Farewell to Another Year

I hope everyone had a great 2012.  Best wishes for a happy new year!

Canyon Has a New Home

Over the last few months, I've been following the news about Robert Rauschenberg's Canyon, and the tax uproar it's caused (see here and here for earlier posts).

The IRS agreed to drop the $65 million tax assessment on the work, which can never be legally sold or traded.  In return, the owners of the piece, the children of New York art dealer Ileana Sonnabend, agreed to permanently donate the work for public exhibition and waive the tax deduction they would otherwise get for the donation, reports the New York Times.

A bit of a bidding war broke out between the Metropolitan Museum of Art, which has had the work in its collection for some time, and the Museum of Modern Art.  The family decided on MoMA as the permanent home for their controversial piece.

Cell Phones - Subject to Warrantless Search?

Two years or so ago, I wrote a series of posts about the split in the circuits on an issue of privacy - in that case, GPS surveillance.  (Posts are here, here, and here.)

There is a new issue coming up, which undoubtedly will find its way to the Supreme Court before too long: cell phones.  Circuits (and even courts within the same circuit) have divided on the question of how much privacy it is reasonable to expect where your cell phone is concerned.  The New York Times recently published an article on the issue, which highlights some of the divisions.

For now, courts are trying to apply the 1986 Electronic Communications Act to cell phones, but it's not working too well; technology (and our dependence on our phones) has advanced far ahead of the scope of the law.  A Senate committee will convene this week to consider changes to the law.

As cell phones become more important in our daily lives, they will surely be a go-to source for police officers or investigators looking for information.  But how much access are they allowed without a search warrant?  Voice mails?  Text messages?  Your recorded GPS location?  What if you have your phone screen locked?  Does that give you added protection for your data?  Does the phone company have to alert you if your records are subpoenaed?

No definitive answers yet, but time will tell.

Law School -- Is It Worth It?

This week's Washington Post Magazine has a cover story entitled "Will Law School Students Have Jobs After They Graduate?"  There's a rather simple conclusion (spoiler alert!): no.  Probably the most damning indictment comes from Paul Campos, who has taught at University of Colorado Law School since 1990: "If the federal government applied any actuarial standards, half the law schools would shut down tomorrow.  The whole thing is a basically a giant subsidy machine run for the benefit of legal education."

Ouch.

However, the article investigates some tangential issues that are ripe for discussion:
 - Can the cost of legal education come down?
 - Can (and should) legal education be reformed to make it a more practical, trade school model in which students acquire hard skills rather than ideas?
 - Should students be allowed to borrow the full amount if they have dim prospects careerwise?
 - Should taxpayers be responsible for footing the bill if they can't pay off their loans in 25 years?  (Under the current income-based repayment system, any amount not paid off by the end of 25 years is "forgiven.")

You can read Campos's year-and-a-half old blog, Inside the Law School Scam, for more of his scathing opinions.

The Sandwich Generation: Caring for an Elderly Parent

Charles Ross, Sr. died earlier this month.  He had lived in Chesterfield for many years, but spent his last four and a half years in Massachusetts with his son after doctors told Chuck Jr. that his dad was no longer able to live on his own.

Chuck Jr. chronicled this on a blog, Life With Father, in which he honestly and touchingly hashes out both the emotional and logistical complications of loving and caring for an aging parent.

Long-Term Care Insurance - Is It Worth It?

NPR did a story this week on long-term care insurance.  The reporter asks, but failed to answer, many important questions:
  --  Will you need the insurance?
  --  Can you afford the premiums?
  --  Can you afford not to have the coverage?
  --  If you get the insurance, will they pay on claims when you need them to?
  --  If they don't pay (and you don't happen to live in Oregon), what is your recourse?

Oregon recently implemented an appeals procedure to review denied claims, which saves elderly citizens from having to wade through the complicated policy documents and court procedures to secure payment.  Oregon, though, tends to be fairly progressive on these types of social issues.

Will other states follow?  Time will tell.

Series: The Law In Our Lives

It's that time again, folks - moving time.

The way I figure it, I move on average once every year or so.  Even though it's been a while since I signed a traditional lease, it shakes out to be more or less an annual task.

With this most recent move, I'm shifting back to the land of the traditional lease handled by a property management company, and I'm having scary flashbacks to my last commercial landlord.  I had lots of closet space and a great location, but other than that, everything about that last commercial landlord was terrible.  They didn't care about the tenants, they didn't close requested work orders (my bathroom faucet leaked for three years - three years - before they fixed it), they took terrible care of the building and made shoddy repairs when they made them at all (the poorly-caulked shower had leaked through to the living room wall on the other side, and they fixed it by painting over the mold!).  Eventually, I just couldn't take it any more.  I was the last of the tenants in the building who paid regularly and on time, and they ran me out.  Probably not a wise business choice on their part, but they deserve what they have coming to them.

