U.S. Supreme Court Rules Tax Foreclosure Sale Surplus Retention Unconstitutional

The elderly are often vulnerable to punitive home foreclosures.  The United States Supreme Court has handed down a decision ruling in favor of an elderly homeowner who lost her real property to a tax foreclosure action. The homeowner, 94-year-old Geraldine Tyler, failed to pay property taxes on her condominium for several years. Hennepin County, Minnesota seized the property through tax foreclosure. The county then sold it for $40,000, reimbursed itself for the approximate $15,000 she owed, and kept the $25,000 excess. A unanimous SCOTUS court ruled that the County violated the Takings Clause of the Fifth Amendment of the United States Constitution. It declined to rule on whether it also violated the Excessive Fines Clause of the Eighth Amendment. See Geraldine Tyler v. Hennepin County, Minnesota, et al., (U.S., No. 22–166, May 25, 2023).

The Court ruled that Hennepin County had the power to sell Ms. Tyler’s home to recover unpaid property taxes, but, it could not take more than it was due. The county’s action constituted a taking in which a government directly appropriates private property for its own use. The idea that government may not take from a taxpayer more than what is due is rooted in U.S. and other legal precedents going back hundreds of years. This is also consistent with the laws of 36 U.S. states and the federal government, which require that excess value be returned to the taxpayer. Hennepin County’s position, fortunately, constitutes the minority position.

Furthermore, this action by Hennepin County harmed Ms. Tyler. Although the tax lien sale extinguished other liens, she remained personally liable for remaining unpaid mortgage debt and HOA fees. If Ms. Tyler had received the $25,000 surplus, she would have been able to satisfy other debts.

The Court considered but rejected the county’s argument that Ms. Tyler abandoned her property by failing to pay her property taxes.  The Court found that Ms. Tyler did not surrender or relinquish all rights to the property. She could have continued to use the property for several years after falling behind on the taxes until the foreclosure process was complete. A failure to contribute to her share of taxes to the government is not equivalent to abandonment sufficient to avoid complying with the Takings Clause. The court reversed the judgment of the Eight Circuit Court of Appeals is reversed.

Two SCOTUS judges also published a concurring opinion addressing Ms. Tyler’s argument that the county’s actions violated the Excessive Fines Clause of the Eighth Amendment. They cautioned that lower courts should not ignore the issue. Actions such as those of Hennepin County may be subject to claims that they violated the Eighth Amendment, where a statutory scheme partially punishes a taxpayer, regardless of whether it is somewhat or primarily remedial. Minnesota’s tax-forfeiture scheme was not solely remedial and had punitive elements. As such, the concurring Justices contend that the Eighth Circuit committed a further error when it dismissed Ms. Tyler’s Eighth Amendment claim, and warned that future courts should not follow suit.

"Do It Yourself" Estate Plans Mean Risk

Attorney Virginia Hammerle has penned an excellent article, entitled, "Assuming Risk of DIY Estate Planning," for the Dallas Morning News, published online at WealthAdvisor. She writes: 

You can build an airplane all by yourself. Buy a kit or go online and download the instructions. A mere 1,400 work hours later, you should have a flying machine ready to carry you and your family into the wild blue yonder.

Aside from crashing and burning, what could possibly go wrong?

You can also do your own estate planning. Buy a set of forms or go online, download the documents, fill in the blanks and sign as indicated. A mere three work hours later, you should have documents ready to carry you through personal emergencies, sickness, dementia and death.

Aside from fiduciary theft, exploitation, guardianship, contested probate proceedings and having your wishes completely disregarded, what could possibly go wrong? [emphasis added]

We will find out. The Texas Supreme Court has just created do-it-yourself will forms.

More specifically, the court has approved four forms, categorized by type of personal situation: single with children, single without children, married with children and married without children. These are fill-in-the-blank documents. They come complete with definitions and instructions.  

The forms apply to only the most straightforward of situations. For example, the form for “single with children” presumes that you are currently single, have children and that, except for specified gifts, want to leave everything to your children in equal shares. If you want an estate plan that is more complicated, then this form is not for you.

