Your Partner in the Profession | February 2020 • Vol. 89 • No. 2
Justice Delayed: My Journey Inside the Secret Tent Courts Where Refugees are Being Denied Dignity and Due Process by Rekha Sharma-Crawford P 6 Resting in Pieces: Why Family Harmony is a Frequent Casualty of Most Estate Plans by Tim O’Sullivan P 32 Paper checks are notoriously unreliable. They get lost in the mail, they get tossed in the laundry, and they carry a lot of sensitive information around with them wherever they go. LawPay changes all of that. Give your clients the flexibility to pay you from anywhere, anytime. Most importantly, we ensure you stay in compliance with ABA and IOLTA guidelines. Proud Member Benefit Provider
888-281-8915 or visit lawpay.com/ksbar 6| Justice Delayed: My Journey Inside the Secret Tent Courts Where Refugees are Being Denied Dignity and Due Process by Rekha Sharma-Crawford 32| Resting in Pieces: Why Family Harmony is a Frequent Casualty of Most Estate Plans by Tim O’Sullivan
Cover Design by Ryan Purcell
Special Features
21 | 2020 Legislative Preview...... Joseph N. Molina III 25 | DCF Series: Child Welfare System Task Force Update...... Linda Gallagher 51 | Intersection of Domestic, CINC, and Juvenile Offender Laws, and What Lawyers Should Advise Clients About Them...... Hon. Kevin M. Smith
Regular Features
15 | KBA President 57 | Law Students’ Corner There are Not Enough Hours in a Day— Environmental Justice—It’s Our Problem, Too How We Should Treat Our Most Valuable Resource ...... Hannah Lustman ...... Mira Mdivani 60 | Members in the News 18 | YLS President Active Educational Outreach is Part of YLS Mission: . 62 | Obituaries Looking Ahead to Law Day 2020....Mitch Biebighauser 65 | Appellate Decisions 20 | February CLEs Love to Learn? Take a CLE! 71 | Appellate Practice Reminders Have 2020 Vision The Year: Appellate Courts ...... 24 | Kansas Bar Foundation Docket Weeks...... Douglas T. Shima Need a Trust Account? Consider IOLTA 72 | Advertising Directory NEW 28 | Law Practice Management Tips and Tricks The Consumer Electronics Show...... Larry Zimmerman 73 | Classified Advertisements
www.ksbar.org | February 2020 3 E Let your VOICE TH 2019-20 be KBA Officers & Board of Governors Heard! O President OF THE KANSAS BAR ASSOCIATION Mira Mdivani, [email protected] President-elect 2019-20 Charles E. Branson, [email protected] Journal Board of Editors Vice President Cheryl Whelan, [email protected] Emily Grant (Topeka), chair, [email protected] Secretary-Treasurer Nancy Morales Gonzalez, [email protected] Sarah G. Briley (Wichita), [email protected] Hon. David E. Bruns (Topeka), [email protected] Immediate Past President Hon. Sarah E. Warner, [email protected] Richard L. Budden (Kansas City), [email protected] Boyd A. Byers (Wichita), [email protected] Young Lawyers Section President Mitch Biebighauser, [email protected] Jennifer Cocking (Topeka), [email protected] Connie S. Hamilton (Manhattan), [email protected] District 1 Michael J. Fleming, [email protected] Michael T. Jilka (Lawrence), [email protected] Katie A. McClaflin, [email protected] Lisa R. Jones (Ft. Myers, FL), [email protected] Diana Toman, [email protected] Casey R. Law (McPherson), [email protected] District 2 Hon. Robert E. Nugent (Wichita), [email protected] Bethany Roberts, [email protected] Professor John C. Peck (Lawrence), [email protected] District 3 Rachael K. Pirner (Wichita), [email protected] Angela M. Meyer, [email protected] Richard D. Ralls (Overland Park), [email protected] District 4 Karen Renwick (Kansas City), [email protected] Brian L. Williams, [email protected] Jennifer Salva (Kansas City), [email protected] District 5 Teresa M. Schreffler (Wichita), [email protected] Vincent Cox, [email protected] Richard H. Seaton Sr. (Manhattan), [email protected] Terri J. Pemberton, [email protected] Sarah B. Shattuck (Ashland), [email protected] District 6 Richard D. Smith (Topeka), [email protected] Tish S. Morrical, [email protected] Marty M. Snyder (Topeka), [email protected] District 7 Patti Van Slyke, Journal Editor & Staff Liaison, [email protected] Gary L. Ayers, [email protected] Hon. Jeffrey E. Goering, [email protected] Catherine A. Walter (Topeka), [email protected] Megan S. Monsour, [email protected] Meg Wickham, Dir. of Communications & Member Svcs., [email protected] District 8 Issaku Yamaashi (Overland Park), [email protected] Gaye B. Tibbets, [email protected] Natalie Yoza (Topeka), [email protected] District 9 Aaron L. Kite, [email protected] The Journal Board of Editors is responsible for the selection and editing of all substantive legal articles that appear in The Journal of the Kansas Bar Association. District 10 The board reviews all article submissions during its quarterly meetings (January, Gregory A. Schwartz, [email protected] April, July, and October). If an attorney would like to submit an article for District 11 consideration, please send a draft or outline to Patti Van Slyke, Journal Editor Mark Dupree, [email protected] at [email protected]. District 12 Alexander P. Aguilera, [email protected] Ryan Purcell, graphic designer, [email protected] Bruce A. Ney, [email protected] John M. Shoemaker, [email protected] At-Large Governor The Journal of the Kansas Bar Association (ISSN 0022-8486) is published Eunice