Posts Tagged ‘Hartford Insurance’

Driving, Aging and Dealing With Family Dynamics

APRIL 1, 2013 VOLUME 20 NUMBER 13
Driving. It’s an issue for seniors. And their families.

According to the Centers for Disease Control, drivers over age 75 are at particular risk for fatal accidents, and that risk continues to grow as those older drivers age. The CDC is candid: it’s hard to tell how much of that is related to increased frailty and susceptibility to injury, and how much is the result of worsening vision and slower reaction times. Ultimately, though, it doesn’t really matter: fatality rates are much higher for older drivers (on a per-mile-driven basis) than even for brand-new drivers under age 20.

When is it time to stop driving, and who is best able to tell the time has arrived? Or are those even the right questions to be asking? If you have an older family member, or you are aging yourself (yes, we know that that includes every reader), then you should be concerned about the issue. Fortunately, there is some help available.

First, let’s wrestle with what may be the biggest problems in encouraging a senior to drive less, or to stop driving: there is plenty of emotion and psychology involved, and there are too-few alternatives. It is seldom good enough to just insist on your parent or spouse giving up the car keys. You need to consider the problem from their perspective.

In our modern American culture, we tend to identify with our automobiles. I may favor a flashy, brightly-colored muscle car; you may prefer a solid, responsible and reliable set of wheels. My brother, on the other hand, might be a nut about saving gas. All three of us are making statements about our interests, preferences and personalities when we pick out a car. There is little else which says so much about us and simultaneously provides so much freedom.

So if you think I ought to stop driving, I am going to be very resistant. At root, my objections might be very practical — it’s too hard to get errands done, I don’t want to rely on anyone else, I’m not really driving that much any more anyway — but those objections will be more forceful because you are getting too close to my sense of self.

Before you tackle restricting the driving of an aging family member, it would be wise to review the arguments, prepare some strategies, and figure out what has worked for others. The good news: there are several good resources to help you with that project.

Let’s start with the AARP, which has done extensive work on driver safety and education. The AARP’s focus on aging drivers is unsurprising, but you may be surprised at how well they have analyzed the issue and how much material is available. Start with the online seminar called “We Need to Talk.” It will take about an hour (a little more if you stop along the way to scratch out questions or approaches, or if you re-review some sections). You may be surprised at how well it helps prepare you for your talk with a family member about your concerns.

Maybe what you really want is a review of driving skills, or a refresher course with emphasis on abilities that change over time. The AARP has some help there, too — it offers a link to driver safety courses for seniors. A quick check as we wrote this found three courses within a few miles of the Fleming & Curti, PLC, offices scheduled in the next month. Plus there’s an online version of the course, too.

Maybe you’re past this point with your family member. Can you disable the vehicle, force a review of their driving ability, or take stronger action? Yes, but first look at two publications produced by AARP, MIT’s AgeLab and The Hartford Insurance Company. One, “We Need to Talk,” is the basis for the AARP seminar described above. You can also order printed copies if you want to leave one lying around, or share with siblings or other family members. Copies are free, and you’ll get them in the mail in just a couple of days. While you’re online, you might also download or order “At the Crossroads,” another excellent resource offered by the same consortium.

Arizona drivers’ licenses are valid until age 65 without retesting (you do have to have your picture taken at least every twelve years or so). After 65 a driver has to take a vision test at least every five years, but there is no automatic retest for driving ability.

There is, however, one way to get a family member retested: any one who is concerned about driving ability can request a review for a family member, neighbor, patient or client (many of the requests are filed by doctors and other medical and social service professionals). You can initiate a review by filing a form 96-0469 with the Motor Vehicle Division; after looking at your description, MVD may require a doctor’s report and/or a driving test.

Are you worried about the possibility that you might cause this kind of concern, and force your own children to take similar steps? We have one suggestion for you to head off a similar scenario for your own future: talk to your family, and maybe even consider signing an agreement with your family about driving. You can give someone — perhaps the same person you name as agent on a health care power of attorney, perhaps someone else — instructions to tell you when you need to stop driving, and the power to take steps to stop you from putting yourself and others at risk.

The reality: such an agreement probably has no legal validity. But it could give your chosen family member the moral and psychological power they need to tackle a very difficult problem when you are unable to make the decision for yourself. At Fleming & Curti, PLC, we include such a power in most of our health care powers of attorney; if you would like to sign an agreement on your own, there’s one in the back of the “At the Crossroads” booklet described above. There is also a separate copy of such an agreement on The Hartford’s website; you can download it, review it and sign it on your own. But we really favor talking with your family about it.

A final thought: at least once a week or so, we have a client tell us “I’ll be the first to know when I need help.” Sadly, that has not been borne out by our experience at all.

“Joint Control Agreement” Leads to Lawyer’s Liability

JUNE 15, 2009  VOLUME 16, NUMBER 44

Tranquilino Ventura was a child when his father died, and just fourteen years old when a lawsuit arising from his father’s death was settled. The total settlement, after costs and fees, exceeded $500,000. When Mr. Ventura turned eighteen he found out that the money was all gone.