The instructions are equally straightforward. If you make a mistake while filling in the will form, then you are instructed to rip it up and start all over again. You are instructed to fill in the information blanks either on the computer or by hand using the same pen to fill in the full form. There are several places in the form where you are directed not to “add, change or delete any words in Section …” with the explanation that the section is “needed for legal reasons.”

The legal reasons, unfortunately, are not explained in the document. You are left to do your own research.

The form contains only basic provisions, and there is no place to add anything else. Still, they are an improvement over what you usually find online, because the court’s forms contain Texas-required language to appoint an independent executor, self-prove your will and leave your entire probate estate to your named beneficiaries.

Fill it out accurately, follow the instructions and you should end up with a valid will, one that contains the bare minimum of language, and probably adequate if you have little or no estate and no family complications.

The forms can be found on the Texas Supreme Court’s website under Administrative Orders, Rules Advisories, 2023, Order 23-9022. The order was released on May 5, 2023.

If you are looking for other DIY planning forms, then visit Texaslawhelp.org. There you will find basic information on common legal issues and bare-bones forms for such things as powers of attorney and directive to physicians.

While you are researching and looking at forms, heed the warnings. The online documents are not a substitute for legal advice. They are suitable for only the simplest of estates and family situations.

You probably would never attempt to build your own plane. Even if you had the time, you likely lack the skill and knowledge. The price of failure is too high. Drafting your own estate planning documents is the same. You don’t want to crash and burn.

Of course, a bar association endorsing DIY planning begs the question, "Why?"  Aside from altruism in the form of a real desire to assist those who are able to help themselves but lack means to seek legal assistance (despite the availability of pro bono and legal aid services) there is self-interest:  busy lawyers are relieved from the burdens of turning away prospective clients unable to pay, and of taking on basic low return matters in favor of more lucrative representation, such as representing families and family members in cleaning up the spectacular mess that results when estate plans "crash and burn."  

For a real life example of how simple Wills can create problems, consider my prior blog article, "Simple Will- Complex Problems: Will Drafter Does Not Help In Case of Undue Influence."

I noted as I read the article online that there appeared an add for an online DIY Will form:

No doubt the Google Ad algorithm did not discern that the content was a warning against employing such strategies.  

For a more humorous take on the same subject, click here.

             

Shocking Claim- "Comatose People to be Declared Dead for Use as Organ Donors."

A recent article warns that proposed changes to medical standards regarding end of life determinations mean that, "Comatose People to be Declared Dead for Use as Organ Donors."  

The authors are Heidi Klessig, M.D.  a retired anesthesiologist and pain management specialist, and Christopher W. Bogosh, RN-BC, B.Th., a psychiatric mental health registered nurse and author, both observers to the Uniform Law Commission on the RUDDA, and contributors to respectforhumanlife.com. 

The authors have published the troubling article to American Thinker.  

The following is an excerpt from the article (a link to the full article follows): 

The law that redefined death in 1981, referred to as the Uniform Determination of Death Act (UDDA), is being revised.  The UDDA states that death by neurologic criteria must consist of "irreversible cessation of all functions of the entire brain, including the brainstem."  However, in actual practice, doctors examine only the brainstem.  The result is that people are being declared dead even though some still have detectable brainwaves, and others still have a part of the brain that functions, the hypothalamus.  Lawyers have caught on, pointing out in lawsuits that the whole brain standard was not met for their clients.  As a result, the Uniform Law Commission (ULC) is working on updates to the UDDA based on proposals from the American Academy of Neurology (AAN).

In the interest of preventing lawsuits, the AAN is asking that the neurologic criteria of death be loosened even further and standardized across the United States.  The revised UDDA is referred to as the RUDDA.  Below is the proposal drafted at the February session of the ULC, which will be debated this summer:

Section § 1. [Determination of Death]

An individual who has sustained either (a) permanent cessation of circulatory and respiratory functions or; (b) permanent coma, permanent cessation of spontaneous respiratory functions, and permanent loss of brainstem reflexes, is dead. A determination of death must be made in accordance with accepted medical standards.