Peters, [email protected] monthly with combined issues for July/August and November/December for a total of 10 issues a year. Periodical Postage Rates paid at Topeka, Kan., and at KDJA Representative additional mailing offices. The Journal of the Kansas Bar Association is published Hon. James R. Fleetwood, [email protected] by the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806; KBA Delegate to ABA House Phone: (785) 234-5696; Fax: (785) 234-3813. Member subscription is $25 a year, Natalie G. Haag, [email protected] which is included in annual dues. Nonmember subscription rate is $45 a year. Eric Rosenblad, [email protected] The Kansas Bar Association and the members of the Board of Editors assume ABA State Delegate no responsibility for any opinion or statement of fact in the substantive Linda S. Parks, [email protected] legal articles published in The Journal of the Kansas Bar Association. YL Delegate to ABA House Copyright © 2017 Kansas Bar Association, Topeka, Kan. Joslyn Kusiak, [email protected] For display advertising information, contact: Interim Executive Director Bill Spilman at (877) 878-3260 toll-free, (309) 483-6467 or Karla Whitaker, [email protected] email [email protected] For classified advertising information contact Patti Van Slyke at (785) 234-5696 or email [email protected]. Our Mission
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(800) 367-2577 www.alpsnet.com learnmorewww.ksbar.org@alpsn | e Februaryt.co 2020m 5 Justice Denied: My journey inside the secret tent courts where refugees are being denied dignity and due process A First Hand Report by Rekha Sharma-Crawford
“What I saw was not due process. It was not the rule of law. It was lawlessness.”
ourts are supposed to be about due process, fairness radical departure from long-standing asylum procedure that and the rule of law. Yet, I did not find justice at work puts migrants at risk of new violence. in the canvas tents set up near the southern border In Brownsville, I saw that the injustices do not end there. Cto house secretive immigration courts. Advocates had, for months, warned of unconstitutional treatment of migrants On hearing days, Customs and Border Protection agents and fundamental breakdowns in the judicial process. allow migrants to cross from Matamoros to Brownsville into an unnamed city of tents. The canvas cloaks beige shipping Given the stakes, I had to see it for myself. containers, which have been converted into “courtrooms.” Early in December 2019, as a Kansas City attorney fighting Unlike those found across the United States, which are open for the rights of immigrants and refugees, I flew to Browns- to the public, this “courthouse” is inaccessible except to a ville, Texas and crossed into Matamoros, Mexico where hun- limited few. Security guards allow only those with official, dreds of Central American migrants are waiting for their turn approved business to pass through the chain-link gates and to see an immigration judge. Under the “Migrant Protection locked doors. The public is barred from inspecting its govern- Protocol” created by President Donald Trump, people fleeing ment at work. I got in only because I was assisting another persecution and seeking asylum protections from the United attorney with her work. States are forced to wait in Mexico until their cases are re- As I entered a double-wide container room, I noticed a gnaw- solved by an immigration judge. Until recently, the govern- ing in the pit of my stomach that something here was just not ment adhered to international standards on the treatment of right. A huge black screen was the first indication the judge refugees, allowing asylum seekers to live in the country while was not going to be in the room at all. In front of the television waiting for a final immigration decision. The MPP policy is a were a small table and two chairs for the attorney and her client
6 The Journal of the Kansas Bar Association justice denied to sit. Migrants waiting for their turn to tell a judge about the horrors they have lived sat at the back of the room in rows of black chairs bolted to the floor and zip tied together. The space felt clinical and devoid of human compassion. Before court even began, these were not the only signs that something was wrong. I saw intimidation throughout my visit. No one was spared. I watched as migrants waited hours for a hearing that usu- ally lasted a few minutes. All of them, regardless of what time their court appearance was, had been ordered to appear on the international bridge by 4 a.m. for processing. Being late could result in being denied the ability to even see the judge. So, many endured the dangerous and cartel-ridden roads in the darkness of night just to have the chance to tell their story to an American immigration judge. Attorneys and their migrant clients—men, women, teen- agers and children—were escorted every place they went. The migrants remain hopeful and fearful when it is their Families were locked in ice-cold waiting rooms. CBP Agents turn to sit before the screen framing the distant judge, largely ruthlessly interrogated asylum seekers in enhanced screenings unaware of the parody in front of them because they are not despite the immigrants’ having broken no law by seeking ref- provided