Re: More lawyer input needed

1

here's a quick gloss on the situation: she's the executor of an estate.

She gets to make final decisions as long as the will has gone through probate.

The decedent left some property to a group of people, including her. All but one want to sell it and divide the assets. "But one."

This depends on the exact phrasing. If it was left in common (that is, a single thing or multiple things treated as a single unit, left to a group of people who are treated as a unit) then the single person may have de jure or de facto veto power. If it wasn't left in common, then it can be divided up, depending (again) on the exact provisions of the will.

How is this handled, usually?

If no agreement can be reached between the executor and the other parties, so there is a dispute, it goes to a judge to decide. That's what this person needs the lawyer for.

max
['If the will is proven, then the exact phrasing of the will is the deciding factor. The executor could preemptively go to court themselves, BTW, if they have doubts.']


Posted by: max | Link to this comment | 08-14-08 2:51 PM
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OK. Next question. Someone I just barely know was a caretaker / attendant for an elderly (90+) man for several years. This was a part-time jon; I think that she was hired by an agency which billed the state or an insurance company.

He named her his executor and one of his heirs. His real property went to his church, and his movable property went to her. Value seems to have been $20k, maybe $30k. Apparently he had no living kin.

I believe that this was on the up and up in the sense that he signed his own name to the papers and was not in a state of dementia, etc. But isn't it a bit fishy even so?


Posted by: John Emerson | Link to this comment | 08-14-08 3:00 PM
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2: yes.


Posted by: FL | Link to this comment | 08-14-08 3:03 PM
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This was a part-time jon
Did she also have a full-time John?


Posted by: SP | Link to this comment | 08-14-08 3:04 PM
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Sorry, I was asking for a legal opinion. However, I am gratified to get a yes-or-no answer out of a philosopher.


Posted by: John Emerson | Link to this comment | 08-14-08 3:17 PM
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2: having the executor be an heir is pretty common, those situations are not terribly unusual, if he had died intestate with out heirs presumably the state would just end up with the money instead.


Posted by: Asteele | Link to this comment | 08-14-08 3:20 PM
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But isn't it a bit fishy even so?

Not necessarily. It was his stuff, he didn't have dementia and was an adult, so he gets to do what he wants with it. Maybe she was shagging him. It's fishy in the sense of "a proper subject for malicious gossip", but I'd say that the chances are at least 50/50 that it was morally A-OK. Lots of people form quite strong bonds of friendship with their carers.


Posted by: dsquared | Link to this comment | 08-14-08 3:23 PM
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I agree with 6 that having an heir as an executor is pretty common, but it happens quite a lot and not everyone can afford the Queen's solicitors to do it in style.


Posted by: dsquared | Link to this comment | 08-14-08 3:24 PM
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How is this handled, usually?

You remember the scene with the sock in "Full Metal Jacket?"


Posted by: JRoth | Link to this comment | 08-14-08 3:31 PM
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what's the most reliable way to find someone good

A record of disbarrment proceedings initiated and dismissed is a good indicator that the lawyer has carried zealous advocacy right up to the limits.


Posted by: Knecht Ruprecht | Link to this comment | 08-14-08 3:37 PM
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It's a puzzle to me because from talking to her I can't be sure whether she's just a nice, naive person who's had a bit of luck, or a rather crass person who's blandly taking what she can get. Some of my reaction comes from the fact that she took quite a nice ring off his finger while he was lying dead. Someone had to do it, but I had the feeling that there should be a designated ring-taker-offer who could then pass it on to her.

So you can file this in the yuk file. My best guess is that she is probably, in fact, a nice person to whom this whole thing was rather unexpected.


Posted by: John Emerson | Link to this comment | 08-14-08 3:39 PM
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Action for partition, I suppose.

I get several emails, sent around the firm, asking for referrals for lawyers doing X, Y, or Z in some place or other. I send them several times a year. Ask a lawyer you trust for 3 recommendations. There isn't any better way, I don't think.


Posted by: Nápi | Link to this comment | 08-14-08 3:46 PM
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Several emails a week, that is.


Posted by: Nápi | Link to this comment | 08-14-08 3:46 PM
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You could ask 3 lawyers to recommend three lawyers each, and then have each of those three lawyers recommend three lawyers in turn, and all of those lawyers three recommendations each and keep going until...

profit!

Or, jail. Or, most likely, people decide you're crazy and stop talking to you.

Or you die, because you didn't forward the letter asking for lawyer recommendations to enough people.


Posted by: Sifu Tweety | Link to this comment | 08-14-08 3:49 PM
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My advice in re Emerson's Friend vs Local Gossiping Fishwives is probably coloured by the fact that I was seemingly the only person in the world who was supporting Anna Nicole Smith's right to her money in that court case, having earned in a series of legal commercial transactions, from an entirely compos mentis old millionaire who appeared to have made an entirely accurate assessment of the worth of his blood relatives, and decided that he was going to spend it before he went, in paying over the odds for what he wanted.


Posted by: dsquared | Link to this comment | 08-14-08 3:54 PM
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15 gets it right. I think once J. Pierpont Tycoon's heirs finally became public figures the public decided that ANS was really not to be rooted against.

And Emerson's friend is just like the ANS story except non-prurient (we think), and on a charming low-stakes level.


Posted by: Fatman | Link to this comment | 08-14-08 3:58 PM
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It would be desirable to settle this without litigation. Is the one in a position to buy out the others? Otherwise (remembering IANAL) I believe it is generally possible to force a sale and division but that the one may (if they want to be a jerk) be able to cause the others a lot of expense and aggravation.

In general I think it is a mistake to hold real estate in common unless the group is really close. Sometimes you have to do something by a deadline in order to preserve valuable rights (like the right to subdivide) and a group may not be able to get its act together in time.


Posted by: James B. Shearer | Link to this comment | 08-14-08 4:05 PM
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Dear ATM,

I realize we have never met before but you have been recommended to me as trustworthy party by International Business Persons. I have recently come into an inheritance worth Twenty Thousand USA Dollers from the late Dr Steinglass Nephew through my loyal care for him in his last years of life. Dr Nephew is without issue and the money would otherwise go to the Royal Treasury of Minnesota. However am currently in under persecution by Mr E, a vindictive Pensioner of Communist persuasion whom I inadvertently offended by noticing Dr T Friedman's The Earth Is Flat in Mr E's trash heap and attempting to salvage same for Dr Nephew's reading. Mr E has threatened to me in no uncertain terms that he will "Sue me into ground" and thus leave me with no livelyhood. I am without monetary ability to defend myself in local circuit ecclesiastical court and am in desparate straits. With your Christian help I can transfer proceeds of Dr Nephew's estate to your bank account temporarily until Mr E abandons his suit. For this service I will pay you a commission of 40% of the total sum. If you please reply ASAP, he is pounding on my door.


