Posts Tagged ‘Arkansas’

Despite Guardianship, Ward May Have Capacity to Marry

MAY 2, 2011 VOLUME 18 NUMBER 16
We have written in previous installments about differing state laws regarding the ability of a guardian (of the person) or conservator (of the estate) to file a divorce proceeding “for” an incapacitated adult. The question that comes up more often from our clients is a little different, though. In its most direct form, it might be phrased like this: “if I get a guardianship over my demented mother, will that prevent her from getting married without my permission?”

The exact dimensions of the question, of course, vary with each asking. Sometimes there is familial anxiety about a late-life romance blooming in the assisted living facility or nursing home where a parent has been placed. Sometimes the concern is over a developmentally disabled 17-year-old about to acquire, at least theoretically, the legal right to make foolish decisions. Sometimes the question is focused on a particular dangerous suitor, and sometimes it is more generalized.

The short answer to the question: the mere fact of a guardianship probably will not prevent the ward from getting married, or the marriage from being determined to be valid. The level of capacity required to enter into a marriage agreement is not exactly the same as the level of capacity required to make one’s own placement or medical decisions — or even to enter into other kinds of contracts. But the facts underpinning the guardianship proceeding are likely to be the same facts utilized in any later challenge of the validity of a marriage.

Take the recent example of Christopher C. Oakley, who lives at Lamplight Village, an assisted-living facility in West Plains, Missouri. Mr. Oakley suffered a childhood traumatic brain injury in 1986, and has required supportive assistance with bathing, housekeeping and personal care ever since. His father was apparently appointed as guardian of his person in a Florida proceeding in 1995. A professional fiduciary was appointed as conservator of Mr. Oakley’s estate at the same time, and continues to manage the proceeds from settlement of a personal injury lawsuit filed in connection with the original accident.

As Mr. Oakley reached his early 20s he became involved with Melissa Warren, another resident of Lamplight Village. She, too, had a guardian and conservator — the Howell County, Missouri, Public Administrator was appointed to handle her finances, medical and placement decisions after the probate court determined that she was unable to do so herself.

In 2006 Mr. Oakley and Ms. Warren decided they wanted to get married. They each asked their respective guardians for permission, and both refused. They then had a friend drive them to a neighboring state, where they were married. Upon their return they began to live together in a shared apartment at Lamplight Village, and they identified themselves as a married couple.

The two guardians responded quite differently. The guardian for Ms. Warren (now Mrs. Oakley) did not initially approve, but sat down with the couple and discussed what they had done. The guardian decided that they really did want to get married, that they understood the emotional and financial meaning of their decision, and that the marriage should be allowed to stand. In fact, she told the judge, if the marriage was annulled she would intend to immediately file a petition to secure court approval for a new marriage.

Mr. Oakley’s guardian reacted to the news of the wedding by filing a petition to have the marriage annulled. He argued that his original Florida guardianship was based on a finding that his son was incapacitated, and that the marriage therefore was invalid in the first place. In testimony, he explained himself by asking, rhetorically: “what happens if he decides ten years from now that if somebody else — another girl comes into his life and it’s better and bigger and everything than what he had?” He also filed a Missouri guardianship proceeding, which was granted while the annulment proceeding was pending.

The judge hearing the annulment petition denied Mr. Oakley’s father the relief he sought. The fact of a Florida guardianship, reasoned the judge, did not prevent the ward from having the capacity to understand the meaning and effect of marriage. Neither did the fact that his intellectual functioning was well below “normal” intelligence, with an IQ estimated at about 70.

The Missouri Court of Appeals agreed, and allowed the marriage to stand. The burden of proving that Mr. Oakley lacked capacity to marry was on his guardian, ruled the appellate judges, and he had failed to carry that burden. The existence of a Florida guardianship was not adequately shown, and neither was the effect of that order. The evidence considered by the trial judge was sufficient to support his finding that Mr. Oakley, despite any guardianship order, understood the nature and effect of marriage well enough to enter into this most personal of contractual arrangements.

There are a number of other interesting side-issues involved in Mr. Oakley’s marriage annulment proceeding. At least, they are interesting to lawyers — everyone else might find them less bracing. One such issue: the lawyers, the trial judge and the appellate judges all agreed that Mr. Oakley’s capacity to marry should be assessed under the law of Arkansas, where the marriage took place, rather than the law of Missouri, where the couple lived and the legal action was filed. Meanwhile, Mr. Oakley’s father insisted that the law of Florida should govern the question of whether a ward automatically loses all capacity to marry upon the appointment of a guardian; that argument was lost, however, when the Missouri courts decided that he had not proven the existence of a Florida guardianship as required by Missouri law. In Re Marriage of Oakley, April 27, 2011.

Arizona Legislature Changes Format For Beneficiary Deed

APRIL 3, 2006  VOLUME 13, NUMBER 40

Five years ago the Arizona Legislature adopted an interesting new law. Modeled on a similar law in Missouri, the “beneficiary deed” statute permitted property owners to designate who would receive their property on death—much like a “payable on death” bank account. Now the state legislature has revisited beneficiary deeds, and made them even more flexible and useful.

