and value for the property.  After the Commissioners report on the value any owner may elect to pay the commissioners’ price and become owners of the entire property.

Here are three examples of what may occur:

Fact Pattern:  Owner A owns ½, Owners B & C own ¼ each.  The property is valued at $100,000.

Example 1:

Owner A accepts the price and pays $100,000 into the court.  After fees and costs are deducted he is returned ½ of what is left over and B & C each get ¼ of that amount.

Example 2:  Two or more owners elect to pay the commissioners’ valuation.  This causes a deadlock and the property will be sold at a public Sheriff’s sale.

Example 3:  Nobody elects to accept the valuation.  Then the property goes to a public Sheriff’s sale.

 

Sheriff’s Sale (Partition Sale):

Where there is a deadlock by two or more owners offering to pay the Commissioners’ value or where nobody elects to accept it the property is sold at a Sheriff’s sale.  This is a public auction conducted in the same manner as a foreclosure sale.  The property is offered and bidding begins at 2/3rds of the Commissioners’ appraisal.  Anybody, including the landowners, can bid.  The Court then confirms the sale and orders a deed to made to the successful bidder.  The money from the sale is first used to pay the costs including attorney’s fees.  The remaining monies are paid to the interest owners.

I got served with a Partition Lawsuit Petition and Summons, What Should I Do?

It is important to answer the summons.  In this way your rights are protected.  There may be errors in the lawsuit petition.  For instance, the petition may incorrectly state your interest.  If you fail to object then you may be bound.  There are a number of procedural and equitable defenses that you may wish to use.  There are also strategies that you may want to undertake.  In any event, it is a complicated matter and the assistance of an attorney is vital to protect your interests.

 

Is There a Tax Advantage of  Partition in Kind over a Partition by Sale?

From a tax standpoint it may be more advantageous to have a Partition in Kind. If the property is sold at public sale there may be capital gains due.

 

Mineral Interests, Oil and Gas

While beyond the limited scope of this article.  Mineral interest can be partitioned.

Estate Planning and Family Business Succession Planning may help prevent the need for a partition in the future.

 

Oklahoma’s Partition Procedure is found at 12 Okla.Stat. §1501.1 et seq.

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