Posted by: Boorishly K. Foundry | Link to this comment | 08-14-08 4:14 PM
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2: Given that he had no family, it isn't unusual that he gave his personal property to his caretaker. Had he had descendants and given all to the caretaker, it would have looked fishy, but this situation is pretty routine. I've handled many a probate that had similar provisions [charity & caretaker/nurse/doctor]- there are, unfortunately, a lot of people who outlive their relatives.

1. If the will gives the executor the power to sell the real property, the executor can technically do it without consulting the beneficiaries. In this case, if the holdout can afford to buy out the others, an agreement to do so can be filed with the court and the remaining beneficiaries get to divide the money amongst them. [I suggest getting valuations from at least three local realtors in order to settle on a price] If the holdout cannot buy out the others' shares, a petition can be brought before the probate court directing that a sale take place; it's similar to a partition action, but a real estate lawyer isn't necessary. [The probate attorney should know all this, BTW - why is the executor running around in a quandary??] If the probate is over, the shareholders who want to sell can file a partition action and get the property sold.

How to find an attorney: recommendations from a trusted attorney, as above, or call the local bar association and see if they have a referral service.


Posted by: DominEditrix | Link to this comment | 08-14-08 4:25 PM
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The way to find a lawyer is to phone any reputable lawyer you've got a connection with in the appropriate geographical area, and ask them for recommendations. They'll know someone appropriate, or will know someone who'll know someone appropriate.

This won't necessarily get you the second coming of Clarence Darrow, but it should screen out disreputable incompetents, and you probably don't need the second coming of Clarence Darrow.

And here's another vote for the right of old (non-senile) people to leave their money however they like, so long as no one's pressuring them into anything.


Posted by: LizardBreath | Link to this comment | 08-14-08 4:27 PM
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" Some of my reaction comes from the fact that she took quite a nice ring off his finger while he was lying dead. Someone had to do it..."

Why? Unless it was in his will or something.


Posted by: Ginger Yellow | Link to this comment | 08-14-08 4:27 PM
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--


Posted by: | Link to this comment | 08-14-08 4:28 PM
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Granted that she was, according to the will, going to get the ring, it seemed a bit unseemly for her to start stripping the body as soon as it was cold. Though I doubt that was what happened. It just seemed as though some official person, maybe a sexton, should have gathered up his personal effects and put them into an official de-yukification container before transferring them to her.


Posted by: John Emerson | Link to this comment | 08-14-08 4:32 PM
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I did know a guy alienated from his family who, as soon as he died, came and stripped his house. He hadn't seen them in years.


Posted by: John Emerson | Link to this comment | 08-14-08 4:34 PM
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23: Erm, while it might be more tasteful to have waited, there's also a perfectly good chance someone with less moral right would have beaten her to the ring. Dr. Oops, in her pre-medschool days working in the pathology department at a Boston hospital, was sometimes the official person stripping bodies of rings (and has handy tips about how to do it despite swollen fingers!). She saw Tip O'Neill dead while she was working there, and someone had tried to steal his rings but had been unable to get them off his hands. Did him some damage, though.


Posted by: LizardBreath | Link to this comment | 08-14-08 4:35 PM
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Everybody else's suggestions above about how to find an attorney are fine. I would add that after you get a list of names, you should do a phone-screen/interview of them. Take it seriously and really try to get a sense of the person and how they work.

I'm not saying try to get an hour's worth of free legal advice out of them, but I am saying that you have to suss out whether you will be comfortable with their style and priorities. Even among good lawyers there is lots of variation.

And although personal recommendations and the lawyers' referral service are fine, both can still lead to incompetent referrals. You can't go with the first name on the list and just assume everything is going to be fine. It's really worth it to be an informed consumer.


Posted by: Witt | Link to this comment | 08-14-08 4:37 PM
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Dava Sobel's Longitude, which is a book that might appeal to LB, being about "physics and politics," begins with a ghastly ring-stripping story.


Posted by: I don't pay | Link to this comment | 08-14-08 4:39 PM
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I've read it, but have forgotten the ringstripping story. That's the chronometer book, right?


Posted by: LizardBreath | Link to this comment | 08-14-08 4:41 PM
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If I ever need a ring-stripper, Oops will be the first one I call. I'm confident that she's one of the best, if not the best.


Posted by: John Emerson | Link to this comment | 08-14-08 4:41 PM
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In Dicken's Scrooge book, Scrooge dreams that he's died and various lackeys and lowlives are stripping his room (and him) as he lies there dead.


Posted by: John Emerson | Link to this comment | 08-14-08 4:43 PM
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No need, the trick is simple and intuitive. You take a piece of string, and wrap it tightly around the finger starting from the tip and covering the finger completely down to the ring. This forces fluids out of the finger, and given that the person is dead, they don't come back when you unwrap the finger. Unwrap, and the ring should slip off easily.

I've never had occasion to use this, but practical advice is practical advice.


Posted by: LizardBreath | Link to this comment | 08-14-08 4:45 PM
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26: Hell, it sounds like her probate attorney is incompetent. He/she/it should be handling this.


Posted by: DominEditrix | Link to this comment | 08-14-08 4:46 PM
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Right, the admiral who has ordered the Billy-Budd-like execution of the sailor who kept his own chart survives the wreck, crawls up on the beach and is murdered by a woman in the surf for his ring, which she confesses on her deathbed decades later.


Posted by: I don't pay | Link to this comment | 08-14-08 4:47 PM
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And never eats abalone again, either.


Posted by: John Emerson | Link to this comment | 08-14-08 4:51 PM
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SOMEone's been reading dino comics.


Posted by: ben w-lfs-n | Link to this comment | 08-14-08 5:36 PM
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A shout-out seemed appropriate.


Posted by: Minivet | Link to this comment | 08-14-08 5:45 PM
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31: I imagine that if you were stripping rings all day long, a simple device could be invented that would be more efficient.


