According to the United States Census Bureau, women make up nearly half of the United States work force.[i] Notwithstanding, as of 2019, women make up only 27% of workers in the fields of science, technology, engineering and mathematics (“STEM”).[ii]  “Women employed full-time, year-round in STEM occupations earned more than their non-STEM counterparts but the gender earnings gap persisted within STEM occupations.”[iii] Men also outnumber women majoring in most STEM fields in college. [iv] “The gender gaps are particularly high in some of the fastest-growing and highest-paid jobs of the future, like computer science and engineering.”[v]

“Women and minorities are severely underrepresented in STEM, often because they were not encouraged to early on. In a 2010 survey by the Bayer Corporation of female and minority chemists and chemical engineers, 77 percent said significant numbers of women and minorities are missing from the U.S. STEM work force because ‘they were not identified, encouraged or nurtured to pursue STEM studies early on.”’[vi]

In an attempt to address this issue, on December 22, 2021, Governor Hochul signed a Bill[vii] “directing the urban development corporation to conduct a study regarding the assistance needed to encourage women and minorities to pursue technology careers in science, technology, engineering and mathematics (STEM)”. It is hopeful that: “[t]his bill will help identify the types of assistance necessary to encourage more women and minorities to enter STEM fields.”[viii]

According to Senator Anna M. Kaplan, “[s]o many employers in today’s high-tech, global economy consistently struggle to find enough qualified individuals to fill the high-skill, high-paying jobs they create, and the workforce has never been truly reflective of the diversity of our community. It’s time we helped more young women and people of color to pursue careers in the fields of science, technology, engineering, and math, and by encouraging these underrepresented groups to pursue STEM studies, we can provide greater opportunities for more young people in our community, and fill a critical need for workers skilled in the areas of demand in today’s economy.”[ix]

According to Assemblymember Linda B. Rosenthal, “[t]his new law will help increase the numbers of women and minorities who pursue technology-based careers. While some of the fastest-growing and highest-paying jobs are in the STEM field, the number of women and people of color employed in these fields continues to lag behind. A better understanding of the availability of grants designed to encourage underrepresented people to pursue careers in STEM is vital to help level the playing field and ensure access to well-paying and intellectually stimulating jobs.”[x]

For further information, please contact Christopher E. Vatter at cvatter@jaspanllp.com or Samantha M. Guido at sguido@jaspanllp.com.

[i] https://www.census.gov/library/stories/2021/01/women-making-gains-in-stem-occupations-but-still-underrepresented.html (men make up 52% of the workforce).

[ii] Id.

[iii] Id.

[iv] https://www.aauw.org/resources/research/the-stem-gap/

[v] Id.

[vi] https://www.governor.ny.gov/news/governor-hochul-signs-legislation-addressing-labor-and-healthcare-inequalities-women

[vii] https://www.nysenate.gov/legislation/bills/2021/s531/amendment/b

[viii] Id.

[ix] https://www.governor.ny.gov/news/governor-hochul-signs-legislation-addressing-labor-and-healthcare-inequalities-women

[x] Id.

On December 22, 2021, Governor Hochul signed a Bill[i] directing “the department of financial services, in consultation with the department of health to prepare a report with recommendations on their review of covered benefits related to childbirth offered by all health insurance providers in New York state.”[ii]  The purpose of the Bill is: “[t]o uncover hidden costs related to childbirth, shine a light on disparities in rates negotiated by insurers covering the birth, and determine if Statewide standards should be adopted.”[iii]

Pursuant to the Bill, the Department of Financial Services, in cooperation with the Department of Health, is to conduct a review of the benefits related to childbirth and “must include an examination of length of stay periods, costs incurred by patients and reimbursed to providers, and additional benefits offered, or not.”[iv]

Senator Julia Salazar in addressing this Bill stated that: “People expecting a child face many unknowns, which often cause anxiety and uncertainty. One of these is the difficulty many face in ascertaining the costs they will incur for labor and delivery. This bill alleviates that concern by requiring the Department of Financial Services to study and report on the coverage actually provided by insurance companies in New York for these services.”[v]

Assemblymember Chantel Jackson in discussing the Bill stated that:  Maternal Health has been of critical importance across the nation and here in New York State, as more needs to be done to close the gap in maternal mortality among women of color.  Race, poverty and discrimination still play a role in the maternal care and delivery options available and afforded to women of color.  This legislation will focus on creating a study that will shed a light and better understanding on the current insurance benefits and coverage related to childbirth. This legislation will help identify and address the areas where insurance coverage standards must be revised to better serve the maternal health needs of expectant mothers before, during and after delivery.”