Mr. Ventura’s mother, Patricia Dutton, had been appointed conservator by an Alabama probate judge. The judge had ordered that she post a $620,000 bond to secure her proper management of the money, and then given her authority to handle her son’s lawsuit proceeds. Over the next four years she apparently managed to lose much of it in poor stock investments.

There were other questionable uses of the money. Ms. Dutton bought her son a BMW automobile for his sixteenth birthday, and paid for polo lessons and a polo pony. She also loaned $120,000 of her son’s money to her parents, who lost those funds in several schemes involving auto and mobile home sales.

After Mr. Ventura discovered that his money was gone, he brought suit against a number of individuals and organizations. He sued Hartford Insurance, who had issued the bond assuring that his mother would manage the money properly. He also sued the lawyer who had represented his mother, Billie B. Line, Jr., and two brokerage houses that had each handled a portion of the conservatorship money.

Mr. Ventura’s case has made its way to the Alabama Supreme Court twice in the seven years since he reached his majority. The first case, Edward D. Jones & Co. v. Ventura, was decided in 2005. It stands for the proposition that the mandatory arbitration agreements contained in almost all brokerage new account forms can bind the ward even though signed by a conservator. But the more interesting case was decided just last month.

Mr. Ventura secured a $500,000 judgment, plus interest, against his mother, and sought to collect the money from Hartford Insurance, which had (after all) promised to pay off on any claims against the conservator. Hartford, however, wanted to raise another argument. It had gotten Ms. Dutton’s lawyer (Mr. Line) to sign a “joint control agreement,” in which Mr. Line agreed to personally oversee Ms. Dutton’s management of the money — and to sign every conservatorship check that might be issued.

Joint control agreements are popular among bonding companies, and less so among lawyers. The idea is that, since the attorney has some responsibility to monitor the estate anyway, the bonding company can leverage that responsibility into more protection on its bond. It may be hard to see how this works to the lawyer’s benefit, but some insurance agents even hold the joint control agreement out as a boon to lawyers.

Whether or not it was a smart decision for Mr. Line to agree to the joint responsibility, he did. By his signature he actually became an agent of Hartford Insurance. So what did he do next? Mr. Line then signed a number (somewhere between 50 and 150 — the testimony was unclear) blank checks for Ms. Dutton, and let her take over management of the money.

Mr. Line’s failure to monitor the conservatorship went further than that, however. He borrowed $5,000 from Mr. Ventura’s assets himself to make a down payment on a house in Reno, Nevada. Later he and Ms. Dutton would agree that could be a part of his fees, along with another $4,000 he received from the estate.

Although the probate judge had ordered Ms. Dutton to post an additional $120,000 bond, Mr. Line never saw to it that the extra bond was posted. When the judge scheduled an accounting two years into the conservatorship, Mr. Line failed to get it filed and instead asked for dismissal of the guardian ad litem, the attorney who had been appointed to represent Mr. Ventura’s interests. The probate judge declined to grant his request, but Mr. Line later testified that he did not get the judge’s order, and he never prepared an accounting or appeared for the hearing scheduled in the probate court.

Before trial Mr. Ventura settled with Hartford Insurance on the claim against the bond issued to Ms. Dutton, and that meant the trial proceeded with Hartford moved from the “defendant” category to “plaintiff.” Testimony at the trial indicated that Mr. Ventura’s estate should have been worth in excess of $920,000, even if some of Ms. Dutton’s expenditures had been approved.

The jury awarded $200,000 in actual damages against Mr. Line, and another $550,000 in punitive damages. The Alabama Supreme Court ruled that Mr. Line had undertaken a fiduciary relationship not only with his client, Ms. Dutton, but also with Hartford Insurance and with Mr. Ventura. In these facts, and given the magnitude of Mr. Ventura’s loss, the court had no trouble upholding the judgment. Line v. Ventura, May 22, 2009.

Footnote: on February 8, 2008, Mr. Line filed a Chapter 7 bankruptcy petition. It is not yet clear whether Mr. Ventura or Hartford Insurance will receive all or any significant portion of their judgment.

What can we glean from the story of Mr. Ventura, Ms. Dutton, Mr. Line and Hartford Insurance? Several points:

  • If a lawyer is willing to sign a “joint control agreement,” he or she should do so with eyes wide open  and the lawyer needs to treat the agreement seriously and actually monitor his or her client’s actions
  • In any case, agreement or no agreement, a lawyer who ignores his client’s failure to handle conservatorship funds subjects himself or herself to personal liability for that failure
  • If there is any question about the ability of a family member — even a trusted and loved family member — to handle fiduciary responsibility, it is better for the ward, for the bonding company, for the court and ultimately for the lawyer if a professional fiduciary is selected instead.
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