Posted by: John Emerson | Link to this comment | 08-14-08 5:48 PM
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37: Felco makes several products that would do the job.


Posted by: Jesus McQueen | Link to this comment | 08-14-08 5:55 PM
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a) ask a slumlord.
b) arsenic.


Posted by: Teve Torbes | Link to this comment | 08-14-08 5:57 PM
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Here's something else that sucks about Olympics news coverage: This story about a wrestler who threw down his medal and stormed out of the medal ceremony over a disputed judge's decision DOES NOT SAY ONE WORD about what the disputed decision was, or how it affected the match in question.

But hey, it's just wrestling, nobody cares about that, right? Not even the people reading a news article about it!


Posted by: Gaijin Biker | Link to this comment | 08-14-08 6:05 PM
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A dark Armenian Swede, as it seems.


Posted by: John Emerson | Link to this comment | 08-14-08 6:19 PM
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OT: Can your ornery old white dude Presidential candidate do this?


Posted by: Not Prince Hamlet | Link to this comment | 08-14-08 7:04 PM
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42: Oh noes! Surfing is what killed Kerry. Hello President McCain. Please don't start a nuclear war.


Posted by: John Emerson | Link to this comment | 08-14-08 7:16 PM
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Looking like a dork on a windsurfer is what killed Kerry. Obama doesn't look like a dork.


Posted by: Not Prince Hamlet | Link to this comment | 08-14-08 7:26 PM
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Dream on. I'm putting all my wealth into a two year supply of staples. In case I have a lot of stapling to do.


Posted by: John Emerson | Link to this comment | 08-14-08 7:32 PM
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Hmmm. Maybe I better apply for political asylum in BC next week just in case.


Posted by: Not Prince Hamlet | Link to this comment | 08-14-08 7:36 PM
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Too bad I don't have any useful skills.


Posted by: Not Prince Hamlet | Link to this comment | 08-14-08 7:36 PM
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With the power of Google News, I found more info about the Swedish wrestler's situation. Translated from the Swedish media, since the US media couldn't care less.


Posted by: Gaijin Biker | Link to this comment | 08-14-08 7:41 PM
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This comment from the link in 48 says it all:

Ara became punished for something called Ring Escapement, where you try to get out of the ring when you're in an unfavourable position. It's considered bad sportsmanship, and if you succeed you might get punished with a warning. Ara reached the edge of the ring with one finger (!) and because of that he lost the entire match. Some might call that harsh but fair judgement. This is that the Italian was several times outside the ring with the entire body, and didn't get even a warning for that. That was the big thing, but the match was filled with small things as this one: the Italian hit's Ara in the head when Ara is in a strong position. The judges breaks up and puts a head bandage on Aras head, a proceedure that takes at least 30 seconds, time that the Italian can use for resting. The Wrestling system is corrupt. What Ara did can make him the martyr the sport need, bringing light to the filthy system.

It sucks that they can't keep bullshit judging out of even a sport like wrestling, where there are simple rules and no need for a judge's opinion of the aesthetic merits of a performance. Bleh.


Posted by: Gaijin Biker | Link to this comment | 08-14-08 7:44 PM
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It occurs to me that asking for lawyerly assistance on the internets is maybe not the best way to go, but perhaps that's just me.

I also supported Anna Nicole Smith (well, "supported" ... I mean, I hoped she would win, and was basically rooting for her in my capacity as a passive spectator of the theatre of the absurd, but it's not like I submitted an amicus brief or anything). But the case cited by Emerson is rather different.

Call me crazy for still clinging to the outmoded categories of ye olde English common law, but I do think married to one another (or effectively married to one another: you know, the "common law relationship," which may or may not be a "meaningful relationship," as currently understood, but you know, you do have to draw the line somewhere) is somewhat different than the employer/employee relationship. Please don't ask me to get down and dirty with the specifics, I'm sure you know what I mean.

When I worked as a scullery maid "dietary aide" at a nursing home (so depressing that job, but: union wages! and time-and-a-half for holidays), we were strictly forbidden to accept gifts or promises of gifts from any resident. Reason being: elderly people, even when completely lucid (which many still are, of course, up to the point of their our inevitable death) are often quite emotionally vulnerable in all sorts of ways, and it would be too easy for an unscrupulous person to take advantage....


Posted by: Mary Catherine | Link to this comment | 08-14-08 7:55 PM
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. jews in america aren't native north americans(unless they converted) but jews. armenians in the middle east aren't middle eastren ... look at a map for once.


Posted by: John Emerson | Link to this comment | 08-14-08 7:57 PM
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50: That was what I was asking. According to what I was told, the 90+ guy had no kin, and the fact that most of his estate went to his church somewhat supports that.

But if I was the contracting agency or the state, I might think twice.

I do not suspect hanky panky or foul play -- more a precedurally dubious transaction.


Posted by: John Emerson | Link to this comment | 08-14-08 7:59 PM
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I'm not a sexist pig or anything, but lets not let the word 'executrix' leave our language.


Posted by: yoyo | Link to this comment | 08-14-08 8:13 PM
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asking for lawyerly assistance on the internets is maybe not the best way to go, but perhaps that's just me.

It seemed prima facie plausible to ask a blog read by many lawyers for advice about finding lawyers. In fact this strategy has worked out well.


Posted by: FL | Link to this comment | 08-14-08 8:13 PM
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But who does it hurt? The old man was fond of her, and didn't have anyone closer he wanted to leave anything to -- where's the wrong done to anyone? He's no worse off, no one else is any worse off (other than that his church got a smaller bequest than they might have), and he got to know that he made someone he liked's life easier. (I can see perfectly good reasons for a policy like the one MC described in a nursing home, where you've got essentially captive residents, many of whom are going to be not fully in command of their faculties, but not generally.)

Were I a dying old person with no family and a caregiver I liked, I'm guessing that I'd be delighted at the chance to be Santa Claus at the end, and randomly make a nice person's life easier at no cost to myself.


Posted by: LizardBreath | Link to this comment | 08-14-08 8:17 PM
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But Dsquared won't tell us how to get rich on the stock market. He hates us because we're yuppies, Americans, cool as shit, and English oppressors.

We all know that there are sidewalks where the $20 bills are strewn so thickly that you can pick up as many of them as you can physically carry away, but our so-called "friend" refuses to tell us where these sidewalks are.


Posted by: John Emerson | Link to this comment | 08-14-08 8:18 PM
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At this point I'm pretty sure that there was no harm. But it still remains procedurally a little troubling.