The report and recommendations will be used to “determine if state-wide standards should be adopted in addition to taking measure of how the State already fulfills requirements set by the Federal ACA [Affordable Care Act].”[vi]

For further information, please contact Christopher E. Vatter at cvatter@jaspanllp.com or Samantha M. Guido at sguido@jaspanllp.com.

[i] https://www.nysenate.gov/legislation/bills/2021/s4827

[ii] Id.

[iii] Id.

[iv] Id.

[v] https://www.governor.ny.gov/news/governor-hochul-signs-legislation-addressing-labor-and-healthcare-inequalities-women

[vi] https://www.nysenate.gov/legislation/bills/2021/s4827

One of the many unspoken issues facing homeless women is access to feminine hygiene products.  Governor Hochul, recognizing this issue, signed legislation on December 22, 2021, amending Social Services Law by adding a new section 152-c[i], which requires that feminine hygiene products be provided at no cost to menstruating individuals in homeless shelters.  The products include, but not limited to, sanitary napkins, tampons and panty liners.”[ii]  “This bill will provide feminine hygiene products at no cost to adults and children in shelters throughout New York State.”[iii] “Menstrual products can be unaffordable for those already struggling. This bill provides these products free of charge so those living in homeless shelters do not have to resort to using unsafe alternatives that can result in serious infection.”[iv] Senator Michelle Hinchey, who sponsored Senate Bill S6572, stated: “Access to menstrual supplies is a fundamental health necessity, and yet in almost every community across our state, there are people who cannot afford period products – a dilemma that no one should ever have to face.”[v] Assemblymember Linda B. Rosenthal echoed this sentiment and stated that woman should not be forced between deciding whether to buy food or menstrual products.[vi] This legislation is a small step in ensuring that women are treated fairly.

It is important that issues specific to women are brought to light and that women are treated equally and fairly. For further information, please contact Christopher E. Vatter at cvatter@jaspanllp.com or Samantha M. Guido at sguido@jaspanllp.com.

[i] Senate Bill S6572/A.529-A.

[ii] Id. at “Summary”.

[iii] Id. at “Purpose”.

[iv]https://www.governor.ny.gov/news/governor-hochul-signs-legislation-addressing-labor-and-healthcare-inequalities-women

[v] Id.

[vi] Id.

Jaspan Schlesinger is proud to celebrate Women’s History Month. March is designated Women’s History Month by Presidential proclamation.[i] “Every March, Women’s History Month provides an opportunity to honor the generations of trailblazing women and girls who have built our Nation, shaped our progress, and strengthened our character as a people.”[ii]

“Women’s History Month had its origins as a national celebration in 1981 when Congress passed Pub. L. 97-28 which authorized and requested the President to proclaim the week beginning March 7, 1982 as ‘Women’s History Week.”’[iii]   In 1987, “Congress passed Pub. L. 100-9 which designated the month of March 1987 as ‘Women’s History Month.’ Between 1988 and 1994, Congress passed additional resolutions requesting and authorizing the President to proclaim March of each year as Women’s History Month.”[iv]  These proclamations celebrate the contributions women have made to the United States and recognize the specific achievements women have made over the course of American history in a variety of fields.[v]

President Biden, in issuing this year’s Proclamation, stated that: “[t]his Women’s History Month, as we reflect on the achievements of women and girls across the centuries and pay tribute to the pioneers who paved the way, let us recommit to the fight and help realize the deeply American vision of a more equal society where every person has a shot at pursuing the American dream.  In doing so, we will advance economic growth, our health and safety, and the security of our Nation and the world.”[vi]

Governor Hochul in signing legislature addressing women’s issues stated: “New York must continue to break down barriers for women and fight inequality throughout our state.”[vii] “These laws will address a variety of important issues, supporting STEM [ Science, Technology, Engineering, and Mathematics fields] careers and helping to ensure equity and access in women’s health.”[viii]

Despite progress being made, women still face obstacles in many endeavors and further progress is needed to ensure that women have the same opportunities as men and are treated equally. Jaspan Schlesinger proudly joins the Nation in recognizing March as Women’s History Month.  As we recognize Women’s History Month, we will be updating our blog with relevant and timely information and resources laws which address and highlight women’s issues.

