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The New York Times recently ran an op ed piece by Christian Longo, an Oregon death row inmate. In 2001, Longo murdered his wife, Mary Jane, and their three young children, Zachery, 4, Sadie, 3, and Madison, 2. He was sentenced to death for the murders, and from prison he has founded an organization, Gifts of Anatomical Value for Everyone, advocating that he and his fellow inmates be allowed to donate their organs after they’re executed.
The issue of death row organ donation is a controversial one. Among the arguments in support of allowing executed inmates to donate their organs is that there’s a potentially significant benefit to society. After all, more than a hundred thousand Americans are currently on organ waiting lists. According to the Mayo clinic, 19 people die each day while waiting for organ transplants. Allowing death row inmates to sign up as donors has the potential to increase the number of available viable organs and save lives. Plus, allowing these organ donations lets death row inmates perform a final, altruistic act despite their past crimes.
On the other hand, the 3-drug combination used by many states for executions damages an inmate’s organs and renders them useless. Ohio and Washington use a one-drug regimen that doesn’t compromise the viability of organs, and advocates of allowing donations want states to switch to this method of lethal injection. Another concern is the higher prevalence among the prison population of infectious diseases like HIV and Hepatitis. Opponents worry that these diseases will be passed on to recipients via infected organs. Proponents of allowing death row organ donation counter that this risk is no different than with anyone else and can be minimized by advanced screening.
There’s also the concern that inmates or their families will be coerced by the state to consent to donating organs, turning prisons into “organ farms.” This, in turn, leads to the worry that, if the public begins to see prisoners as valuable sources of donated organs, there will be an increase in the number of crimes that are defined as capital offenses as well as an upward trend in the number of death sentences that are meted out.
What do you think? Should death row inmates be allowed to donate their organs? Or do the risks and other factors outweigh the potential benefits?
Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
6050 Santo Rd Ste 240
San Diego, CA 92124
858-453-2128
www.aaepa.com
Understandably, copier security is very concerning; nonetheless it’s reality. My experience with the Canon product line-up has shown that Canon take security seriously. Their imageRUNNER and imagePRESS line of products ship standard with a One-time Overwrite feature built-in, meaning that each time a page is copied or printed, the Hard Drive automatically overwrites the previous page’s information with “null” data.
For certain industries that may not be enough. In the event that customers require more security, Canon has two options available that can be added: Hard Disk Drive Data Erase Kit (3 times overwrite with “null” data) or Hard Disk Drive Data Encryption (transforms plain text data using an algorithm to make the data unreadable).
As the video says, a 3rd “fail-safe” option exists. The most secure way to protect your data is to keep the hard drive at the end of the lease or when you trade it in. Your vendor should be able to assist you with this option.
All 3 options listed above will help you to better protect your sensitive information. If you aren’t using any of the options above, at the very least, I would suggest that you ask your vendor to “Initialize Settings” on your multi-functional device. This will wipe clean all stored data on your device’s Hard Drive.
Chris Mathew is a Digital Imaging expert for Signa Digital Solutions, Inc., a provider of Canon & HP digital imaging technology. With more than 6 years of experience in the industry, Chris has worked with small-to-medium sized businesses, as well as Fortune 500 companies, to help them better understand security risks and to deliver technologically-sound security solutions.
Signa Digital Solutions, Inc. is an independent full line Canon dealer, as well as an HP Elite dealer. With the strongest product line-up in the digital imaging industry, Signa Digital Solutions, Inc. is well-positioned to help customers better manage their print environments.
Academy Guest Blogger
American Academy of Estate Planning Attorneys, Inc.
6050 Santo Rd., Ste 240
San Diego, CA 92124
858-453-2128
www.aaepa.com
What if I were to tell you that you may be inadvertently disclosing all of your clients’ personal information… asset lists, deeds, account numbers, social security numbers… the list goes on and on. Would that get your attention?
This CBS News report certainly got my attention.
It turns out that most digital copiers manufactured since 2002 are equipped with hard drives, and these hard drives store an image of every document you scan, copy, or email. This may not be a problem as long as the copier stays in your office, but what happens when you trade in your old copier, either by purchasing or leasing a new one?
There is a brisk market for used copiers, which can be purchased for just a few hundred dollars. If your old copier is sold to a new owner who is so inclined, there’s software that can be used to download all your firm’s stored images, exposing your client’s confidential information to misuse by someone you’ve never met.
The bottom line? Copiers are computers, and when you get rid of one, it needs to be cleaned up before it leaves your office.