I'm getting nervous reviewing the application and lease documents for this new place.  Missouri is a very, very landlord-friendly state; tenant rights are quite limited, even when that tenant happens to be an attorney.  Everything is drafted in the landlord's favor, but the rental market is tight where I'm looking and if you fuss about their terms, you're out.  So, just like all the other schmucks out there, I just have to sign on the line and hope for the best.

Fingers crossed that it's better than last time.

Canyon

Just a few posts ago, I wrote about a tax quandary facing the heirs of Ileana Sonnabend.  Recently, I was in New York and saw the piece itself:

It's strange to be so close to a bald eagle, especially knowing what a controversy it's caused.

Marriage in America

This summer, the New York Times pulished an article entitled "Two Classes, Divided by 'I Do.'"

The gist of this article is that it's a lot harder for single parents than it is for married couples, which is not exactly breaking news.  Anyone who's been a single parent in the last fifty years could have told you that.  But it's interesting to see the treatment given to the subject in such a broadly-reaching publication, which includes concern about the fact that single parenthood - and especially single motherhood - is such a rapidly growing trend.

Series: The Law In Our Lives

I am not a homeowner.

For various reasons, primarily mobility, I have always been a renter.  But the housing and rental markets are such that it makes a lot more financial sense to buy.

Should I do it?

It might make more sense from a monthly, dollars-paid-for-housing perspective, but there are other financial and non-financial considerations.  Am I expecting the unexpected?  What if I need a new water heater?  Air conditioner?  What if I decide I don't like the neighborhood?  What if I decide I love the neighborhood, but not that particular condo?  What if bad neighbors move in?

I'm stuck - geographically and mentally.

An Interesting Tax Quandary

Generally, it's not a good idea to fight battles with the IRS.  However, I think in this case, the potential taxpayers have a good argument.

This New York Times article tells the story of the Sonnabend family.  When Ileana, an art dealer, passed away, she left her children quite an extensive art collection worth approximately $1 billion, including a sculptural work called Canyon by Robert Rauschenberg.  The kids have already sold off much of the art to pay the nearly $500 million estate tax bill, but they're now in a tiff with the IRS over Canyon.

The problem is this: one of the sculptural elements of Canyon is a stuffed bald eagle.  Under The Bald and Golden Eagle Protection Act of 1940, it is illegal to "take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import, at any time or any manner, any bald eagle ... [or any golden eagle], alive or dead, or any part, nest, or egg thereof."

Technically, Ms. Sonnabend's heirs are in violation of the Act by merely possessing the eagle, but they've gotten by with a wink and a nod from the U.S. Fish and Wildlife Service since the eagle was killed and stuffed decades before the Act protecting them was passed; the caveat is that the work must remain on public display, which it is (at the Metropolitan Museum of Art).

Whence the problem with the IRS, then?  Since Ms. Sonnabend's heirs cannot legally sell the sculpture, it was appraised with a value of zero dollars.  There is no market for it, hence it has no value.  The IRS disagrees, and values the work at $65 million in "artistic value"; they are seeking almost $30 million from the heirs as a combination of taxes and penalties.

My verdict: no taxes, value of zero.  Why?  The work can never be legally sold in a fair and open market transaction, therefore has no dollar value.

I bet the insurance company would beg to differ.

Punishment or Rehabilitation?

Yesterday the New York Times published a series of essays by different authors debating the treatment of juvenile criminal offenders in our current system.

The Supreme Court is set to publish its ruling any day now on a pair of cases it heard earlier this session regarding whether juveniles can be sentenced to life imprisonment with no option for parole.

More on Alzheimer's

The New York Times reported today on a clinical trial of experimental drug called Crenezumab that could delay the appearance of symptoms in a family in Colombia with a genetic history or early-onset Alzheimer's Disease.

The drug is currently in two trials, but both of them involve people who are already showing symptoms.  The Colombian trial will involve family members who have (and don't have, for control's sake) the gene in question.

There are still a lot of questions and much remains to be seen, but this is promising research!

Alzheimer's Research

Time, the Scientific American, and other sources reported recently on a study which found that certain lifestyle habits can hasten memory loss and the slide many elderly individuals take towards Alzheimer's.  Risk factors included overeating and not getting enough good sleep each night.

Do what you can to help yourself out - eat right and create as serene of an environment in your bedroom as possible!

The Sandwich Generation

NPR recently started a series called Family Matters, in which they focus on the financial pressures faced by the "sandwich generation," baby boomers who are finding themselves caring both for their aging "greatest generation" parents as well as their "boomerang generation" children.

The  series' focus is on the financial situations of the profiled families, but an intertwined subject is the cost of caring for an aging parent.  And related still are the emotional and psychological stresses that having a parent in your home causes, as well as the benefits it can bring.