Notice that the new neurological standard under (b) does not use the term "irreversible," nor does it include the loss of whole-brain function.  The term "permanent" is being defined to mean that physicians do not intend to act to reverse the patient's condition.  Thus, people in a coma whose prognosis is death will be declared dead under this new standard.  An unresponsive person with a beating heart on a ventilator is not well, but he is certainly not dead!  The Catholic Medical Association and the Christian Medical and Dental Association have written letters to the ULC protesting these changes.

In addition, the AAN proposes that there be no requirement for informed consent before initiating brainstem-reflex testing.  One of the tests is called the apnea test.  During this exam, the patient is removed from the ventilator for 8–10 minutes, attempts to breathe are monitored, and carbon dioxide in the blood is measured.  This test has absolutely no benefit for the patient.  It can only cause harm, as rising levels of carbon dioxide in the bloodstream cause an increase in intracranial pressure, which is hugely detrimental for a brain-injured patient.  The idea that there will be no informed consent requirement for this potentially harmful exam violates the ethical principles of autonomy, justice, beneficence, and non-maleficence.

The UDDA has been controversial since its inception in 1981, and experts on both sides of the issue admit that it has serious flaws.  Most notably, organ donors declared dead under its criteria are, in fact, still alive.  The heart beats, lungs exchange oxygen and carbon dioxide, kidneys produce urine, livers remove toxins, children go through puberty, pregnant women gestate babies, hair grows, and in many cases the brain and body communicate to regulate life-sustaining functions.  Organ donors declared dead under the UDDA do not meet the Dead Donor Rule (DDR) and are exploited for body parts.

In 2018, Harvard Medical School hosted "Defining Death."  At this watershed medical conference about "organ transplantation and the 50-year legacy of the Harvard report on brain death," the experts determined that the UDDA was not true to a biological definition of death and the DDR was violated as a result.

These revelations about UDDA and DDR inconsistencies are not new.  In the 2008 affirmation of the UDDA, "Controversies in the Determination of Death: A White Paper by the President's Council on Bioethics," the chairman, Edmund D. Pellegrino, M.D., pointed this out.  "Ideally," he wrote in his minority dissent, "a full definition would link the concept of life (or death) with its clinical manifestations as closely as possible," and the UDDA does not satisfy these objective findings.  He stated: "The only indisputable signs of death are those we have known since antiquity, i.e., loss of sentience, heartbeat, and breathing; mottling and coldness of skin; muscular rigidity; and eventual putrefaction as the result of generalized autolysis of body cells."

ULC commissioner James Bopp, National Right to Life Committee, argues that people declared dead under the neurologic criterion of the UDDA are entitled to the same protections as unborn babies.  He states these are an "identical debate, just a different context."  Thus, those who vigorously defend life as starting at conception (i.e., at the level of cells) are inconsistent when they accept the UDDA whole-brain definition of death.

In May of 2021, Alan Shewmon, M.D. and 107 experts in medicine, bioethics, philosophy, and law recommended that the UDDA be revised but stated that the RUDDA was not the way to do it.  Shewmon has documented 175 cases of people meeting the neurological standard for death who continued to live on, some for over twenty years.  He has also reported and testified in court on behalf of "brain-dead" children, most notably Jahi McMath.  Although legally dead in California, Jahi experienced puberty, which requires brain and body interaction, and even started to recover before she received her second death certificate five years later.  Many have even recovered and have gone on to live normal lives after a diagnosis of "irreversible cessation of all functions of the entire brain, including the brain stem." 

The ULC solicits expert opinions and suggestions on the proposed changes to the UDDA.  We believe that the changes being proposed to the UDDA will only benefit transplant stakeholders at the expense of the rights of patients and families.  Declaring a comatose, brain-injured patient dead to be able to harvest his organs is an issue of concern to every American, especially since roughly 170 million people are registered as organ donors (see "Cherish Your Life! DON'T Be a Registered Organ Donor").  Shewmon put it best: "Just as cigarette ads are required to contain a footnote warning of health risks, ads promoting organ donation should contain a footnote along these lines: 'Warning: it remains controversial whether you will actually be dead at the time of the removal of your organs.'"  The public deserve a voice at the table before a law is passed that takes away their right to life.