How can you accomplish this? You’ll want to check with your equipment supplier. There’s software that can scrub data from your copier before you dispose of it, and all major manufacturers offer security or encryption packages to protect your clients’ information from inadvertent disclosure.
Robert Armstrong
President & Co-Founder
American Academy of Estate Planning Attorneys, Inc.
6050 Santo Rd., Ste. 240
San Diego, CA 92124
858-453-2123
www.aaepa.com
What happens when an unmarried couple ends a long-term relationship? It’s not uncommon for a palimony claim to be filed, with one partner attempting to enforce an agreement that the other partner would provide him or her with long-term financial support.
What happens when that relationship is not ended by choice, but by the death of one of the partners? Increasingly, courts are seeing palimony claims against decedents’ estates. Whether these claims are recognized – and under what circumstances – is determined by state law.
In California, for instance, the factor that determines whether an oral agreement by one partner to support the other partner will be enforced is often whether or not the couple lived together. Where a couple cohabited and one partner passes away, the court will enforce a support agreement. On the other hand, even in the case of a long-term relationship, if the couple did not live together, the court takes a close look at the consideration supporting the agreement. If there’s no consideration above and beyond the existence of the relationship, the support agreement won’t be enforced, because it’s based on “illicit meretricious consideration.”
New Jersey takes a different and more restrictive approach. In 2010, the legislature amended the state’s Statute of Frauds to provide that, while cohabitation is not required, a palimony claim is only enforceable if there is (1) a written agreement to provide support and if (2) the agreement was made with the advice of independent counsel for both parties.
Other states, such as Florida, will not enforce an agreement for one unmarried partner to support another unmarried partner unless that agreement is undergirded by consideration other than the parties’ relationship itself. And in Iowa and Rhode Island, palimony claims against a decedent’s estate are not recognized at all.
Where on this spectrum does your state fall? Do you think states should allow post-death palimony claims, given the increase in non-traditional family structures? Or should these claims be disallowed in the interest of judicial economy?
Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
6050 Santo Rd., Ste 240
San Diego, CA 92124
858-453-2128
www.aaepa.com
I recently attended the annual convention of the International Cemetery, Cremation and Funeral Association (ICCFA) with Guy Kawasaki as the keynote speaker. His new book, Enchantment-The Art of Changing Hearts, Minds and Actions just came out and provided the theme of his talk.
What can estate planning attorneys or funeral providers learn from this former chief evangelist at Apple? Here are a few of Kawasaki’s thoughts that could benefit your business:
- Achieve likeability: Have a great smile (with the eyes as well as the mouth); dress to tie – that is, be a peer (don’t under-dress or over-dress); and have a great handshake – eye contact, smile, firm but not hard grasp, and dry skin. Those with naturally sweaty palms may have trouble controlling that last element.
- Achieve trustworthiness: One could write volumes on this topic, but Kawasaki summed it up citing corporate examples of trustworthiness by Amazon.com, Zappos.com and Nordstrom. He suggested thinking like a baker rather than an eater – An eater looks at a pie and says, “I have to get as big a slice as possible.” A baker thinks, “I can bake a bigger pie for everybody.” And finally, default to a “yes” attitude – “How can I help this person?”
- Do something DICEE: This stands for Depth (features, full service); Intelligent (you’ve thought of everything, beyond what your customer has thought of); Complete (totality of service); Empowering (makes the user feel productive, creative); and Elegant (his example was the Apple interface). Is this how you operate?
- Use technology and social media: Remove the speed bumps to service online (like those hard-to-read “Captcha” words); provide value in information, insights, and assistance; and engage fast – if someone uses your Contact Us form, they need to get a same-day response from someone who can actually help.
He also talked about the need to use salient points, the information that really matters to your customer. Instead of touting the gigabytes a gizmo has, frame it in terms of the number of songs it can hold. Instead of talking about miles per gallon, frame it in terms of the yearly cost of gasoline (which is only going up these days).
And about those formal presentations: He suggested using the 10-20-30 Rule: keep a presentation to 10 Power Point slides in 20 minutes at 30 Point font size. And don’t read your text verbatim! The audience will read ahead and you’ll lose them.
So the question for estate planning attorneys (as well as ICCFA members), are you doing all you can to enchant your current and prospective clients? It’s not just how good the service you provide your clients actually is – it’s how your clients perceive that service.
Gail Rubin is the author of A Good Goodbye: Funeral Planning for Those Who Don’t Plan to Die. She just debuted “The Newly-Dead Game” at the Frozen Dead Guy Days festival in Nederland, Colorado and attended the International Cemetery, Cremation and Funeral Association’s convention and expo in Las Vegas, Nevada. As the Grateful Dead sang, what a long strange trip it’s been!