Also, I'm no longer so sure that I want to give LB power of attorney during my declining years, and I guess I should put my rings in a safety deposit box.


Posted by: John Emerson | Link to this comment | 08-14-08 8:22 PM
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And further, even assuming that the caregiver was completely in it for the money, if the guy could buy a little extra end-of-life diligence and care with a promise of a bequest, while she may be mercenary that still doesn't sound like a bad deal for him.


Posted by: LizardBreath | Link to this comment | 08-14-08 8:22 PM
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56: The true Masters of the Universe never tell.


Posted by: JP Stormcrow | Link to this comment | 08-14-08 8:22 PM
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I know a guy who got an inheritance big enough to allow him to change careers because he was friendly and helpful to an old guy he met at the gym. Basically they were just buddies -- my friend did a few things for the guy that he couldn't do for himself -- but the guy had no one else in his life.


Posted by: John Emerson | Link to this comment | 08-14-08 8:24 PM
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I want to give LB power of attorney during my declining years

I make great cookies. And those last couple years of life expectancy aren't much fun anyway; no sense stretching the process out longer than it needs to be.


Posted by: LizardBreath | Link to this comment | 08-14-08 8:24 PM
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I think that the putting the pillow on his face and sitting on it was the problematic part. She claims he asked her to do it.


Posted by: John Emerson | Link to this comment | 08-14-08 8:25 PM
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I am still looking for some modern-day Faulkner to write up Anna Nicole Smith's death in As I Lay Dying style, complete with the family discord and ultimate transport across water to burial (buried 20+ days after she died!).

My mother is a carp!


Posted by: JP Stormcrow | Link to this comment | 08-14-08 8:28 PM
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62: Last words. No! Directly on my face you idiot! ...mmmf... mmf mmf.


Posted by: JP Stormcrow | Link to this comment | 08-14-08 8:30 PM
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58

"And further, even assuming that the caregiver was completely in it for the money, if the guy could buy a little extra end-of-life diligence and care with a promise of a bequest, while she may be mercenary that still doesn't sound like a bad deal for him."

Well as long as she isn't tempted to speed things up.

And it can be a bad deal for her if she puts up with abusive treatment (or low wages) in hopes of a bequest. Particularly if said bequest is not forthcoming in which case she is likely to have little recourse.

That said this case seems pretty far down on the list of things to worry about.


Posted by: James B. Shearer | Link to this comment | 08-14-08 8:47 PM
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But it still remains procedurally a little troubling.

Emerson, am I confusing you with McManus, or are you not against proceduralism?

In any case, yes, people who work contractually with the old and dying are sometimes legally, sometimes just ethically, exhorted not to receive gifts from them. It's a thorny area; I know my mother, who worked before her retirement as a private duty nurse for a series of infirm people, had made a firm rule not to be written into any wills, and actually had to fight with at least one of these people over this. They loved her, and she them; her relationships with them lasted years. It was difficult for her when they died (she was an R.N., so was really full-duty).

I don't think any more procedural oversight of all this is needed beyond a careful assessment of the soundness of mind of the dying person in changing a will.

Shorter me: shit happens.


Posted by: parsimon | Link to this comment | 08-14-08 8:50 PM
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Bob and I are two completely distinct individuals. I sympathize but do not entirely agree with him on proceduralism.

Basically, if I was running an agency that recruited home caregivers, etc, and this woman worked for me, I might be thinking things over now.


Posted by: John Emerson | Link to this comment | 08-14-08 8:54 PM
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67

"Basically, if I was running an agency that recruited home caregivers, etc, and this woman worked for me, I might be thinking things over now."

Well firing her is kind of pointless. You would need an employment contract which forbid accepting gifts or bequests. Don't know if this is enforceable. No doubt it would appeal to the heirs when they are the ones arranging for care.


Posted by: James B. Shearer | Link to this comment | 08-14-08 8:59 PM
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Bob and I are two completely distinct individuals.

I must be tired, because this is making me giggle.

I mean, chuckle. Yeah.


Posted by: parsimon | Link to this comment | 08-14-08 9:04 PM
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I certainly would think things over, just asking, "What is our policy on this?" I have never said anything about firing anyone.


Posted by: John Emerson | Link to this comment | 08-14-08 9:05 PM
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and English oppressors.

Yeah, those English oppressors. Bloody fecking bastards.

Oh, I'm sorry. You meant oppressors of the English? Yeah, them too. I'd rather be oppressed by the English than by the Americans any old day of the week, the English being less neurotic and enthusiastic...


Posted by: Mary Catherine | Link to this comment | 08-14-08 9:06 PM
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2: The woman took care of the old man for a "several years" for part-time wages? And he had no friends or family who would take care of him?

Why is it suspicious that he'd leave her his movable goods, one, and two, distasteful that she took the ring, and three, does this woman really deserve to be thought of as a prostitute? What matters in the end is who takes care of you; and given that she *was*, after all, a paid caregiver and not a family member, maybe she knew that his hands would swell and/or simply didn't feel the sentimental "ick" factor that you seem to.

But really, looking down on her is hella tackier than anything it sounds like she's done.


Posted by: bitchphd | Link to this comment | 08-14-08 9:09 PM
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What matters in the end is who takes care of you

John I think B's telling you to blackmail the woman.


Posted by: Sifu Tweety | Link to this comment | 08-14-08 9:11 PM
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I'm telling John that fretting over whether or not some poor underpaid worker is gonna steal his money after he's dead is pathetic.


Posted by: bitchphd | Link to this comment | 08-14-08 9:12 PM
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At the place I had physical therapy for something like 6 months, there was a written policy (to be signed) stating in effect that one understood that there was to be no fraternizing. I had to laugh: it said, in essence: don't get a crush on your P.T., okay? Just don't!

The warning was well-advised, of course, though I regretted the no-fraternizing rule in a couple of cases. I got along quite well with a couple of the technicians there, and could easily have become friends with them. We traded tips on good hiking trails and such.


Posted by: parsimon | Link to this comment | 08-14-08 9:13 PM
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I agree with John w/r/t the need for rethinking things. This is one of those issues where (I think) there's good reason for a general policy that will rule out some individual actions that are a-ok along with many that are not.

I now return to arguing about something very boring.


Posted by: FL | Link to this comment | 08-14-08 9:13 PM
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...


