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Graduated from University of St. Thomas School of Law in 2006
Member of the Nebraska and Iowa Bar Associations
Member of the National Academy of Elder Law Attorneys & ElderCounsel
Accredited Veterans Benefits Planner
ELDER LAW OF OMAHA, P.C., L.L.O.
Nick Halbur, J.D.
“I’m kinda starting to specialize in Elder Law. Ya, the things the elderly have to deal with: relatives coming after their savings, telemarketers, reverse mortgage scams, getting old sucks. Seniors need someone on their side, so, you’re looking at him.” – James M. McGill aka Saul Goodman
Capacity
• Client understanding is foundational to the attorney-client relationship and central to the ethics rules.
• Issues directly impacted by Client Capacity include:• Scope of Representation & Allocation of Authority.• Effective Communication.• Conflicts of Interests – “Who is the client?”• Protective Actions by Attorney after Client Cannot
Consent.• The Lawyer as Witness.
Capacity
• Factors for Lawyer Assessment of Capacity• Clients ability to articulate reasoning
leading to decision• Variability of state of mind• Ability to appreciate consequences of
decisions• The consistency of a decision with
the known long-term commitments and values of the client
Guardianship Fact Scenario
Will #2
•Attorney Peppard•Executed March 11, 2011•Johanna leaves her Estate to Lorenz
Mrs. Jones is 86 years old. She has lived alone in her home for 26 years. She has 13 cats and a dog. She can only get around with a walker. She can’t drive. Her house reeks of cat urine, although it is otherwise neat & tidy. She can’t usually remember what day of the week it is. When shown a picture of herself and her husband, she thinks it is a picture of herself and her son. She can’t remember how much Social Security is deposited every month into her bank account. She can’t remember if her prescription is for tablets or capsules.
Guardianship Fact Scenario Continued…
Will #2
•Attorney Peppard•Executed March 11, 2011•Johanna leaves her Estate to Lorenz
Mrs. Jones suffers from severe edema (swelling caused by excess fluid in body tissue). Her doctor has prescribed her diuretics, which Mrs. Jones calls “water pills”. She complains that when she takes them, she has to go to the bathroom all the time, which is difficult for her. So, Mrs. Jones refuses to take her prescribed medication. As a result, her feet swell terribly and blister. Twice she has gone to the emergency room, she calls a cab and has them pick her up.
Guardianship Fact Scenario Concluded…
Will #2
•Attorney Peppard•Executed March 11, 2011•Johanna leaves her Estate to Lorenz
Mrs. Jones receives very little assistance in her home. She refuses to accept services offered by a home health agency. She is adamantly opposed to the idea of moving into any kind of facility. She has repeatedly stated over several years that if anyone tried to move her into a care facility, she would have her pets put to sleep and she would kill herself.
Mrs. Jones’ son wants to file for temporary and permanent guardianship over Mrs. Jones, in order to admit her to a care facility and ensure that she takes her medication.
In Re Schaefer183 Ore. App. 513, 52 P.3d
1125 (2002)Will #2
•Attorney Peppard•Executed March 11, 2011•Johanna leaves her Estate to Lorenz
“No evidence in the record supports the finding that the smell of cat urine is anything but unpleasant. Appellant’s daughter-in-law, her protective services case manager, and the court-appointed visitor all testified that appellant keeps a clean, neat, and orderly house.”
In Re Schaefer
Will #2
•Attorney Peppard•Executed March 11, 2011•Johanna leaves her Estate to Lorenz
“Like the smell of cigar smoke, boiled cabbage, or cheap cologne, the olfactory evidence of cats reflects a deliberate choice and not a health or safety hazard. Nor is there any evidence that it results from the appellant’s mental impairment.”
In Re Schaefer
Will #2
•Attorney Peppard•Executed March 11, 2011•Johanna leaves her Estate to Lorenz
“The most significant of the trial court’s finding is appellant’s periodic refusal to take prescribed edema medication, resulting in severe blistering and the need for emergency medical treatment. Once again, however the record utterly fails to connect these actions to impaired ‘ability to receive and evaluate information effectively or to communicate decisions.’”
In Re Schaefer
Will #2
•Attorney Peppard•Executed March 11, 2011•Johanna leaves her Estate to Lorenz
“We may find [her] calculation idiosyncratic or misguided (or we may not), but we cannot find it to be the result of an inability to process information.”
In Re Coenia Schaefer, 183 Ore. App. 513, 52 P.3d 1125 (2002).
Elder Law Hypothetical (1/4)
Will #2
•Attorney Peppard•Executed March 11, 2011•Johanna leaves her Estate to Lorenz
Bob and Lillian Smith are an elderly couple. Until a couple years ago, they resided in western Iowa with Lillian’s daughter, Sue, and Sue’s husband, Mark. They all resided in Sue and Mark’s home. Sue and Mark provided care and assistance to Bob and Lillian and assisted them in paying their bills and managing their bank and investment accounts.