immediate translation of the proceedings. uge in America. As I was escorted by security guards out of the box-turned- Attorneys like me have been denied access to clients when court and the tent and the gates, I understood what my col- we question the way things work in these circus tents. Despite leagues had been saying: The whole process is a sham meant long-standing court procedure, lawyers must turn over their only to give the ceremonial appearance of due process. phones, computers and other electronics. The goal is to make representation difficult. It is evident that this isn’t a real court. These aren’t indepen- dent judges devoted to the rule of law. Instead, they have be- Everything about this place was designed to break the law- come weaponized and are now part of a secretive deportation yers and migrants until we quietly surrendered to the immo- machine constructed to chew up the hopes and dreams of rality surrounding us. American justice is the ideal that due families fleeing persecution. What I saw was not due process. process and the rule of law matter. Yet, both have been cor- It was not the rule of law. It was lawlessness. rupted here. As I returned to Kansas City, I decided to share my story. Nearly 45 minutes after court was scheduled to begin, a More people need to understand what is happening because slight woman dressed in a black robe appeared on the huge lawlessness in one court, if tolerated, threatens constitutional television screen. Rows of exhausted migrants gasped and protections in every court. Attorneys being actively prevented their eyes widened. The tension in the room was tangible. from meaningful representation, if tolerated, threatens rep- Court had started, but the government’s attorneys could resentation for every vulnerable individual. Silence by the not be seen. They were in the room with the judge, hidden public in the face of such governmental abuse, if not altered, beyond the view of the camera that connected them to this threatens democracy at its core. n metal box under a tent in the desert. Typical courts demand About the Author the accuser must face the accused, but here the government lawyers hid behind an electronic veil as they challenged every Rekha Sharma-Crawford is a frequent refugee’s claims. So cavalier is the process that the govern- instructor at the American Immigration Law ment’s attorneys didn’t even bother to go through the charade Foundation Litigation Institute and speaker at the American Immigration Lawyers’ of bringing in a case file. It seems not to matter who is seeking Association national conference. Rekha and asylum because the government lawyers’ arguments are the her husband, Michael, established The Clinic same every time. It feels like they are willing actors in a legal at Sharma-Crawford to close the gap between con job. low-income immigrants facing removal and the availability of qualified, affordable At the start of each short hearing, the judge mundanely representation with the U.S. Immigration asked if the attorneys were ready to proceed. When lawyers Court. Rekha received her Juris Doctor from like myself pointed to clear legal error in the government’s Michigan State University College of Law and is licensed in three states. The Missouri Bar Association awarded the Pro Bono Publico documents or in the procedure, the judge noted it and dis- Award in 2017 to Rekha and Michael; Rekha was awarded the missed it with an effortlessness indicative of routine. One gets KBA’s Courageous Attorney Award in 2018. the distinct feeling that no matter how valid the challenge, the decision to overrule it had already been made. [email protected]
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8 The Journal of the Kansas Bar Association with a
Nomination • Phil Lewis Medal of Distinction • Distinguished Service • Professionalism • Pillars of the Community • Christel Marquardt Trailblazer Award • Distinguished Government Service • Courageous Attorney • Outstanding Young Lawyer • Diversity • Outstanding Service • Pro Bono
Learn more about the awards online at
www.ksbar.org/awardswww.ksbar.org | February 2020 9 2020 Awards of the KBA
The KBA Awards Committee is seeking nominations for award recipients for the 2020 KBA Awards. These awards will be presented in June at the KBA Annual Meeting in Wichita. Below is an explanation of each award and a nomination form for completion. The Awards Committee, chaired by Sara Beezley, of Girard, appreciates your help in bringing worthy nominees from throughout the state of Kansas to the committee’s attention! Deadline for nominations is Friday, March 6. Phil Lewis Medal of Distinction
The KBA’s Phil Lewis Medal of Distinction is reserved for individuals or organizations in Kansas who have performed outstanding and conspicuous service at the state, national, or international level in administration of justice, science, the arts,• A government, recipient need philosophy, not be a memberlaw, or any of theother legal field profession offering relief or related or enrich to it,ment but the to others.recipient’s service may include responsibility and honor within the legal profession;