Posted by: | Link to this comment | 08-14-08 9:14 PM
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68 -- Probably employed at will, so, no.


Posted by: Nápi | Link to this comment | 08-14-08 9:16 PM
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B, I just raised the question. She wasn't taking care of him day and night, she was coming in now and then to help out, do errands and check up on him. I don't know her at all well, but I tend to believe everything's OK. But I did a doubletake when she showed up wearing the ring the day after he died.

Also, on my deathbed I'm going to have someone count my rings before and after your visits, just like with LB and Oops. Us rich old guys have to be watchfull.


Posted by: John Emerson | Link to this comment | 08-14-08 9:19 PM
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This wasn't a poor underpaid worker. It was a $50,000+ / year state employee who moonlighted a lot.


Posted by: John Emerson | Link to this comment | 08-14-08 9:20 PM
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78

"Probably employed at will"

Not with an employment contract.


Posted by: James B. Shearer | Link to this comment | 08-14-08 9:25 PM
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This is one of those issues where (I think) there's good reason for a general policy that will rule out some individual actions that are a-ok along with many that are not.

There is a general (contractual, legally binding, on pain of losing one's job, at least) policy already in many places that hire out health care workers. I'm not sure what else one might call for: actual laws?

I imagine one might mandate that all such health-care contracting outfits have such clauses in their contracts.


Posted by: parsimon | Link to this comment | 08-14-08 9:25 PM
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But really, looking down on her is hella tackier than anything it sounds like she's done

Of course, not all of us are actually looking down on her even as we raise potentially troubling questions...We're just trying to grapple with the possible ethical dilemmas, ... and anyway, it's a damn comment thread at a blog.

(I'll never forget when Mr [insert Scotland-to-Canada surname here] was put into restraints on the second floor, just because he got a bit loopy on his meds or something. He was an old farmer from the Scotch Line, and he always wore a flannel tartan shirt with suspenders, and he was a true sweetheart. He looked at me briefly, just enough for me to register to his sense of disgrace, and then he bowed his head in shame. Me, I went out to the parking lot and cried, and I felt so angry, and so utterly powerless to do anything).

The elderly really are very often quite remarkably vulnerable. Any position on the disposition of their property which doesn't recognize this vulnerability is pretty much bullshit, I believe.


Posted by: Mary Catherine | Link to this comment | 08-14-08 9:28 PM
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[insert Scotland-to-Canada surname here]

MacAtlanticeh?


Posted by: Sifu Tweety | Link to this comment | 08-14-08 9:29 PM
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79, 80: John, I'm not sure you made this clear before. It does change things. Don't we have a medical ethics person around here?


Posted by: parsimon | Link to this comment | 08-14-08 9:38 PM
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85 -- Baltimore's own Hilzoy, although I suppose ttaM fits the description as well.


Posted by: Nápi | Link to this comment | 08-14-08 9:45 PM
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Medical ethics are simple, man. Do what feels good, and love yourself.


Posted by: Sifu Tweety | Link to this comment | 08-14-08 9:49 PM
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81 -- That would depend on the contract, if there is one. Part-time home health care worker? Don't expect a contract with much in the way of protection.


Posted by: Nápi | Link to this comment | 08-14-08 9:52 PM
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MacAtlanticeh?

Yeah, him too.

There was another man, a Catholic, who had received some sort of dispensation from the Vatican to join some sort of weirdo Masonic organization, and he insisted on showing me the papers. He had fought in WWII, and had helped liberate a camp, and he hated with a passion his Canadian-German table-mate who made light of the whole affair. "Oh, don't tell me!" he once sputtered with rage, "I saw it, I was there." Loved that guy too. He was awfully quick and nimble with his wheelchair. I hate that he died in a nursing home.


Posted by: Mary Catherine | Link to this comment | 08-14-08 9:53 PM
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Oh, I see 80. Which didn't seem consistent with 2, but no reason to hold anyone to anything.


Posted by: Nápi | Link to this comment | 08-14-08 9:53 PM
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The elderly are vulnerable, yes, which is one reason why I say fuck it: if the woman took good care of the man, which there appears to be no reason to doubt, and no one else would do it, who gives a shit what happened to his money afterwards?

I don't buy the "I just raised the question" defense. Raising the question implies wrongdoing. Based on seeing the woman wearing a ring the day after the man died. My mil wears her dead husband's ring; should I be speculating about her motives?


Posted by: bitchphd | Link to this comment | 08-14-08 10:15 PM
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Baltimore's own Hilzoy

What's that, now? Hilzoy is in Baltimore? I was thinking of ttaM, sort of. Or maybe rob.

The elderly and infirm are vulnerable, yes. We might consider them as children in that way, but that would be a bit off. They can't be analogized (as it should be). We should actually work out ways to understand the aged, given that they are among us, and as it stands, we tend to ignore them. There are people out there who do this work, you know. They can help.

(/painful irony)


Posted by: parsimon | Link to this comment | 08-14-08 10:18 PM
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there was a written policy (to be signed) stating in effect that one understood that there was to be no fraternizing. I had to laugh: it said, in essence: don't get a crush on your P.T., okay? Just don't!

Huh, that's odd. You'd think that would go without saying, or, more to the point, putting into a contract.

As it happens, I had PT for my back a few years ago (I blame my children, as usual), and I had a crush on my smoking hot therapist. I'd have fraternized with her in a heartbeat.


Posted by: Jesus McQueen | Link to this comment | 08-14-08 10:42 PM
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should I be speculating about her motives?

Did she murder him?


Posted by: apostropher | Link to this comment | 08-14-08 10:46 PM
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93: I would have with mine as well. Also a back problem that I had. However, my PT wasn't really my type. It would never have lasted.


Posted by: parsimon | Link to this comment | 08-14-08 10:57 PM
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She wasn't taking care of him day and night, she was coming in now and then to help out, do errands and check up on him.

He also didn't have any heirs, right? Maybe he just didn't want it going to the state. Elderly people have left estates to waitresses before.


Posted by: Cala | Link to this comment | 08-14-08 11:25 PM
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I was thinking of ttaM, sort of. Or maybe rob.

Rob more than me, I think. Or that's my impression from unfogged-comments-past. I work more on the foundational stuff -- defining disease and dysfunction, analyses of well-being, etc. -- that feeds into medical ethics than I work on medical ethics itself.


