Undue Influence and Vulnerable Adults

(Paperback)

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Description

Age-related issues, including diminished capacity, can be a significant indicator of the potential vulnerability of a client to undue influence, and also an indicator that our population as a whole is aging. Elder abuse has been called "the crime of the 21st century." Undue influence is a form of financial abuse of the elderly, with the large number of reported cases and estimated $1.17 billion in damages just the tip of the iceberg.

Looking at the topic from a legal perspective, Undue Influence and Vulnerable Adults addresses both the role and the importance of the attorney when representing a vulnerable adult. The books authors, who each command extensive experience in the area, explain the relevant considerations and provide strategies when litigation is required. Their practical and legal advice on issues will assist planners identify issues and then create effective plans for vulnerable adults that may better withstand attack.

Undue Influence and Vulnerable Adults also helps readers understand the options and potential consequences of proactive waivers and permissions for release of information as well as the potential importance of being able to initiate contact with family or other trusted advisors when concerns about capacity and/or undue influence subsequently arise. In addition, the authors provide strategies from a litigation perspective on handling efforts to invalidate as well as defend instruments claimed to be the result of undue influence.

Table of Contents
Preamble
Introduction
Chapter 1: Ethical Considerations When Representing Vulnerable Adults
Chapter 2: To Understand Undue Influence, One Needs to Understand Capacity
Chapter 3: What Is Undue Influence
Chapter 4: Evidence of Undue Influence
Chapter 5: Fraud and Duress Are Different Than Undue Influence
Chapter 6: The Presumption of Undue Influence
Chapter 7: Rebutting the Presumption
Chapter 8: No-Contest Clauses and the Importance of Probable Cause
Chapter 9: A Litigation Perspective
Chapter 10: Using Experts and Understanding the Medical Evidence
Chapter 11: The Attorney-Client Privilege
Chapter 12: Video Recording, Electronic Wills, and Remote Witnessing and Notarization
Index

Reviews

"Compelling", "page-turner," "essential" are not words often used in reviews of legal texts. But the subject of this resource - protecting vulnerable clients - and the vast number of individuals who already or are likely to fall within the scope of abuse and/or undue influence - make owning this book a "must" for all financial services professionals. As the authors point out, "When the consequences of mistreatment go beyond financial loss and can trigger a downward spiral leading to loss of independence, serious complicating illness, and even death," you clearly need to know more about your ethical, legal, and duties toward those of diminished mental, emotional, or physical capacity. Undue Influence and Vulnerable Adults is exceptionally well-written, comprehensive, well-cited, and highly practical.--Stephan M. Leimberg, Publisher of LISI (Leimberg Information Services, Inc.)
As financial abuse reaches epic proportions, Undue Influence and Vulnerable Adults is required reading for every attorney: From practical advice about protecting vulnerable clients to valuable tips to safeguard your practice, this book is a must-read from top practitioners whose prowess I have had the privilege of witnessing first-hand.--Sharon L. Klein, President, Family Wealth, Eastern US Region, Wilmington Trust, N.A., Wilmington Trust, N.A.
This book is an outstanding resource that every attorney involved in estate planning, as well as allied professionals that serve aging, infirm, chronically ill or others who could be subject to abuse or undue influence, must read. While brilliantly written to address issues that attorneys must understand, financial advisers, trust officers, even care managers will all benefit from the wisdom between these covers. This book is easy enough to read so it can serve as a resource for a new estate planning attorney to gain an understanding of the myriad of nuances and ancillary issues affected by undue influence. It is also sufficiently detailed and well researched so that it can serve as a reference for the practitioner. The authors bring the expertise and personal experience of both estate planners and litigators to provide practical insights to this vital topic covering ethical rules, attorney client privilege, no-contest clauses, and much more.--Martin M. Shenkman, Martin M. Shenkman, PC
This is an excellent resource, not only for litigating estate issues, but also for estate planners who may need to defend their work product. This book warns of significant red flags, hazards and pitfalls that can upset estate plans when the planner is not cognizant of the ways an estate plan can be challenged. It is a thorough presentation of the critical issues that can be expected to arise in estate litigation and recites all the issues I saw during my 25 years as a probate judge handling challenges to estates. It is also a roadmap for practical ways estate plans can be challenged as well as defended. It would have been helpful to me if this book had been written while I was still hearing cases.--Honorable Milton L. Mack, Jr.

Author Bio

Sandy is an equity shareholder in Lipson Neilson, P.C.'s Bloomfield Hills, MI office. She concentrates in probate litigation, estate planning and administration and family law. She is active in the OCBA, having held numerous leadership positions and is currently a member of RPTE's Diversity and Inclusion Committee, is the vice chair of the Elder Law and Long-Ter Care Committee and remains active with RPTE's TE CLE committee and a Commissioner to the Commission on Law and Aging. She is a nationally recognized author in legal publications and has presented nationally on issues such as undue influence, ethical duties owed to vulnerable adults, defending fiduciaries, and the attorney client privilege. She has also co-authored the update to the Bloomberg Tax Porffolio on Divorce and Separation. She was awarded the OCBA's Distinguished Service Award, and has received "Top Lawyer", "Super Lawyer", "Leading Lawyer" and AV Preeminent attorney designations. She was awarded the Trust & Estates Magazine 2018 Distinguished Author in Thought Leadership and Bloomberg Tax's 2018 Estates, Gifts and Trusts Tax Contributing Author of the Year Award. She is an advisor to the Notre Dame Tax and Estate Planning Institute, is on the editorial advisory board for Trust & Estates Magazine, has a AEP certification, is a fellow of Litigation Counsel of America, and is co-author of the ABA Book "Undue Influence and Vulnerable Adults". Thomas M. Dixon is an experienced trial lawyer, and he heads Clark Hill, PLCs Litigation Practice Group firmwide. Tom specializes in will, trust, estate, and probate litigation, and in complex commercial litigation. Tom has been continually recognized as a Michigan Super Lawyer in Best Lawyers in America, a Top Lawyer in Crains Detroit Business, and a Top Lawyer in DBusiness Magazine. Tom also has received an AV Preeminent rating from Martin- dale-Hubbell. Tom has litigated cases involving wills, trusts, and probate estates, including cases involving claims of undue influence, lack of testamentary capacity, fraud, and duress. Tom has represented banks and other institutional fiduciaries, individual fiduciaries, families, other trustees and personal representatives, and beneficiaries in cases involving claims of fraud, negligence, and breach of fiduciary duty. Tom has litigated trust cases involving some of the largest private estates in Michigan. Tom also has litigated guardianship and conservatorship proceedings and claims of financial abuse of elderly persons. Tom has lectured nationally on the topic of undue influence and has co-authored numerous articles for national and Michigan publications. For more background about Tom, see https://www.clarkhill.com/people/thomas-m-dixon. Thomas F. Sweeney was formerly a member of Clark Hill, PLC, in its Michigan offices. He now serves as counsel to the firm and focuses on estate planning, trust administration, and trust dispute resolution. Tom has lectured at the University of Michigan Law School and was an adjunct faculty member at Wayne State Law School, where he taught estate, gift, and generation-skipping taxation. He was a member of the Council of the Probate and Estate Planning section of the Michigan State Bar and formerly served as its chair. He has been recognized by Best Lawyers in America since 2003 and by Super Lawyers since 2006. Tom also has received an AV Preeminent rating. He has been a presenter at 16 of Michigans Institute of CLE programs and has authored articles regarding various trust and tax law matters in the Michigan Probate and Estate Planning Journal. For more background about Tom, see https://www.clarkhill.com/people/thomas-f-sweeney.viii