Distinguished• This award Service is only Award given in those years when it is determined that there is a worthy recipient. This award recognizes an individual for continuous long-standing service on behalf of the legal profession or the public, rather than the successful accomplishment of a single task or service. goals of the legal profession or the public; • The recipient must be a lawyer and must have made a significant contribution to the altruistic
• Only one Distinguished Service Award may be given in any one year. However, the award is Professionalism given only Award in those years when it is determined that there is a worthy recipient. This award recognizes an individual who has practiced law for 10 or more years who, by his or her conduct, honesty, integrity, and courtesy, best exemplifies, represents, and encourages other lawyers to follow the highest standards of thePillars legal of profession. the Community Award This award is available to a Kansas lawyer and KBA member with a minimum of 10 years active non-specialized, givengeneral to legalthe following practice infactors, a predominately including how low-density such factors population apply to area the lawyer’sof Kansas. community: Recipients will have had substantial practice in small or solo law firms or local government service. Requirements are flexible but consideration will be • the variety/diversity of law practiced
• general contributions to the law and legal profession • impact/high profile law work • mentoring and support for legal education • contributionsspecific contributions to the State/community to the legal profession • notable civic activities • periods of elected or appointed public/government service • military service • examples of volunteerism and charitable activity • reputation in the organized bar, State and community
This award may be but need not be given every year. More than one recipient can receive the award in a one year. Christel Marquardt Trailblazer Award
Association, by recognizing exceptional KBA members who break new ground, shatter glass ceilings, or pave new This award is named in honor of Hon. Christel Marquardt, the first woman to serve as President of the Kansas Bar the legal profession or our communities, exhibiting courage, leadership, professional excellence, and service to the paths for others to follow. The award is bestowed upon a member who has made innovative contributions to improve profession in a manner that makes a substantial and positive impact on all those who follow in his or her footsteps. The award• willService be given to the to Bara KBA or memberto the legal who profession demonstrates generally; qualities Judge Marquardt has exemplified, such as:
• Innovation and carving a path for future lawyers through mentorship, hard work, and compassion; • Courage in challenging societal, institutional, or historical barriers;
• Leadership by word and example.
TheDistinguished Trailblazer GovernmentAward will be Service given in Award years where there is a worthy recipient.
The recipient shall be a Kansas lawyer, preferably a member of the KBA, who has demonstrated accomplishments This award recognizes a Kansas lawyer who has demonstrated an extraordinary commitment to government service. above and beyond those expected from persons engaged in similar government service. The award shall be given only inCourageous those years Attorney when it is Award determined that there is a recipient worthy of such award.
The KBA created a new award in 2000 to recognize a lawyer who has displayed exceptional courage in the face of include a small town lawyer who defended a politically unpopular defendant and lost most of his livelihood for the nextadversity, 20 years, thus an bringing African-American credit to the crimi legalnal profession. defense attorney Examples who of recipients defended twoof this members type of awardof the white in other supremacist jurisdictions movement, and a small town judge who lost his position because he refused the town council’s request to meet monetary quotas on traffic offenses. This award will be given only in those years when it is determined that there is a worOutstandingthy recipient. Young Lawyer
This award recognizes the efforts of a KBA Young Lawyers Section member who has rendered meritorious service to theDiversity legal profession, Award the community, or the KBA.
advancedThis award diversity recognizes by its an conduct, individual as whowell hasas by shown the development a continued andcommitment implementation to diversity; of diversity or a law policies firm; corporation; and strategic plans,governmental which include agency, the department, following criteria: or body; law-related organization; or other organization that has significantly
• A consistent pattern of the recruitment and hiring of diverse attorneys; • The promotion of diverse attorneys; • The existence of overall diversity in the workplace;
• Involvement of diverse members in the planning and setting of policy for diversity; • Cultivating a friendly climate within a law firm or organization toward diverse attorneys and others;
• whereas;Commitment to mentoring diverse attorneys, and; • Consideration and adoption of plans to continue to improve diversity within the law firm or organization,
• Diversity shall be defined as differences of gender, skin color, religion, human perspective, as well as disablement.