It should be a great series and I encourage you to follow it.

Thank You, Voters!

After yesterday's county-wide vote on Proposition S, St. Louis County will be issuing $100 million in bonds to support the renovation of the current St. Louis County Courthouse as well as the construction of a new Juvenile Court Building.  The measure received 59.49% approval, and needed 57.15% to pass.

Series: The Law In Our Lives

Advanced Planning -- The Emotional Toll

In my last post, I discussed the importance of advanced healthcare planning. It can be as simple as preparing an advanced directive or health care power of attorney. In this document, you declare your intentions regarding various health care decisions, such as whether you would want artificial nutrition and hydration to prolong your life in the hospital. (Financial planning is important too! It can be as simple as adding a beneficiary's name to your house, bank accounts, and retirement plans to avoid probate, writing a living trust, and having a simple will.)

Meeting with a lawyer and getting a signature of an elderly parent in a hospital, nursing home, or even in their own home can be stressful; I advise that you be prepared. After all, we'll all be there some day and it gives peace of mind to know that you have taken the decision-making burden off your family. That sounds logical, right?

My parents did all those things. They made their own decisions. They took the burden off us kids. But I was still not prepared for the emotions attached to producing their documents for actual use by medical staff. Sure, I had prepared their health care directives myself and felt sure that the documents reflected my parents' wishes. But the act of handing that paper over to a health care provider made the situation real. At the time we wrote them, it was easy to say that my parents didn't want "heroic measures" taken to keep them alive, but it was another matter to realize that those same "heroic measures" they didn't want would be the same ones that would keep them here with us a little longer.

Now, as I watch my father being placed on hospice, I am struggling with these decisions. The hospice worker reviewed the documents I prepared and reminded us that if a time comes when my dad needs heroic measures (including something as simple as CPR), we cannot call 911. We must follow his wishes and allow him to die peacefully.

I know I am not as level-headed and detached now as I was when I assisted my parents with their estate planning; I am grateful that we took care of this ahead of time.

As you begin your estate planning, it is important that you be able to think clearly and rationally, which is much more difficult when surgery, hospitalization, nursing home care, or death is imminent. It is also less frightening.

Frequently our clients admit that they have put off their estate planning because it scared them to face the idea of their own deaths, but most express a feeling of relief when they sign their papers - wills, deeds, trusts, and powers of attorney. They know that their wishes will be honored and their loved ones won't have to worry. It's all about peace of mind.

Series: The Law In Our Lives

Advanced Planning -- Be Prepared!

For twenty years I have offered legal advice to clients regarding the importance of writing a simple will, a health care directive, and a durable power of attorney before a crisis arises. It wasn't until my own parents began experiencing health problems that I realized the true wisdom of my own words.

Both of my parents were hospitalized several times during the last few years. Each time, they were asked whether they had an "advanced directive." Luckily, I had assisted them with this many years ago. After discussing their wishes regarding distribution of their property, nursing home care, and life-prolonging measures such as artificial nutrition and hydration, I designed a straightforward estate plan including the following:

1. Living Wills (Powers of Attorney for Health Care)
2. Simple Wills
3. Durable Powers of Attorney
4. Beneficiary Deed

Like many of my clients, my parents were crystal clear about their feelings regarding these issues and were wise enough to express those feelings in a legal document. These pieces of paper may seem insignificant, but they constitute the "clear and convincing evidence" of my parents' intent that the courts require in order for their wishes to be carried out.

Each time they were asked to do so, my parents obediently (and rather proudly) produced their original health care directives for copying. We always put them back in their refrigerator drawer for safekeeping afterwards. (In case of a fire, the papers will probably survive. Safe deposit boxes and fire-proof safes work great if you have one, but if not a fridge is a good alternative. I recommended a safe deposit box to my parents, but it's actually easier to get at the papers if you just reach behind the lettuce!)

Nearly everyone I have talked to feels strongly about whether they would want treatment which might prolong the dying process. Many are adamant that they do not want to be kept alive on a ventilator or with artificially-supplied food and water. However, most clients also admit that they have not taken the crucial next step -- putting their wishes in writing. I cannot count the number of times a client has dashed into our office requesting that we prepare a legal document immediately, because they (or a parent, grandparent, aunt, etc.) is having surgery, going into a nursing home, or dying. The added stress this causes is evident on their faces.

My advice is that you do not put yourself or your family members in that position. Instead, take the time to sit down and think about what you want without the pressure. Then speak to an attorney who will advise you of the best way to accomplish your goal. We, like many attorneys, would be happy to discuss the procedure and costs.

Missouri Attorneys: Protect Your Privacy

The Missouri Bar has released information on licensed attorneys in this state to legaldirectories.com.  It is a good thing to be listed - one more way for people to find you!  However, I recommend checking to ensure that your office address (rather than home) is listed.