Posted by: nattarGcM ttaM | Link to this comment | 08-15-08 12:20 AM
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It just seemed as though some official person, maybe a sexton, should have gathered up his personal effects and put them into an official de-yukification container before transferring them to her.

Maybe there is some such official person in Wobegone, but in the case of the three close relatives I've been executor for, it was left to family to tidy up when they died, because the state was outta there. It's more likely than not that if I live to be 90 (which god forbid), I will have no surviving relatives, so let me put it on record here and now that in that case anybody who has brightened my twilight years by fetching my shopping and cleaning my dishes will be more than welcome to anything they can carry away.


Posted by: OneFatEnglishman | Link to this comment | 08-15-08 1:35 AM
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does this woman really deserve to be thought of as a prostitute?

perhaps not, but nor does Paris Hilton. What's the point in gossip if it isn't malicious?

I think I wrote a post on CT about how basically all non-fraternization requirements in contracts are bullshit. I mean really, they are. Why the hell shouldn't you have a crush on your physical therapist (or vice versa) if you want to?


Posted by: dsquared | Link to this comment | 08-15-08 3:34 AM
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Bullshit conceptually, or bullshit in terms of enforceability? Because professional medical etc. bodies tend to enforce them like gangbusters, given the opportunity - takes people's eye off all the other questionable stuff they prefer to overlook. I can see the argument that people who are losing it a bit should be protected from predatory acquaintances, but most of the predatory acquaintances in these cases are family factions, so it'll be a clever politician who comes up with a saleable formula for that.


Posted by: OneFatEnglishman | Link to this comment | 08-15-08 3:44 AM
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Bullshit conceptually - the professional world is indeed going mad keen over these encroachments on people's private lives and they shouldn't.


Posted by: dsquared | Link to this comment | 08-15-08 4:18 AM
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Agreed.


Posted by: OneFatEnglishman | Link to this comment | 08-15-08 4:25 AM
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91: You're crazy, B. I wasn't defending myself at all, I was explaining. If you read what I started off saying, I said that my guess was that it was all totally innocent, but that I thought there was an issue. But, yes, I did raise the possibility either that there was an actual problem, or a potential or a procedural problem.

The issue would be the same if the caregiver were a man or a woman, and it would be the same if the caregiver were black or white, or rich or poor. As it happens, in this case it was a well-off white woman.

What if you were running a care contracting agency and you found out that one of your staff was consistently getting put into people's wills?

I don't see the place where she was being compared to a prostitute.

I had a crush on a cute, flirty doctor with a tattoo once. She seemed mildly flattered, but I doubt that medical ethics was the only reason things didn't go anywhere.


Posted by: John Emerson | Link to this comment | 08-15-08 4:59 AM
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I have to say, I live in hope of befriending an old person and being left a house - it's a recurrent, though occasional, fantasy. I met a new potential candidate this week in fact, although he does have his own family already.

So, OFE, where d'you live then? And exactly how old did you say you were?


Posted by: asilon | Link to this comment | 08-15-08 9:12 AM
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On a vaguely relate front, NM statutes (45-5-311) say:

"... no individual who operates or is an employee of a boarding home, residential care home, nursing home, group hme or other similar facility in which the incapacitated person resides may serve as a guardian for the incapacitated person ... "

That strikes me as sensible because of the inherent conflict of interest. The sitiation with health care providers and beneficiaries is a bit different, but I think there's still something of a conflict.

As a principle, one who is paid a salary shouldn't expect additional payments, especially when the salary is coming from a third party. When a government employee expects a bit on the side, we call it a bribe. When a food servic person does it, we call it a tip. When a privately paid health care person gets a really big tip we tend to wonder if there was some level of extortion (you want decent service, you tip big, else we spill the soup on your lap). When a medicare paid person does it, there's the problem of serving two paymasters.


Posted by: Michael H Schneider | Link to this comment | 08-15-08 9:18 AM
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While I was on the board of our local community hospital we had a entire staff of fundraisers whose job it was to solicit the local gentry for contributions, including bequests, charitable remainder trusts etc. The head of this department received a six figure salary. It came to our attention that he had received a personal gift from a Major Donor, an old lady whose husband had been the Chief of Surgery. She had no other heirs and the hospital staff doted on her since she had made the hospital the sole beneficiary. The Director of Development would frequently take her out to dinner, escort her to parties, etc. and she asked if she could do something nice for him, and he allegedly asked for some dough. Needless to say, he was fired.


Posted by: Tassled Loafered Leech | Link to this comment | 08-15-08 10:51 AM
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This thread seems an appropriate place to bitch that I worked for TWO YEARS courting a "donor" who lent a large collection of rare books to the university library, doing an "experiment" to see if enough people would use them. I incorporated them into my dissertation, as did several other people, arguing to him, repeatedly, that there was nowhere else we'd ever find these materials, so he had to donate them to us. He talked for a total of seven years about his philanthropic commitment to making his collection available to the public, and useful to scholars, and keeping them all together (they're really only very valuable as a whole collection). Every year, he gave us more and more of his collection. Then, last week, he decided to sell the whole thing off, piecemeal, at auction, ending the employment of a dedicated and talented librarian (who, BTW, is currently suffering a medical crisis and needed the insurance) and a research fellow, losing the space in the building, which was previously dedicated to talks in our field, and basically ruining the dissertation work of about 20 students, as well as about a dozen professors who were using those texts in their next books. I am FURIOUS. For seven years, the university has given this guy royal treatment---front-row seats at every event, an honorary degree, his name on the wall, etc. And he just dropped everything because the perks ran out and he wanted the money after all.

HUGE mismanagement by our development people and administration, yes, but still unbelievably manipulative, greedy, and wicked on the part of a man who already has an over $50 million estate.


Posted by: Sarah C. Polk | Link to this comment | 08-15-08 11:02 AM
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107: Ouch. Sounds like a real asshat.


Posted by: soup biscuit | Link to this comment | 08-15-08 11:10 AM
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105, 106: These are interesting in terms of 'who's being wronged.' Particularly for the hospital case, the wrong seems to be a wrong done to the hospital -- the Director of Development used the hospital's resources to create a personal relationship between himself and the donor, and then parlayed that into a bequest. What he did was something like embezzlement or moonlighting on company time. And I can see that same form of thinking for a caregiver-for-hire paid by a third party: "We've made a deal that your compensation is X; you may not engage in side activities while on the job (like endearing yourself to the patients and persuading them to leave you money) that will increase that compensation." That all makes perfect sense.