You can read the article here.

Note: Monty L. Donohew has contributed article to American Thinker, several of which have been published.  It is the experience of Monty L. Donohew that the author writes the article's title.

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Biden Administration Targets Nursing Home Quality and Aging in Place Alternatives

President Joe Biden’s second State of the Union (SOTU) address Tuesday night included mention of the Administration's efforts to make nursing homes safer for seniors.  In addition, the White House indicated Monday it intends to put even more more pressure on providers.

“We’re protecting seniors’ life savings by cracking down on nursing homes that commit fraud, endanger patient safety and prescribe drugs that are not needed,” Biden trumpeted during the SOTU. The 12-second mention was in direct reference to the administration’s January 18 announcement that the Centers for Medicare & Medicaid Services (CMS) would soon implement targeted audits to determine whether providers are properly assessing and coding patients with a schizophrenia diagnosis. The reasons for these actions are well explained in the following articles available on this blog:

The agency also announced at that time that it will begin publicly displaying disputed survey citations even before their merit is proven or disproven, which no doubt frustrates the industry.  Advocates welcome the transparency, particularly given the historically poor record of CMS enforcement, and poor relationship between ratings and actual quality of care.  See the following: 

The nursing home declaration Tuesday came 36 minutes into a 73-minute speech before a joint gathering of Congress, Supreme Court justices, military leaders and other top federal figures.  You might remember that in his 2022 State of the Union, President Biden was more explicit about his intention to hold certain elements of the long-term care sector to account:

“Medicare is going to set higher standards for nursing homes and make sure your loved ones get the care they deserve and that they inspect and will get looked at closely.” 

He also then promised accountability for “Wall Street” firms that take over facilities and don’t maintain high standards and quality.  The 19-second SOTU mention was believed to be the "most extensive mention of nursing homes" ever in a State of the Union.  The White House released an expansive 21-point reform plan that, today, remains a work in progress. 

Biden’s 2023 SOTU nursing homes mention was hardly as controversial as his last a year earlier. The centerpiece of the previously announced reform effort was a promised first-ever nursing home staffing mandate. See, "White House Announces Measures to Improve Nursing Home Care Quality. Staffing shortages threaten health, and frustrate seniors in planning quality care.  See, Home Health Care Staff Shortages Threaten Health- Frustrates Aging in Place.

A newly developed detailed proposal, feared by many nursing home operators already struggling with staffing, may be released at any time. Recently, an administration official announced that a study encompassing provider interviews and projected cost implications is now complete and strategies are being considered.

 All administrations are duty-bound to crack down on fraudulent activities conducted by nursing home operators, as well as any committed by other healthcare and non-healthcare entities that accept federal funding.  In addition to several high-profile regulatory actions announced by CMS over the last year, the Department of Justice on Tuesday announced that a record $2.2 billion had been recovered via False Claims Act involving nursing homes, and many others.

The White House also issued a new White House Fact Sheet, including a section labeled “Improving safety and accountability in nursing homes” indicating that more regulatory belt-tightening will be coming for nursing homes:  

“As the President directed in last year’s State of the Union, CMS has taken action to strengthen oversight of the worst performing nursing homes, prevent abuse and Medicare fraud, and improve families’ ability to comparison shop across nursing homes. In the coming days and months, CMS will announce new actions to increase safety and accountability at nursing homes.”

On Tuesday night, Biden also urged lawmakers to adopt his upcoming budget plan to pay for more services for seniors in their homes:

“Pass my plan so we get seniors and people with disabilities the home care and services they need, and support the workers who are doing God’s work. These plans are fully paid for and we can afford to do them.” 

The centerpiece of the Trump Administration's effort to encourage and support aging in place focused on Advantage Plans, and expanding availability of alternatives to institutional care outside of traditional Medicare and Medicaid.  A  shift in focus on Medicare, the mechanism that the vast majority of seniors use to pay for  health care, is positive and welcome.  It is long past time for Medicare to take responsibility financially for providing alternatives to institutional care, and for expanding these alternatives where they do not yet exist.  