[i] Pub. L. 100-9.

[ii] https://www.whitehouse.gov/briefing-room/presidential-actions/2022/02/28/a-proclamation-on-womens-history-month-2022/#:~:text=NOW%2C%20THEREFORE%2C%20I%2C%20JOSEPH,2022%20as%20Women’s%20History%20Month.

[iii] https://womenshistorymonth.gov/about/

[iv] Id.

[v] Id.

[vi] https://www.whitehouse.gov/briefing-room/presidential-actions/2022/02/28/a-proclamation-on-womens-history-month-2022/#:~:text=NOW%2C%20THEREFORE%2C%20I%2C%20JOSEPH,2022%20as%20Women’s%20History%20Month.

[vii] https://www.governor.ny.gov/news/governor-hochul-signs-legislation-addressing-labor-and-healthcare-inequalities-women

[viii] Id.

Several months ago, I wrote a Blog entry, “Wrongful Life?”, where I discussed whether, in New York, there is a legal remedy for “wrongful life” when a hospital or a doctor refuses to follow the terms of a patient’s living will and his or her health care proxy’s instructions resulting in pain and suffering by the patient.

The case brought before London’s High Court involves a claim for “wrongful conception” by a twenty-year-old woman who was born with spina bifida against the doctor who failed to advise the woman’s mother to take supplements that can prevent the condition before she conceived.  The woman, Evie Toomes, alleged that the doctor was liable for her “having been born in a damaged state” as a result of the doctor’s failure.

Evie is a star horse jumper.  She competes against abled and disabled riders.  However, Evie’s condition necessitates that she sometimes has to be connected to tubes for twenty-four hours at a time and it limits her mobility.  She has bowel and bladder issues.  It is thought that her condition will worsen over time.

Evie’s mother claims that she sought the doctor’s advice prior to trying to conceive a child.  She and Evie’s father specifically delayed their decision until after Evie’s mother consulted the doctor.  The doctor encouraged Evie’s mother to conceive a child.  He opined that Evie’s mother did not need to take folic acid if she had had a good diet.  Evie’s attorney argued that, if the doctor had recommended taking folic acid, Evie’s mother would have delayed conceiving a child until she had started taking it, the theory being that she then would have had a “healthy” baby.  The doctor’s attorney argued that Evie’s mother might have been pregnant when she consulted him and that he had given her “reasonable advice.”

Judge Rosalind Coe QC ruled in favor of Evie on the issue of liability.  Judge Coe found that Evie’s mother was not pregnant when she consulted with the doctor and that he did not properly advise her with respect to folic acid’s ability to prevent spina bifida.  She determined that the doctor’s improper advice resulted in Evie’s condition.

Unless the parties reach a settlement on damages, the court will decide that issue at a later date.  Stay tuned.

 

To a New Yorker, this seems impossible, but in some states, a child may be personally liable for a deceased parent’s medical bills. Over half the states have legislation variously referred to as Filial Support or Filial Responsibility Laws. These statutes oblige children to satisfy their parents’ medical debts even if the child made no promise to do so, signed no guarantee to do so, or received no assets from his or her parents. New York does not have such a statute. But New Jersey and Pennsylvania do have such laws! Should this still be source for concern to New Yorkers?  Under the U.S. Constitution’s Full Faith and Credit Clause could a judgment creditor in New Jersey or Pennsylvania under these laws be able to enforce that judgment in New York? While Medicare and Medicaid have reduced the impact of these laws, there have been cases where they have been enforced.

Filial Responsibility laws stem from England’s 16th century Poor Laws, a set of social measures meant to support impoverished citizens that resulted in debtors’ prisons, poor houses, government custody of children (imagine a Dickens novel, or his own youth). At one point, 45 states had statutes that left adult children responsible for the expenses of their indigent parents. Many states repealed these laws with the advent of Medicaid in 1965 and the reduced need for family support (generally, Medicaid prevents nursing  homes from requiring family members to act as “guarantors” when admitting a new patient.)

Consider the following facts. A Pennsylvania resident incurred a $93,000 nursing home bill for rehabilitation care.  When she was released from the facility she left the country, leaving behind the debt and her son. (Mom had applied for Medicaid, but the application was still pending at the time of this case.)   The nursing home sued her son. The courts ruled that the son was financially able and therefore responsible for paying the bill under the Pennsylvania.