Academy Guest Blogger
American Academy of Estate Planning Attorneys, Inc.
6050 Santo Rd., Ste. 240
San Diego, CA 92124
858-453-2128
www.aaepa.com
“In the internet’s standard e-mail protocol SMTP, a bounce message, is an automated electronic mail message from a mail system informing the sender of another message about a delivery problem. The original message is said to have bounced.” – Wikipedia
What are these bounced e-mail messages trying to tell me?
Most bounced e-mail reports will tell you a few pieces of info to help you discover the cause:
- The date and time the message bounced
- The mail server where it bounced
The cause of most bounced e-mails generally are one of three bounce messages:
- Rejected by security/filter
Armed with this information you can then move forward to help resolve the issue.
- If the email is unknown or something related you can contact the recipient to verify their address is correct.
- If the recipient has a full mailbox you can let them know to clear some things out to allow for future emails.
- To resolve being blocked by a recipients email it would be best to ask them to whitelist your domain within their email (sometimes they can simply add you to their address book or mark you as a safe sender) as well as ask your e-mail provider to send a whitelist request to the recipients’ e-mail provider.
Web Department
American Academy of Estate Planning Attorneys, Inc.
6050 Santo Rd., Ste. 240
San Diego, CA 92124
858-453-2128
www.aaepa.com
Outside of the probate process, is there a way to seek redress in a situation where an intended beneficiary loses an inheritance because of the acts of a third party? For instance, what happens when a relative induces Dad to revoke his Will, leaving his son with only an intestate share of Dad’s estate, rather than the much larger inheritance he would have enjoyed had the Will remained in effect?
There’s a trend toward recognizing a claim for tortious interference with inheritance in situations like this, but the requirements for making a valid claim are pretty restrictive.
- The plaintiff must show that an actual expectancy of an inheritance existed sufficient to warrant the court’s protection.
- The expectancy may be impeded by conduct altering the execution, alteration or revocation of a Will.
- The plaintiff must prove that the defendant’s interference with the expectancy was intentional and tortious.
- If the interference was only negligent and not intentional, the plaintiff does not have a valid claim.
- The plaintiff is required to show by a “high degree of probability” that, but for the defendant’s intentional act, the plaintiff would have received the expected inheritance.
- The plaintiff has to show that the defendant’s tortious conduct caused injury. Ordinarily, the measure of damages in a tortious interference claim is the value of the property that plaintiff would have inherited absent the tort.
What about the timing of a claim? In some states, a plaintiff is permitted under certain circumstances to make a claim during the testator’s lifetime, while in others, the plaintiff must not only wait until after the testator’s death, but also exhaust any remedies available through the probate process before making a tort claim. Nationwide, there’s a growing trend toward recognizing the tort, but a number of states, including Arkansas and Tennessee, have declined to do so.
What do you think? Should states recognize tortious interference with an inheritance?
Stephen C. Hartnett, J.D., LL.M
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
6050 Santo Rd., Ste. 240
San Diego, CA 92124
858-453-2128
www.aaepa.com
We all know the importance of advance directives in making clients’ healthcare wishes known. Unfortunately, research tells us that creating such documents does not necessarily ensure that their wishes will be known when it counts.
Consider this: According to a study in the Journal of the American Medical Association, advance directives were not available in three out of four cases when a patient was admitted to the hospital.
Or this: In 67 to 74 percent of cases, physicians were not aware that their patients even had advance directives.
What explains the unavailability of these documents and the lack of knowledge about their existence by the medical professionals who need them? For one thing, people tend to file away their directives, store them in a safe deposit box, give them to family members, or even leave them in the estate plan binder you gave them. And why wouldn’t they? Who goes out in the morning thinking “What if I get into an accident or suffer a stroke today… better bring my advance directives with me just in case.” Thus, the documents are not readily available in emergencies, the very situations in which they may be most needed.
To address this problem, a number of electronic registries now provide instant access to advance directives. Utilizing the vast capacity offered by electronic storage and high-speed data transmission, these services permit advance directives to be obtained from just about anywhere, so that these documents can do their intended job at a moment’s notice.
Registries can also help protect clients’ advance directives from being unwittingly superseded — another benefit not widely recognized. Here’s how: if a patient does not have his or her advance directive in hand when hospitalized, the hospital typically offers the patient the opportunity to complete a new directive, right there on the spot during the admissions process. This directive is typically the state’s statutory form. Patients often comply with the hospital’s offer (which is sometimes heard as a request) to complete a new directive –because they want to be cooperative. But (as you well know), any new directive the client executes will negate the previous directive that you created. Any non-statutory language that you may have carefully drafted to further clarify and protect the client’s wishes will be undone.