The award will be given only in those years when it is determined there is a worthy recipient. Outstanding Service Award(s)
These awards are given for the purpose of recognizing lawyers and judges for service to the legal profession and/ or the KBA and for recognizing nonlawyers for especially meritorious deeds or service that significantly advance the administration of justice or the goals of the legal profession and/or the KBA.
• No more than six Outstanding Service Awards may be given in any one year. • Recipients may be lawyers, law firms, judges, nonlawyers, groups of individuals, or Outstandingorganizations. Service Awards may recognize:
• committeeLaw-related or projects section involvingmember; significant contributions of time; • Committee or section work for the KBA substantially exceeding that normally expected of a and/or • Work by a public official that significantly advances the goals of the legal profession or the KBA;
Pro •Bono Service Award(s) to the legal profession and the KBA over an extended period of time.
This award recognizes a lawyer or law firm for the delivery of direct legal services, free of charge, to the poor or, in appropriate instances, to charitable organizations whose primary purpose is to provide other services to the poor.
• No more than three Pro Bono Awards may be given in any one year. meet the following criteria: In addition to the Pro Bono Award, the KBA awards a number of Pro Bono Certificates of Appreciation to lawyers who • Lawyers who are not employed full time by an organization that has as its primary purpose the provision of free legal services to the poor; • Lawyers who, with no expectation of receiving a fee, have provided direct delivery of legal services in civil or criminal matters to a client or client group that does not have the resources to employ compensated counsel;
legal services to the poor without charge; and/or • Lawyers whosewho have voluntary made a contributions voluntary contribution have resulted of a significantin increased portion access of to time legal to services providing on the
part of low and moderate income persons. KBA Awards Nomination Form
Nominee’s Name ______
Please provide a detailed explanation below of why you have nominated this individual for a KBA Award. Attach additional information as needed.
q Phil Lewis Medal of Distinction q Courageous Attorney Award q Distinguished Service Award q Outstanding Young Lawyer q Professionalism Award q Diversity Award q Pillars of the Community Award q Outstanding Service Award q Christel Marquardt Trailblazer Award q Pro Bono Award/Certificates q Distinguished Government Service Award
______
Nominator’s Name ______Address ______Phone ______E-mail______
Return Nomination Form by Friday, March 6, 2020, to:
KBA Awards Committee Attn: Deana Mead 1200 SW Harrison St. Topeka, KS 66612-1806 Stange Law Firm, PC Attorneys Recognized by 2019 Thank you for helping us Missouri & Kansas Super Lawyers Magazine meet the challenge! KBA YLS raised $2,500 for the 2020 Kirk C. Stange, Esq. Paola A. Stange, Esq. Jillian A. Wood, Esq. Founding Partner Founding Partner Managing Partner Mock Trial Competition • Kirk C. Stange is on the list of Super Lawyers for Family Law in 2019 by Missouri & Kansas Super The KBA YLS Mock Trial Competition is only Kelly M.Lawyers Davidzuk, Partner Magazine. weeks away. Funding for this program includes • Paola A. Stange is on the list of Rising Stars for a $1,000 gift from the Shook, Hardy & Bacon, Family Law in 2019 by Missouri & Kansas Super L.L.P. Mock Trial endowed fund and $2,500 Lawyers Magazine. from an IOLTA grant. Your generosity helped • Jillian A. Wood is on the list of Rising Stars for KBA YLS raise another $2,500 in sponsorships; Family Law in 2019 by Missouri & Kansas Super now, the KBF Board of Trustees will entertain a Lawyers Magazine. request for another $2,500. 855-805-0595 I WWW.STANGELAWFIRM.COM Note: The choice of a lawyer is an important decision that should not be based solely upon advertisements. Kirk C. Stange is responsible for the content. Principal place of business 120 South Central Avenue, Suite 450, Clayton, MO 63105.