For more on this topic (and a body of law that, frankly, was unknown to this writer when he was searching for a subject to write about), see this article from a website called AgingCare (https://www.agingcare.com/Articles/filial-responsibility-and-medicaid-197746.htm ). It begins:

As a caregiver, keeping your finances separate from those of your loved one is difficult, if not impossible, especially if they have few assets and limited income. Even if an aging parent lives in a long-term care facility paid for by Medicaid, adult children often shell out money to help cover personal needs and the occasional treat. Many think that because the cost of care is covered by the government, they have been absolved of all financial responsibility, but this is not quite true in some states.

Now for the good news. New Yorkers do not have to worry about this happening here. In a 1967 case, the Second Department had to decide whether the Full faith and Credit Clause of the federal Constitution preempted local law. A Connecticut welfare investigator filed suit against a New York resident in a Connecticut court to recover monies expended for the New York resident’s mother in a Connecticut hospital. The case was “transmitted” to a New York Family Court where the son objected to such obligation in light of the repeal of New York filial support law. The Family Court held that the son was obligated to contribute to his mother’s care in Connecticut. The appellate court reversed the Family Court, ruling that while the 1966 filial support law amendment did not directly address the issue, the failure to do so was an “oversight” and that of all filial support obligations, “both intrastate or interstate,” were repealed by the statute. See, In The Matter of Welfare Commissioner v. Mintz, 28 A.D.2d 14, 17 (2d Dep’t 1967).

 

 

Will Rogers, a folksy humorist for those too young to know, once said that “a  Republican moves slowly. They are what we call conservatives. A conservative is a man who has plenty of money and doesn’t see any reason why he shouldn’t always have plenty of money. A Democrat is a fellow who never had any, but doesn’t see any reason why he shouldn’t have some.” Perhaps the quote is a bit dated today, perhaps it is a bit unfair, but it is satire after all. It calls to mind the latest tax proposal from Washington that would impose a wealth tax on unrealized gains for the very wealthy. Would it also include a yearly credit  for unrealized losses? Who knows? Is this an unconstitutional taking? Who knows? How would such a tax be administered? Who knows? Is it a cruel joke to drive planners, accountants, attorneys crazy? Who knows? One thing we do know is that there is a great inequality in the distribution of wealth in this country, but is this the way to address it? Let’s see what some experts are writing.

Tyler Cowen is a respected libertarian economist with a very popular blog called Marginal Revolution.[1] He makes one observation on the latest tax proposal and then cites to another respected economist, Aswath Damodaran, from NYU, and his analysis. First, Tyler:

“Put simply, this proposal is biased towards people with inherited wealth, invested in non-traded assets and mature businesses, and against people invested in publicly traded equities in growth companies, many of which they have started and built up. If that is the message that the tax law writers want to send, they should at least have the decency to be up front about that message, and to defend it.” marginalrevolution.com

Prof. Damodaran holds the Kerschner Family Chair in Finance Education and is Professor of Finance at New York University Stern School of Business. He is also a respected commentator on such topics and his analysis of the latest news from Washington is worthy of note. His website, Musings on Markets,  is also very much respected, at least according to family members in the field  (I wouldn’t know). See: aswathdamodaran.blogspot.com

A selection from Prof. Damodaran’s analysis:

If you have been tracking the torturous workings of the infrastructure bills working their way through Congress, consideration is now being given to a “billionaire” tax, focused on a extraordinarily small subset of Americans, and intended to raise tens, perhaps even hundreds, of billions of dollars in revenues, to cover the costs of the bill. I am constantly amazed by the capacity of legislatures to write bad tax law, but this one takes the cake as perhaps the worst thought-through and most ineffective attempt ever, at rewriting tax code. That is a little unfair, I know, because the details are still being hashed out, and it is conceivable that the final version will be redeemable, but given that the clock is ticking, I am not hopeful!

[1]  Disclaimer: I am not now nor have I ever been nor will I ever be a libertarian. However, the website is always interesting and worthy of following.

Recently, I read a newspaper article reporting that Bing Crosby’s estate is selling an equal stake in the rights to Bing Crosby’s catalog to Primary Wave Music for an estimated $50 million dollars, making Primary Wave Music and the estate partners.  Of late, contemporary musicians, such as Bob Dylan and Neil Young, have made lucrative deals to sell their catalog rights for many millions of dollars.  Those artists wrote their own songs.  Bing Crosby did not.  He interpreted songs written by others.   Messrs. Dylan and Young are alive.  Mr. Crosby died in October 1977, forty-four years ago.