Conservatorship and Guardianship Abuse Awareness Day

February 1st is "Conservatorship and Guardianship Abuse Awareness Day," a day to raise awareness about the potential abuses of power that can occur within the guardianship system.

Adult guardianship is an intervention, intended to be a tool of last resort, that can transfer most of an adult’s fundamental rights to another person, usually called a guardian or conservator. Courts appoint guardians to protect adults from abuse, neglect, and exploitation when the adult’s cognitive and physical capabilities are impaired by disability or illness. 

In some cases, however, the court process is and guardians themselves are abusive, trampling over a person's rights, and often subjecting that person to the very risks appointment of a guardian is supposed to prevent.  Guardianship abuse (utilizing or threatening to utilize the guardianship system to control or compel a senior) and  abusive guardians (guardians that threaten the physical and financial well-being of a senior) are common villains in stories of helpless seniors institutionalized against their will.  Many of these stories are curated by the National Association to Stop Guardian Abuse (NAGA).  The recent, high-profile case of Britney Spears has served to focus national attention on this type of abuse of power. There are still many other cases, however, particularly involving older adults that go unnoticed, unpublished, and unaccounted for in the modern legal, health care, and social system that struggles with, and sometimes against, reform. 

The National Center on Law and Elder Rights (NCLER) provides legal services and aging and disability communities with the tools and resources to serve older adults with the greatest economic and social needs. A centralized, one-stop shop for legal assistance, NCLER provides Legal Training, Case Consultations, and Technical Assistance on Legal Systems Development. Justice in Aging administers NCLER through a contract with the Administration for Community Living’s Administration on Aging. Lawyers, families, and aging service professionals can utilize NCLER and partner resources to learn more about guardianship abuse, how to spot it, how to avoid unnecessary guardianships in the first place, and how to terminate abusive or unnecessary guardianships as soon as possible.

NCLER has published the following resources and a toolkit.

• NCLER: Legal Basic: Overview of Guardianship and Alternatives to Guardianship (Recording, Chapter Summary, PowerPoint)
• NCLER: When the Guardian is an Abuser (Webcast, Issue Brief and Checklist)
• NCLER: Elder Justice Toolkit
• NCLER: Using Decision Supports to Avoid Guardianship (Recording, Chapter Summary, PowerPoint)
• NCLER: Using Alternatives to Guardianship to Defend Against or Terminate Guardianship (Recording, Chapter Summary, PowerPoint)
• NCLER: Guardianship Termination and Restoration of Rights (Recording, Chapter Summary, PowerPoint)
• National Center on Elder Abuse: Guardianship: Remedy vs. Enabler of Elder Abuse

This blog contains several articles addressing the risk of guardianship in estate planning, including, but not limited to, the following: 

• Guardian Lawfully Refused Family's Request to Remove Ward from Nursing Home Amidst Pandemic;
• Guardianship System Leaves Most Vulnerable Unprotected;
• GAO reports on Guardianship Abuse;
• Hospitals Cause or Facilitate Abusive Guardianships;
• Guardianship Reform Helps, but Planning Shouldn't Wait;
• Contesting Guardianship or Challenging Guardians Is Problematic;
• Estate Plans Should Consider and Attempt to Resolve Guardianship;
• Illinois Permits Guardian Authority to Petition for Termination of a Ward's Marriage;
• Why One Woman Has Spent 5 Years in a San Diego County Jail With No Trial, and Why it Matters.

Guardianship is a risk that is best managed by a modern estate plan.  Most importantly, it is possible, with a revocable trust, to keep the trust assets out of the control of a court-appointed guardian.  Such planning protects your rights, decisions, and decision-making, protects a healthy spouse from abuse, conserves and protects the assets of the estate from plunder, and most importantly serves to disincentive court-appointed fiduciaries like guardians.  If this type of planning interests you, call an estate planning attorney experienced with trusts or an elderlaw attorney.