Interested in writing for The Journal of the Kansas Bar Association? The Journal is on the lookout for authors and ideas for substantive articles! Send us an outline!!! Friday • April 17, 2020 Love to write, but don’t have the time to do a Tony’s Convention Center heavily researched issue article? How about writing a feature for us? Salina, KS –A historical piece? SOLO & SMALL FIRM –A humorous piece? –A biography/interview with a mentor or someone CONFERENCE in the law you admire? Submit written features or outlines (for substantive articles) to: Patti Van Slyke • [email protected] Questions? Call 785-861-8816 2020 FAMILY LAW CLE Friday • April 24, 2020 DoubleTree Lawrence, KS
14 The Journal of the Kansas Bar Association kba president’s column
There are Not Enough Hours in a Day— How We Should Treat Our Most Valuable Resource by Mira Mdivani
KBA’s Chiefs game event, December 1, 2019
his month, my schedule is intense. I am reminded on ent within 24 hours. Clients, not so much. Clients said that a daily basis that our most valuable resource is time. if their lawyer didn’t get back to them within 30 minutes, With only 24 hours in a day, and if we are lucky they felt abandoned. Clients felt that the lawyer did not care enoughT to spend at least a few of those hours sleeping, we re- or that the lawyer was not a good lawyer. We obviously care alize we have limited time to accomplish things we have to do about our clients. When we hear from clients on weekends and hopefully have a little time left to do what we want to do. and after hours, we often reply, even when we are at our chil- For many lawyers, giving time to our clients is often how dren’s soccer games, while grocery shopping, or even while we make a living. It is not only the number of hours that we on vacations. Have you taken a non-working vacation lately give to our clients that is increasing daily, but also, the in- where you truly did not answer emails from colleagues and tensity. Because of the internet and electronic research tools, clients? I haven’t. we can produce more briefs, more research memos, and draft So how do we deal with the ever-increasing demands on more pleadings faster than ever before. Whatever question is our time and ever-shrinking response expectations with- asked by a client or a colleague tends to be answered faster out losing it? I don’t have all the answers, but here are some and faster. I attended an ethics CLE several years ago where a thoughts: we should give priority to our family, friends, and presenter shared research showing very different expectations colleagues—then we will be sane enough to take really good of how long it should take a lawyer to get back to a client. care of our clients! Lawyers thought it would be reasonable to get back to a cli-
www.ksbar.org | February 2020 15 kba president’s column
New Year Eve silliness with my son Alexey Ayzin
Let’s remember WHY we work. We work to live, not the other way around. So, first order of business is to make time With KBA friends at Annual Meeting 2019 for our loved ones. We will feel more in control of our lives if our date nights are is not subject to unreasonable work ex- we get depressed, and that is where friends are a must. Friends pectations. If we are caught up with our work, we should not nourish your soul— especially if they are KBA members! have to miss our kid’s soccer game because of last minute un- Colleagues reasonable requests; if our beloved dogs are looking forward to our evening walk, that should not get cancelled because I had a delightful time with my colleagues at the Des someone wants an update on their case at 8:00 p.m.—this Moines Art Center. And our firm took a trip to Cancun that obviously includes cats, parrots and other important family was such fun -- a great time to get to know each other away members who may want to go on a walk. If we give them from the pressures of the office! time, they give us back a lot of love and help keep us sane. With KBA members at the ABA meeting If you are lucky, your colleagues are your friends and fam- Friends, Especially KBA Friends ily. If they are just great colleagues, you still owe them re- spect by enabling them to go home on time, not to rush on all deadlines all the time, and to take meaningful vacations. KBA is playing its part by organizing excellent events for law- yers. This past year alone, in addition to an excellent annual meeting and CLEs that provide opportunities for networking and camaraderie, KBA members enjoyed their first outing at Kansas City Lyric Opera, which included a pre-opera dinner and performance of La Boheme. The KBA also had a day at Arrowhead stadium watching a KC Chiefs game. We are working on additional opportunities for KBA members to re- claim some of our overcrowded schedules and take control of our most valuable resource: time. n About the KBA President Mira with former KBA President, Hon. Sarah Warner Mira Mdivani is current KBA President. It is not optional for lawyers to make time for friends. Nick She practices business immigration law at Badgerow gave an excellent presentation to lawyers involved MDIVANI CORPORATE IMMIGRATION LAW FIRM. She loves her KBA friends and with Kansas Board for Attorney Discipline. Based on much colleagues, many of whom are her friends and scholarly research, he explained that lawyers are off the charts the reason why she loves practicing law. smart, off the charts autonomous and industrious, but also “asocial and catastrophically low on resilience.” When we [email protected] don’t win, we tend to take it personally, we blame ourselves,
16 The Journal of the Kansas Bar Association kba president’s column
KBA Day at the Kansas City Chiefs Game
Goat Yoga, KBA Annual Meeting 2019
KBF Dinner, Annual Meeting 2019