Although recorded by many artists, Bing Crosby’s rendition of “White Christmas,” written by Irving Berlin in or around 1940, is perhaps the most famous version of the song.  Mr. Crosby recorded it in 1941.  A quick glance at Wikipedia shows that he publicly debuted it on Christmas Day of that year on the NBC radio show, The Kraft Music Hall.  That must have been a moving performance given that it came just two weeks after the bombing of Pearl Harbor.  Apparently, Mr. Crosby had ownership rights in that performance of the song.  Those rights are now an asset of his estate, along with a vast catalog of musical performances.

Primary Wave Music must be pretty confident of its ability to popularize the music of the long-deceased Mr. Crosby with younger generations to pay such a whopping sum of money.  The beneficiaries of Mr. Crosby’s estate must be very happy to have a $50 million infusion into the estate’s coffers.

The lesson to be learned is to write or sing a classic song and your children and their children will have happy holidays for many years to come.  Now, all I need is some musical talent.

 

I. Tax changes, the latest developments.

The Trusts and Estates community is awash with rumors of the tax changes being proposed in Washington. Every day, the inbox is filled with rumors, invitations to webinars on planning opportunities, and the “dire” consequences of some of the proposals.  The lobbyists are more numerous in Washington than people with opinions on the internet. Some examples:

  1. Democrats’ tax plan upends estate planning using trusts with life insurance:

Financial Planning News – Life Insurance, Trusts and Tax Benefits

“The tax plan taking shape in Congress would strangle a strategy widely used by the wealthy to shield their estates from taxes and pass on major wealth to heirs. Specifically, it would erase the long-standing benefit of keeping life insurance in certain trusts, by making its value subject to the 40% estate tax when the policy owner dies. That’s a huge change: Currently, the trusts and their assets aren’t subject to the levy.

What does this mean? Some life insurance policies, when ”owned” by certain types of trusts have the ability to pass the proceeds of the policy to the designated beneficiaries entirely free of estate or gift taxation. This proposal would change that result. Will it become law? Wait and see.

  1. One More Scary Estate Tax Change And New Action Items For Many Affluent Taxpayers

Forbes.com Estate Tax Changes

“Many taxpayers and their advisors have been rushing to establish or fully fund special irrevocable trusts that can both avoid federal estate tax and purchase from or exchange assets with the Grantor at no income tax cost.

“These “Defective Grantor Trusts” can pay for appreciating assets by giving long-term low interest promissory notes, while the Grantor/contributor pays the income tax attributable to the trust income.”

What does this mean? Well, let’s let Forbes describe the concept via an example: “I may have established a trust that has $2,000,000 worth of appreciated stock that I would like to buy back from the trust before my death, so that the stock can get a new fair market value income tax basis when I die. I therefore give the trust $2,000,000 cash or other high basis assets, and the trust transfers the stock to me. . .Under present law, this can be accomplished income tax free; however if the new law is amended to provide for the above then after the date of enactment of the new law, this will be treated as if I sold the stock for $2,000,000 at the time of the sale.”

  1. Estate Tax Law Changes – What To Do Now

Forbes.com Estate Tax Changes

“Under the new rules, the funding of a GRAT after the date that this law would be enacted could cause income tax on the excess of the fair market value of the assets placed into the GRAT over the tax basis of such assets, and the excess value remaining after the GRAT term may be considered a gift when distributed, notwithstanding that Internal Revenue Code Section 2702 provides under present law that no gift results when the actuarial value of the annual payments made to the Grantor equals the value of assets placed into the Trust.”

What does this mean? The GRAT, or Grantor Retained Annuity Trust, is a primary vehicle for high net worth individuals to achieve vast income, estate, and gift tax savings. The article describes the reasons and the changes that might remove those advantages.

  1. Lobbyists shielded carried interest from Biden’s tax hikes, top White House economist says

CNBC.com

“Fierce lobbying by the private equity industry is the reason the carried interest tax rate is not included in President Joe Biden’s planned tax hikes, top White House economist Jared Bernstein told CNBC on Thursday.

“Biden and congressional Democrats are hoping to pass a sprawling budget, much of which is paid for with revenue from a laundry list of tax changes, including higher rates for the wealthiest Americans and corporations.

“But closing the so-called “carried interest loophole” by taxing private equity profits at personal income rates, instead of at lower capital gains rates, is not on that list.”