I still don't see anything wrong with the bequest in Emerson's friend's case if it was the patient's, rather than the caregiver's, idea.


Posted by: LizardBreath | Link to this comment | 08-15-08 11:12 AM
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104. I live in Sheffield, I'm only turned 57 last weekend and I'm a few years older than my wife. Don't get your hopes up too far.


Posted by: OneFatEnglishman | Link to this comment | 08-15-08 11:18 AM
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108: He's 95 years old, never had a job in his life. He's shown several signs of having no consistency, from day to day, in what he actually thinks he's doing, and he recently married a much younger woman who, I believe, has been part of the push to get as much special treatment as possible and get out without actually donating anything. They both really liked the flattery (oh, how generous of you! oh, what a great man!), but I think they felt it was running out, and the Big Famous Auction House they hired has pro PR people to make them feel stroked about their greed. We're not pros.


Posted by: Sarah C. Polk | Link to this comment | 08-15-08 11:18 AM
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Sarah, I'm saddened to hear that. Sounds like a lot of people expectations have been shattered.


Posted by: soup biscuit | Link to this comment | 08-15-08 11:21 AM
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and you found out that one of your staff was consistently getting put into people's wills?

Consistently? I thought the story was that this had happened just the one time.

Sarah's story is really sucky, but in the spirit of contrairianism, one wonders why it's okay for organizations to flatter and court old people in hopes of getting their money and effects, but when individuals do it OMG ITS SO EVIL.


Posted by: bitchphd | Link to this comment | 08-15-08 11:37 AM
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113: One wonders why public education is so unbelievably badly funded that, in order to be able to support the research and work of its students at a competitive level, they have to enlist even their own students in a parade of ass-kissing that is so often heartbreaking and fruitless. (Let it be known that the real treasures of the collection were removed to be donated to---you guessed it---an Ivy League school that could afford to flatter him even more aggressively.)


Posted by: Sarah C. Polk | Link to this comment | 08-15-08 11:41 AM
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113: Oh, absolutely. That's been increasingly the case since the 70s, and it's mostly Reagan's fault. That and the "omg we have to integrate? Screw that!" scorched-earth policy.


Posted by: bitchphd | Link to this comment | 08-15-08 11:45 AM
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113: The solicitation of charitble bequests is (presumably) an arms length transaction in which everyone knows what's going on and either one is free to walk away.

With a caregiver there are other factors:
- the possibility that the caregiver is (subtly or not) conditioning the quality of care on the receipt of gifts;
- the serious difficulty of replacing a caregiver, in some circumstances;
- the possibility of leveraging a semi-professional relationship into personal advantage, to the detriment of all such semi-professional relationships.

Yes, they're both like confidence rackets, but with the charitable organizations it's open and acknowledged and there's no taint of possible coercion.


Posted by: Michael H Schneider | Link to this comment | 08-15-08 11:49 AM
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There was a This American Life recently where a daughter was concerned that one of her father's caregivers was stealing from him. Ended up being a very affecting story.


Posted by: mrh | Link to this comment | 08-15-08 12:16 PM
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Wherever you have vulnerable people, you'll find parasites preying on them. It's a long jump from there to assuming that any caregiver named as a beneficiary is one.


Posted by: soup biscuit | Link to this comment | 08-15-08 12:19 PM
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It's a long jump from there ...

True. It's difficult and messy and all I intended to be saying is that there's reason to be concerned.

When my aunt died in an assisted living facility in Queens I was executor. The rumor went 'round the building and bunches of staff came around because they'd heard (falsely) that we were giving things away. It was rather distressing, and felt wrong.

On the subject of finding a lawyer, I do suggest asking about price in the original screening. Don't hire anyone who is vague or simply says "trust me". I had to hire a lawyer for my aunt's estate, and I went through the yellow pages (best I cold do amongst the relatives). I got estimates from $1,500 to (more commonly) $15,000. Of course, the $1,500 guy changed the body of a document after I'd subscribed and sworn to its truth, in a way which cost me (and netted him) an extra couple of hundred, but that's apparently to be expected.


Posted by: Michael H Schneider | Link to this comment | 08-15-08 12:47 PM
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116: Yes, of course.

I guess though that I'm extremely inclined to be both sympathetic to and immensely grateful to caregivers, given my aunt's situation. She's getting very good care in a nursing home, and if any of her caregivers hoped or asked for anything after her death, I would so not blame them. I don't *expect* them to be emotionally invested in her the way a relative would be, but ironically they're much, much better ad more responsible about taking care of her and meeting her needs than I am, or her son, or her brother (my dad) or even her best friend who visits her every day. So if, once she no longer needs that care, their emotional distance were to lead them to come around hoping for handouts, I mean, whatever. Who gives a shit about proper respect for the dead, especially from the people who were by far the most respectful to her while she was alive?

(I doubt it'll happen, because obviously most people would be offended, but I'm just saying.)


Posted by: bitchphd | Link to this comment | 08-15-08 1:08 PM
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Coincidentally, this was the front page story on the newspaper at the door of my hotel room this morning.


Posted by: KR | Link to this comment | 08-15-08 1:30 PM
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Who gives a shit about proper respect for the dead, especially from the people who were by far the most respectful to her while she was alive?

I agree with you completely, but I don't think "respect for the dead" genuinely plays into it at all. The concerns seem to be either fear of undue influence/manipulation of a vulnerable party by the caregiver or indignation that "more deserving" parties got screwed out of their "rightful" inheritance. The former concern is, perhaps, not unreasonable and I vaguely remember the law school cases where the evil caregiver alienated the poor old victim from his or her entirely family during those precious final days, thereby securing that windfall inheritance. The latter concern... Nobody has any right to an inheritance. Nobody. What you get, if anything, is a gift and damn well should be seen that way. People who live their lives planning on their inheritance like some sort of an entitlement have no sympathy from me.

I bet if I read the whole thread this has laready been said.


Posted by: Di Kotimy | Link to this comment | 08-15-08 1:39 PM
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Yeah, the "proper respect" thing was more specifically about Michael Schneider's saying it "felt wrong" to have the caregivers come around b/c there was a rumor he was giving stuff away. Which clearly wasn't exactly *tactful*, but I can't quite bring myself to find it blameworthy, either.