Elder Law Hypothetical (2/4)
Will #2
•Attorney Peppard•Executed March 11, 2011•Johanna leaves her Estate to Lorenz
Bob and Lillian have been married before. Bob has three children, living in Chicago, Detroit, and San Francisco. Sue is Lillian’s only child. Bob and Lillian have been married for 25 years. Four years ago, Bob and Lillian met with their attorney, Geraldine Grubbs, to update their estate plan. Sue and Mark attended the meeting with Grubbs. Following the meeting, Grubbs prepared wills, powers of attorney and Advance Directives for Bob and Lillian. In such documents, Sue was named as fiduciary and health care representative, with Mark as backup.
About two years ago, Lillian phoned Grubbs quite upset, explaining that she and Bob had a falling out with Sue and Mark and that she and Bob were moving out. She asked Grubbs to send Sue and Mark a letter demanding the return of all Bob and Lillian’s financial records, bank books and checks. Grubbs did so.
Elder Law Hypothetical (3/4)
Will #2
•Attorney Peppard•Executed March 11, 2011•Johanna leaves her Estate to Lorenz
A couple months ago, a neighbor was visiting Bob and Lillian at their home and noticed Bob was bed ridden, unkempt, smelled of feces and had bruises on his neck and arms. Lillian told the neighbor to mind his own business and not to come around anymore.
Two weeks ago, Bob was admitted to the hospital with a broken hip. The EMTs found Bob alone at home on his bathroom floor. Doctors also found Bob to be malnourished and disoriented. The hospital discharge planner has recommended Bob be placed in an adult foster care facility. Lillian wants Bob returned home. She will not disclose any information about their assets or income and stated to a caseworker that, if Bob is moved into a care facility, she will not pay for his care.
Elder Law Hypothetical (4/4)
Will #2
•Attorney Peppard•Executed March 11, 2011•Johanna leaves her Estate to Lorenz
Sue called Grubbs to ask if Bob or Lillian had revoked their powers of attorney to her and Mark. Sue also asked about how to file guardianship over Bob to keep Lillian from taking Bob home. She also stated that she does not think Lillian can take care of herself at home as she has been forgetful lately and asked if she should seek guardianship over Lillian as well.
Johanna Morrell
Nau(Sibling)
Brohan(Sibling)
Roessler(Sibling)
In Re Estate of Johanna M. Morrell
Lorenz (friend)
Malousek(Guardian-
Conservator)
Peppard(Attorney)
In Re Estate of Johanna M. Morrell
Will #2
•Attorney Peppard•Executed March 11, 2011•Johanna leaves her Estate to Lorenz
Will #1
• Executed September 13, 2010• Drafted By Attorney Chatelin• Left her Estate to the three siblings
Will #2
• Executed March 11, 2011• Drafted By Attorney Peppard• Left Estate to Lorenz• Guardian and Conservator Malousek was not present
Will #2
•Attorney Peppard•Executed March 11, 2011•Johanna leaves her Estate to Lorenz
Timeline ◦ March ‘09 “Mild Cognitive Impairment” (Dr. Morgan)
• October ‘09 “Dementia of the Alzheimer type” (Dr. Morgan)
• September ‘10 Unable to make informed decisions (Dr. Morgan)
• October ‘10 Evaluation of capacity, able to make decisions (Dr. Pare)
• October ‘10 Malousek appointed temporary guardian-conservator by the Department of
Health and Human Services, Adult Protection Services
• December ’10 Report from Department of Health and Human Services, Adult Protection
Services, “unable to make complex medical and financial decisions since October ‘09”
• April ‘11 Malousek is appointed permanent guardian-conservator
Source
Will #2
•Attorney Peppard•Executed March 11, 2011•Johanna leaves her Estate to Lorenz
In Re Estate of Morrell , 22 Neb. App. 384, 568 N.W.2d 392 (2014)
Pending Legislation in Iowa
Will #2
•Attorney Peppard•Executed March 11, 2011•Johanna leaves her Estate to Lorenz
Elder Abuse ◦(HF 85, HF 87)
Eliminating Institutional Bias ◦(HF 187)
Access to mental health treatment ◦(HF 180)
ABA & American Psychological Assn ASSESSMENT OF OLDER ADULTS WITH DIMINISHED CAPACITY: HANDBOOK FOR LAWYERS.
Access to PDF chapters and ordering hard copy:http://www.americanbar.org/groups/law_aging/resources/capacity_assessment.html
FULL PDF:https://www.apa.org/pi/aging/resources/guides/diminished-capacity.pdf
Iowa Agency on Aging: https://www.iowaaging.gov/
National Center on Elder Abuse: http://www.ncea.aoa.gov/
These slides: https://app.box.com/SWILLElder2015pdf
Additional Resources
Thank You
Will #2
•Attorney Peppard•Executed March 11, 2011•Johanna leaves her Estate to Lorenz
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