What does this mean? It means the lobbyists have already won one. The concept is an easy one to express (or perhaps that merely displays this writer’s ignorance): should the profits of private equity funds be taxed as capital gains (lower) or as regular income (higher)? The CNBC article describes Andrew Sorkin’s shock at this development, “For private equity firms, keeping their tax rate at the lower capital gains level is their top priority in Washington and has been for years. . .The private equity industry has spent millions of dollars on lobbyists to fight any effort to change how it is taxed. And so far, the plan appears to be working. . .The industry has contributed hundreds of millions of dollars to congressional campaigns, $600 million total over the past decade, according to a New York Times analysis earlier this year.”

  1. For a useful review of all the proposed changes to the tax law, see this recent article from The National Law Review: National Law Review

II. More news on the personal impact of inherited wealth

It’s not all about taxes. Too many estate planners give little attention to the costly litigation that can result from planning focused exclusively on tax efficiency instead of family dynamics nor do they discuss with their high net worth clients the personal impact of inherited wealth may have on their families. A recent article from Yahoo Finance describes the efforts made by some very wealthy individuals to provide for their families, but not too much. “You can never be too rich or too thin,” said the late Wallis Simpson (she of Duchess of Windsor and abdicating kings fame). Evidently, Warren Buffett and Kevin O’Leary (two very high net worth individuals) disagree and describe their efforts to make sure their children are secure but not spoiled. Mr. Buffet has a pithy way of putting it:

“After much observation of super-wealthy families, here’s my recommendation: Leave the children enough so that they can do anything but not enough that they can do nothing.”

The article, “Warren Buffet, Kevin O’Leary and Other Millionaires are Concerned About Inheritances” The link:  Finance.com News

Estate planners and corporate trust officers (not to mention trusts and estates litigators) have many horror stories about the harmful impact of inherited wealth or the result of careless planning that fails to avoid litigation. This is not a problem reserved for the high net worth individual. Every parent with a house owned for decades must plan for what happens when he or she dies and the children squabble over the house (one is living there, the others do not want their share of the house frozen in place to support the residential sibling). They also have horror stories of relatively modest estates being consumed by litigation when a sibling is favored over another sibling and the estate plan does not include techniques to minimize the chances of such litigation.

Somewhat along these lines, Open Culture is a fine website that lists free cultural resources on the internet. Here is an entry that discusses the passing of wealth across the generations. Openculture.com Mahatma Gandhis List 7 social sins. It describes the Mahatma Gandhi formulation of the seven “social sins.” Before it does, however, it travels back in time to the first formulation of the seven deadly sins: “[i]n 590 CE, Pope Gregory I unveiled a list of the Seven Deadly Sins – lust, gluttony, greed, sloth, wrath, envy and pride – as a way to keep the flock from straying into the thorny fields of ungodliness. These days though, for all but the most devout, Pope Gregory’s list seems less like a means to moral behavior than a description of cable TV programming.” This list of the seven social sins was published by Mohandas K. Gandhi in his weekly newspaper Young India on October 22, 1925:

Wealth without work.

Pleasure without conscience.

Knowledge without character.

Commerce without morality.

Science without humanity.

Religion without sacrifice.

Politics without principle.

There used to be a saying in the Surrogate’s Court, “blood may be thicker than water, but money is thicker than blood.” We prove that maxim every day as practitioners in Surrogate’s Court.  The estate of the late great Jimi Hendrix continues to be embroiled in a family dispute, this time over the use of his name. The superb guitarist and composer died without a Will, making his father the sole beneficiary of his estate. That did not stop his brother and other family members from attempting to take advantage of the estate that is now valued at $175 million. The article from the Guardian describes the latest skirmish in a trademark dispute: The Guardian.com Jimi Hendrix Family Dispute. If you are interested, here is the recent decision from the Southern District of New York: Casetext.com Hendrix llc v Hendrix

And speaking of Jimi Hendrix, it is gratifying to learn of a famous musician who does not recognize artificial boundaries in music. Violinist Nigel Kennedy canceled a concert at the Royal Albert Hall in London after Classic FM stopped him from including a Hendrix tribute. Again, from The Guardian:

“Violinist Nigel Kennedy has pulled out of a concert at the Royal Albert Hall with only days to go after accusing the radio station Classic FM of preventing him from performing a Jimi Hendrix tribute.