One unanswered problem arose a handful of times under the previous law. What would happen if a person named to receive property by a beneficiary deed died before the original property owner? If, for example, a parent signed a beneficiary deed to “my two children, John and Mary,” and Mary died before the parent leaving children of her own, did that mean that her children would receive her share, or that son John would own the entire property on the parent’s death?

Effective this fall (the date is not yet set and won’t be known until the legislature adjourns) beneficiary deeds can solve that problem. Under a law signed by Governor Napolitano on March 24, 2006, all new beneficiary deeds must include a paragraph indicating which of two choices the owner prefers. The language required by the new law:

If a grantee beneficiary predeceases the owner, the conveyance to that grantee beneficiary shall either (choose one):

[] Become null and void.

[] Become part of the estate of the grantee beneficiary.

There are still a number of important issues to remember in the use of beneficiary deeds, and it will not be appropriate in every case to use this approach to transfer property. With some of the following limitations in mind, however, it may be that the beneficiary deed is a simple, inexpensive and useful method to avoid probate, especially in small estates. Among the remaining limitations for beneficiary deeds:

  • They are not available in every state. As of this writing, only Arizona, Arkansas, Colorado, Kansas, Missouri, Nevada, New Mexico and Ohio permit the use of beneficiary deeds.
  • An individual using a beneficiary deed will need to coordinate his or her estate plan as to multiple assets—it may, for instance, be necessary to keep track of beneficiary designations on multiple properties, several bank accounts, and a number of insurance policies and brokerage accounts. Anyone with more than a handful of assets should probably consider a living trust instead.
  • A beneficiary deed can be changed by a surviving owner, so in the case of a husband and wife (for example), the final distribution is not set until the second death.
  • The beneficiary deed provides no estate tax planning benefits for larger estates.

And what about individuals who signed an Arizona beneficiary deed before the new law was passed? Nothing in the law requires them to change their deeds, but they would be well-advised to consider updating the language to clarify what would happen if a beneficiary died before them. For those who might sign a beneficiary deed between now and the effective date, the best approach is less clear. Both the existing law and the new version require that beneficiary deeds be “substantially in the following form”—and then the form changes. Our advice: if you plan on signing an Arizona beneficiary deed in the next few months, expect to sign an updated version this fall.

LPNs Awarded Damages In Wrongful Termination Case

APRIL 26, 2004 VOLUME 11, NUMBER 43

When LPNs Diane Owens and Alisa Main were fired from their jobs with Fayetteville Health and Rehabilitation Center in April, 2000, they were sure their dismissals were retribution. Ms. Owens and Ms. Main had each complained to Kristy Unkel, the Director of Nursing, about the care provided by several certified nurse assistants (CNAs) at the facility. Ms. Owens had even lodged a complaint with the Office of Long-Term Care about what she saw as abuse and neglect of Fayetteville patients.

At least six CNAs had signed a letter to the nursing home administrator, in which they insisted that Ms. Owens created a difficult work environment for them. The CNAs also claimed that Ms. Owens and Ms. Main had themselves abused and neglected patients. According to the CNAs’ complaints, Ms. Owens had failed to document one patient’s fall and fractured hip, and Ms. Main missed a patient’s scheduled medication and spoke harshly to another resident.

One problem with the CNAs’ allegations was that work schedules made their version of the facts difficult to believe, since Ms. Owens had not even signed to work on the day of the patient’s fall. The CNA accusing Ms. Main of missing a patient’s medication was not signed in to work on the date of that alleged incident.

Ms. Owens and Ms. Mains sued Fayetteville and Ms. Unkel, the Director of Nursing. They alleged that they were discharged in retaliation for their complaints, and that their reputations were injured by the false allegations on which the firings were based.

After four days of testimony an Arkansas jury found in favor of Ms. Main and Ms. Owens. The jury awarded damages totaling $332,740 to the two LPNs. The Arkansas Supreme Court upheld the award.

Fayetteville had argued that it had a duty to report allegations of elder abuse, and that it could not be sued for incidents related to its reports against Ms. Owens and Ms. Main. The problem with that theory, ruled the state’s high court, was that the jury had found that Fayetteville did not act in good faith when it filed reports.

The facility also argued that Ms. Owens and Ms. Main were “at-will” employees, and could be fired for any reason or no reason at all. The high court pointed out that public policy considerations require protection for individuals who report abuse or neglect of vulnerable seniors, and employers may not retaliate against employees for such reports. The jury found that the firings were retaliatory and the high court agreed. Northport Health Services v. Owens, April 8, 2004.

As it turns out, Fayetteville’s problems with claims of inadequate care have continued since the firing of Ms. Owens and Ms. Main. In November of 2000–less than a year after Ms. Owens and Ms. Main were discharged–Fayetteville fell so far below the level of care required by the Medicare program that civil penalties were imposed and the facility was denied payment for new Medicare admissions for a two-month period.

Fayetteville’s problems included failing to notify two residents’ physicians about emergency medical conditions, and failure to protect one resident from the possibility of inappropriate administration of medication by a visiting family member. The ruling of the Administrative Law Judge in Medicare’s action against Fayetteville is available online at http://www.hhs.gov/dab/decisions/CR1050.htm. More recent information (still not encouraging as of the most recent survey date) is synopsized on the MemberOfTheFamily.Net website, which includes state-by-state and facility-by-facility information on nursing home survey results.

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