Posted by: bitchphd | Link to this comment | 08-15-08 1:45 PM
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(Al that said, it's a very good thing that I don't have a job where I deal with grieving people, because I know that I am kind of cold-blooded about this sort of thing. If the dead person were one of my pets or, god forbid, PK, I'd feel very differently, of course.)


Posted by: bitchphd | Link to this comment | 08-15-08 1:46 PM
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If the dead person were one of my pets

I knew it! You're a PETA mole!


Posted by: A White Bear | Link to this comment | 08-15-08 2:26 PM
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One wonders why it's okay for organizations to flatter and court old people in hopes of getting their money and effects, but when individuals do it OMG ITS SO EVIL.

You're being crazy again. There's a specific problem with caregivers dealing with vulnerable people. Also with employees of an organization getting enormous tips (from vulnerable people). My original question was really on the lines of "While I don't think there was an actual problem here, I think that there's something a bit problematic about the way it happened."

There is an ongoing problem with caregivers ripping off their clients (including, e.g., faked signatures). For that reason we need legal safeguards of some sort. I had a feeling that there should have been more safeguards in this case, even though the outcome might have been the same.


Posted by: John Emerson | Link to this comment | 08-15-08 2:39 PM
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... Schneider's saying it "felt wrong" to have the caregivers come around b/c there was a rumor he was giving stuff away ...

Well, it all certainly felt very tacky, as if I'd somehow become the host of one of those game shows where the lucky contestant got to go into a store and keep as much as they could grab in 60 seconds, or something. I didn't want to get into the position where who got what depended on who was on shift at the time, who was best tied into the rumor net, who could most easily shirk duties and come to the door, etc. As it turned out I'd have been delighted if there had been some organized way to give a lot of stuff to the facility itself, either to be shared fairly among staff or sold (perhaps in a thrift store) for the benefit of the institution. So at the time I just said "no" to everybody, to give myself time and opportunity to figure out what was what.


Posted by: Michael H Schneider | Link to this comment | 08-15-08 3:42 PM
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126 is right. There's a difference between a sick elderly person seeking a caregiver, whom they desperately need, and an elderly person seeking a college or non-profit that would be the best place to donate to in their will. Kissing up in the second instance is what they came to get.


Posted by: A White Bear | Link to this comment | 08-15-08 3:45 PM
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127: FWIW, I totally think that what you did was the right thing, and of *course* it was tacky.


Posted by: bitchphd | Link to this comment | 08-15-08 4:06 PM
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Just to be contrarian for the sake of contrarianism, I am close to a couple that took care of an elderly gentleman (their neighbor) for the last years of his life. Thanks to their tireless, entirely uncompensated efforts--which included, I kid you not, manually removing impacted feces from the guy's rectum--he was able to live in blissful peace in his own home until the night he died in his sleep.

In his will, the couple got nothing (and they really could have used it), while the guy's ne'er-do-well stepson, his sole surviving heir, who scorned his stepfather and never lifted a finger to help him while he was alive, got everything.

The couple took it all in stride--it was the neighbor's money to bequeath, after all--but I would not have held it against them if they had at least *asked* the guy to think of them in his will.


Posted by: Knecht Ruprecht | Link to this comment | 08-15-08 4:36 PM
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122

"... Nobody has any right to an inheritance. Nobody. What you get, if anything, is a gift and damn well should be seen that way. People who live their lives planning on their inheritance like some sort of an entitlement have no sympathy from me."

I don't agree. Many people have a legal right to an inheritance and others have a moral right.


Posted by: James B. Shearer | Link to this comment | 08-15-08 5:06 PM
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I believe that the remaindermen can sue the beneficiary of a trust if they can prove the trustee "wasted" the trust.


Posted by: Tassled Loafered Leech | Link to this comment | 08-15-08 5:11 PM
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130 is the kind of story that really makes me wish I believed in god.


Posted by: bitchphd | Link to this comment | 08-15-08 5:17 PM
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If you believed in God, B. then God would make sure stuff like 130 didn't happen. But no. So God acts like a little bitch, and the rest of us suffer. Happy now?


Posted by: Tassled Loafered Leech | Link to this comment | 08-15-08 5:31 PM
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If god's that fucking dependent on my stupid opinion, then he sure as shit doesn't have the power to prevent horrible things from happening. Q.E.D.


Posted by: bitchphd | Link to this comment | 08-15-08 5:37 PM
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That's how much he loves you, B.


Posted by: Jesus McQueen | Link to this comment | 08-15-08 5:38 PM
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God needs to get some therapy for his codependency issues.


Posted by: bitchphd | Link to this comment | 08-15-08 5:41 PM
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Er, He. Sorry, Big Guy.


Posted by: Jesus McQueen | Link to this comment | 08-15-08 5:41 PM
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By the way, Mr. Leech, I think you might enjoy the latest installment of the B-buys-a-house story, if you haven't read it already.


Posted by: bitchphd | Link to this comment | 08-15-08 5:42 PM
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I guess I forgot to tell B that houses, to the extent that they are separable from relationships, are worse than relationships.


Posted by: John Emerson | Link to this comment | 08-15-08 5:46 PM
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What a nightmare, B. Houses are a pain in the ass. Fly me down there and I'll help you replace the plumbing (I'll be fresh from replacing my own).


Posted by: Jesus McQueen | Link to this comment | 08-15-08 5:59 PM
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141: Be careful what you offer.


Posted by: bitchphd | Link to this comment | 08-15-08 6:46 PM
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130 is the kind of story that really makes me wish I believed in god.

Yes, it's the question that has perplexed theologians, clergy and laiety alike for centuries: "Why do good things happen to bad people?"


Posted by: Knecht Ruprecht | Link to this comment | 08-15-08 8:28 PM
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139: Jesus Christ, B--what a horrible story.

On an unrelated note, we have a new roach infestation. And yes, infestation is the right word--there are thousands. Lovely.


Posted by: Brock Landers | Link to this comment | 08-15-08 11:37 PM
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"the parents weren't there when we arrived, and the teenage son got pissed off, took a shit in one of the toilets and didn't flush, and then left the house"

Wow.

Brock, that is teh mucho suck.


Posted by: apostropher | Link to this comment | 08-16-08 12:55 AM
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I *assume* that's why there was an unflushed turd. At least, I hope that's why.

I'm sorry about the roaches, Brock. Roaches are one of the few animals that it's perfectly okay to kill.


Posted by: bitchphd | Link to this comment | 08-16-08 1:25 AM
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