www.ksbar.org | February 2020 17 young lawyer section
Active educational outreach is part of YLS mission: Looking ahead to Law Day 2020
by Mitch Biebighauser, YLS President
or as long as I have been a member of the KBA YLS, I Your Voice, Our Democracy: The 19th Amendment at 100.” have been proud to include active educational outreach For Law Day 2020, the FBA plans to coordinate a mock oral as a part of the mission of the section. Through the argument and a reenactment of a landmark trial with local FHigh School Mock Trial competition, we provide active edu- middle and high schools in southwest Kansas on April 30 and cational outreach to high school-age students. Through our May 1, 2020. externship program, we provide active educational outreach Their chapter serves a large geographical region, spanning to law students. I am happy to announce a new partnership western Missouri and all of Kansas. Such an expansive region with The Kansas and Western Missouri Chapter of the Fed- necessarily includes all sorts of communities with all kinds eral Bar Association to provide active educational outreach to of people, some of whom have less access to the legal system middle schoolers and high schoolers in a greater regional area than others. Many students across Kansas may not know any than ever before. lawyers or have any idea how to explore that career path. The The Kansas and Western Missouri Chapter of the Federal justice system can be unfamiliar and intimidating without Bar Association is heading to southwest Kansas to celebrate any frame of reference. Our hope is to introduce students Law Day 2020, which recognizes the role of law in our soci- to the practice of law and the justice system by illustrating ety and aims to help people develop a deeper understanding some of the questions lawyers think about, some of the ways of the legal profession. Law Day 2020 commemorates 100 lawyers advocate for their clients, and some of the ways the years since the ratification of the 19th Amendment—which law impacts their everyday lives. We want students to meet gave women the right to vote—with the theme: “Your Vote, lawyers from a variety of backgrounds so they may be able
18 The Journal of the Kansas Bar Association young lawyer section
to see themselves as professionals, as well—maybe some will meant to be engaging and interactive so students feel they are become lawyers one day. both learning about and participating in our justice system. FBA members will visit Dodge City and Garden City, Kan- sas, for civics programming at three middle schools and one For those interested in traveling to southwest Kansas, high school. The Honorable Teresa James and The Honor- or for those who live in the area able Gwynne Birzer, judges in the Federal District of Kansas, who wish to serve as a Law Day volunteer, will generously serve as judges for the event. We are seeking please sign up at this link: additional judges, practitioners and law students who are in- terested in volunteering to make this event a success. Volun- https://bitly.com/fba-civics-2020 teers can sign up for one or more shifts over the course of the two days; each school visit will last approximately 2.5 hours. Feel free to contact Jordan Carter at Volunteers will help facilitate the mock oral argument and [email protected] with questions. the reenactment programs and, if interested, can serve as a resource for any questions students may have about being a There will also be a dinner on the evening of April 30, 2020, lawyer. Anyone is welcome to volunteer; the only requirement for members of the local bar association to mingle and learn is enthusiasm! more about FBA. For those in the community who want to One piece of the programming is a mock oral argument develop a longer-term relationship with local students, we based on the discovery of vaping materials during the search hope to develop a mentoring program with the schools af- of an underage student’s backpack at school. Based on the ter our civics event. Anyone interested in serving as a mentor Supreme Court case New Jersey v. T.L.O., this fact pattern should also reach out to Jordan Carter (Law clerk for Chief centers on the Fourth Amendment, approached from the Magistrate Judge James P. O’Hara, U.S. District Court, Dis- modern and particularly relevant angle of teen vaping. The trict of Kansas). We look forward to developing this civic program includes substantive conversations related to consti- programming and celebrating Law Day 2020 with students n tutional rights of students, privacy, and search and seizure. across Kansas! Additionally, the program allows students to begin develop- ing legal reasoning, persuasive speaking, and on-your-feet About the Author thinking skills. Mitch Biebighauser is an Assistant Federal The second piece of the programming, yet to be finalized, Defender for the District of Kansas in Wichita, involves a historical reenactment of famous trials. Examples where he practices criminal defense of indigent individuals charged with crimes by the federal include the trial of Susan B. Anthony, who was arrested for government. He was previously in private voting in violation of state laws allowing only men to vote, and practice at Bath & Edmonds, P.A., in Overland the murder trial of Old West frontiersman Wyatt Earp, which Park, where he practiced local, state, and federal involves issues of deadly force by a law enforcement officer. criminal defense. These reenactments involve performances of key segments of the trials, in addition to discussions focused on both histori- [email protected] cal and modern day issues of law and justice. The events are
www.ksbar.org | February 2020 19 To Register: www.ksbar.org/CLE February CLEs LOVE to LEARN??? Take a CLE!