“Kennedy said the “culturally prejudiced” decision amounted to “musical segregation”, with the station he now calls “Jurassic FM” preferring him to play Vivaldi’s Four Seasons in Wednesday’s show.

“He intended to play some Hendrix with Chineke!, an orchestra of young black and ethnically diverse musicians, until he was told the rock star was “not suitable” for the station’s desired audience. Classic FM, which was hosting the event, preferred for him to play Vivaldi’s Four Seasons.” The Guardian.com Music Violinist Nigel Kennedy Cancels Concert

Finally, the late Nat Hentoff, human rights activist, writer, and historian of American Classical music (i.e., Jazz) was passing the Fillmore East one evening when he was shocked to see none other than Duke Ellington leaving the Jimi Hendrix concert. Nat asked Duke, “What are you doing here?” The maestro replied, “man, if it sounds good it is good.” The lesson here, one that Nigel Kennedy would and has approved with regard to musical snobbery, is that if you can’t swing with Oscar Peterson, then you don’t deserve to swing with Johann Sebastian Bach. And vice versa.

 

 

 

 

 

Many people have been following the developments in the conservatorship of Britney Spears.  It is hard not to since the matter has been in the headlines so often of late.  Ms. Spears alleged gross financial and personal abuse by her father, who, until he was suspended earlier this week by Los Angeles Superior Court, had been the conservator in charge of Ms. Spears’s finances since 2008.  He was replaced by a temporary conservator of Ms. Spears’s choosing.

There is little doubt the Ms. Spears needed a conservator years ago when she had a very public breakdown.  Ms. Spear’s objective is to have the conservatorship discontinued. Whether she needs a conservator now will be for the court to decide.  I am sure we will be reading about this for some time to come.

California utilizes conservatorships for people in need of financial oversight.  New York did until 1993, when Article 81 of the New York Mental Hygiene Law was enacted.  Conservators were replaced by property guardians.  Committees, which oversaw a person who could not handle his or her personal needs, were replaced with personal needs guardians.  The beauty of Article 81 guardianships, unlike conservatorships and committees, which were all-encompassing, is that guardianships can be tailored in each case with the standard being the least restrictive means needed to protect the individual determined after a hearing to be incapacitated.

With that said, the guardianship of famous artist Peter Max made the news earlier this week.  Mr. Max was adjudicated as incapacitated under Article 81 in late 2016, and a guardian was appointed for him.  He is said to have dementia.  Underlying the need for a guardian was the alleged abuse of him by his then-wife.  However, she committed suicide last year just prior to when Mr. Max’s second guardian was replaced by his current one, an attorney.

Mr. Max’s daughter alleges that her father is being held hostage by the guardian in the sense that access to her father is restricted and also that the current guardian is abusing her authority as Mr. Max’s property guardian.  Mr. Max’s son and a close friend of the artist both assert that the guardian has placed onerous restrictions on visiting Mr. Max.  Mr. Max’s daughter wants the guardianship to end.  His son, who is estranged from his sister, does not.   It is important to note that the veracity of the allegations against Mr. Max’s current guardian has not been determined by the court.

Britney Spears and Peter Max are high-profile individuals.  But, what about the many, many average people for whom a conservator or a guardian has been appointed?  What prevents abuse in their cases and, if there is abuse, how is it remedied?

In New York, court-appointed guardians are granted specific powers and cannot act beyond those powers.  Lay guardians must take guardian training, as must guardians who are attorneys, as in Peter Max’s case.  The court usually will require a guardian to be bonded for the amount of money that he or she is overseeing for the incapacitated person.  A property guardian, whether a family member or friend of the incapacitated person, or an independent guardian, must account each year for all of the money received and expended by the guardian.   A personal needs guardian must visit the incapacitated person a certain number of times each year, must make sure the incapacitated person receives proper care, and must keep the court apprised of the incapacitated person’s health and well-being.  Often, the court appoints one person to be both the property guardian and personal needs guardian.  A court examiner is appointed for each guardianship.  The court examiner is an individual, usually an attorney, whose function it is to review the initial and annual reports that each guardian is required to file.  The court examiner must alert the court if the reports are not filed or if there are discrepancies in the reports.

Even these safeguards do not ensure that there is no abuse.  If the incapacitated person has family or friends other than the guardian, they should keep close tabs on what is going on and should alert the court to anything that appears untoward.  If the incapacitated person is able, he or she should do the same.  Although there are abuses, most of the time an Article 81 guardianship is a humane solution to an often-sad situation.