So how do registries work, and what should you look for in recommending one to your clients? More on this in an upcoming post.
Randi J. Siegel, MBA, is the President of DocuBank, the largest advance directive registry in the U.S., which ensures that the healthcare directives of its 175,000 enrollees are immediately available 24/7/365. Working with estate planning professionals since 1997, Randi frequently speaks at national estate planning conferences and has appeared on radio and television as an authority on registries. She is active in health policy pertaining to advance directives and serves as a Senior Fellow at the Jefferson School of Population Health in Philadelphia. Randi is an ongoing contributor to the Academy blog.
Academy Guest Blogger
American Academy of Estate Planning Attorneys, Inc.
6050 Santo Rd., Ste. 240
San Diego, CA 92124
858-453-2128
www.aaepa.com
In my last post, I highlighted a recent discussion on our Academy Listserv, and talked about the concerns of some of our Members who choose not to provide their clients with electronic copies of estate planning documents.
On the other side of the argument are our Members who do provide electronic copies to their clients, either as a normal part of their estate planning package, or on request. These Members tend to approach the issue with a focus on the service they’re providing to clients. Their take on “self-medicating” clients is that those clients who want to take this approach will find a way, pdf file or not.
One Member summed up his thoughts on the matter in this way:
“If the clients are so motivated, the changes will be made no matter what our office policy may be. The difference between our office scanning the documents and providing them to the client in pdf form and providing only their original paper documents is the clients’ use of a personal scanner. These can be bought for less than $100.00 at any office supply store. Unfortunately, all we are doing is saving them the step of scanning the documents themselves, which they can then convert to MS Word and make the changes.
All we can be responsible for is the actions we take in our office. If the clients want to mess things up by “self-medicating” down the road, I guess that’s their problem… or at least their heirs’ problem!
And what about potential liability?
At least one of our Members includes a statement in his firm’s fee agreement that warns clients of the potential consequences of attempting to make changes to documents, states that the client agrees not to make changes to documents without attorney assistance, and has the client waive liability in the event that unauthorized changes are made to the document.
Where do you stand on this topic? And, have you had experiences with “self-medicating” clients?
Robert Armstrong
President & Co-Founder
American Academy of Estate Planning Attorneys, Inc.
6050 Santo Rd., Ste. 240
San Diego, CA 92124
858-453-2128
www.aaepa.com
Can a will be contested while the testator is still alive? Different states answer this question in varying ways. The traditional view is that a will contest is not “ripe” until a testator dies, because a will does not “speak” until death. In the past, courts have refused to hear pre-mortem will contests because to do so would mean expending resources on a claim that could be rendered moot by the testator’s subsequent amendment or revocation of the will.
Over the past several years, though, four states – Alaska, Arkansas, North Dakota and Ohio – have enacted statutes expressly allowing the pre-death validation of wills. Once a will is validated by the court, it can’t be contested after the testator’s death. Does this mark a nationwide trend toward allowing pre-mortem will contests?
Some states, New York included, have affirmatively rejected the idea in keeping with the traditional approach.
In a few states that don’t expressly allow pre-death validation, though, there does seem to be a subtle trend toward the recognition of certain pre-mortem claims concerning wills.
In California, for example, the traditional rule still stands, but an exception has been carved out that applies to substituted judgment proceedings. In a California substituted judgment proceeding, if a conservator can establish that a conservatee lacks testamentary capacity, that conservator can perform certain estate planning functions on behalf of the conservatee, including making a will. The conservator can then have the court validate the estate plan he or she has put in place for the conservatee. Once a probate court has validated a will as part of a substituted judgment proceeding, the issues decided in that proceeding are res judicata. After the testator’s death, the pre-validated will can’t be contested.
In New Jersey, too, there seems to be a move toward allowing pre-death will contests, particularly where undue influence or lack of testamentary capacity are at issue.
It will be interesting to see how the states’ treatment of pre-mortem will litigation develops, and whether more states adopt the approach taken by Alaska, Arkansas, North Dakota and Ohio.
What do you think? Do you think states should allow pre-mortem contests of wills? Doing so might be a waste of judicial resources. However, on the other hand, it might allow greater certainty and peace-of-mind to the testator. Again, what do you think?
Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
6050 Santo Rd., Ste. 240
San Diego, CA 92124
858-453-2128
www.aaepa.com
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