Webinars- February 7- Appeals Begin at the Start of the Case, Not the End February 12- Lawyers Gone Wild: The Ethical Dangers of Compulsive Behavior February 18- Keep it Classy (and Ethical): How Not to Market Legal Services February 25- Ethical Jeopardy: A CLE Game Show March 6- 10 Steps to Client Relationship Mastery March 11- Staying Secure Electronically March 13- Appellate Section Webinar March 17- 501(c)(3) Organizations: Formation, Governance & Best Practices (Washburn Law) April 3- Bankruptcy Full Day Program (Also offered Live) April 22- BIDS CLE (Also Offered Live) June 6- Legislative and Case Law Institute 2020 (Also Offered Live) June 8- Legislative and Case Law Institute 2020 June 19- Legislative and Case Law Institute 2020 (Also Offered Live) June 24- Legislative and Case Law Institute 2020 June 27- Legislative and Case Law Institute 2020 (Also Offered Live) June 30- Legislative and Case Law Institute 2020 (Also Offered Live) Live February 20- Brown Bag Ethics, Lunch & Learn- Topeka April 3- Bankruptcy CLE – Topeka (Also Offered as a Webinar) April 17- Solo and Small Firm – Salina April 18- Sporting KC Young Lawyers CLE and Match- Kansas City April 22- BIDS CLE – Topeka (Also Offered as a Webinar) April 24- Family Law CLE – Lawrence June 2- Brown Bag Ethics Live- Topeka June 6- Legislative and Case Law Institute 2020- Topeka (Also Offered as a Webinar) June 16- Brown Bag Ethics Live- Topeka June 19- Legislative and Case Law Institute 2020- Topeka (Also Offered as a Webinar) June 27- Legislative and Case Law Institute 2020- Topeka (Also Offered as a Webinar) June 29- Brown Bag Ethics Live – Topeka June 30- Legislative and Case Law Institute 2020- Topeka (Also Offered as a Webinar) 20 The Journal of the Kansas Bar Association 2020LEGISLATIVE PREVIEW
by Joseph N. Molina III
he Kansas Legislature began the 2020 Legislative erty tax lid. Each idea had been floated previously with some Session on Monday, January 13th, and for the first even making it into legislation (food sales tax cut), but which time in nearly a decade, the most pressing matter is one gets additional attention remains to be seen. Rest assured, notT school finance. Last year’s funding formula was upheld though, there will be legislators who seize on the tax cut issue as constitutional by the Kansas Supreme Court after the Leg- and push for a comprehensive tax policy in 2020, knowing islature added nearly $360 million to it. While that amount full well it may meet the same fate as in 2019. and the nature of inflation will create funding tension at some Complicating things for the Kansas Judicial Branch bud- point in the future, for now, all is well for K12. get was the filing of a lawsuit by several district court judg- The state budget also seems to be rebounding, as evidenced es and staff asking the Kansas Supreme Court to order the by the Consensus Revenue Estimates in November, which legislature to increase judicial pay. That lawsuit, Fredrick v. project an additional $535 million coming into state coffers Kansas Legislature, Case No. 122,267 was a direct applica- over the next 24 months. There was some concern that rev- tion to the Kansas Supreme Court seeking relief for a history enue levels would drop off significantly, making K12 funding of alleged inadequate funding that the suit claimed violated untenable. Those tensions seem to have subsided with the fa- the Separation of Powers doctrine. The lawsuit stated that vorable economic outlook. the lack of funding had undermined the ability of district With the state predicted to receive additional revenues and appellate courts in Kansas to function as a co-equal, in- above what was previously envisioned, there will be a push dependent branch of government. The plaintiffs sought an to cut taxes. Last session, the Legislature passed two tax bills order determining that the Kansas Legislature under-funded that aligned state tax structure with that of the federal gov- the courts, in a way that would prohibit the legislature from ernment. Those “windfall” tax cut proposals passed both implementing inadequate funding in the current budget, and times, but Gov. Laura Kelly vetoed them. The legislature did that directed the legislature to supplement the judicial branch not have the numbers to override those vetoes. Tax cuts will budget at levels included in prior requests from the courts. remain an issue in 2020. At present, Gov. Kelly is hesitant This was a bombshell lawsuit, rivaled only by the school to pursue a tax cut, deferring instead to stabilizing the state funding case which was finally concluded just last session. Its budget to pursue Medicaid Expansion. Kelly did empanel the ripple effects forced newly named Chief Justice Marla Luck- Council on Tax Reform that recommended a food sales tax ert to cancel her State of the Judiciary speech to the Kansas rebate, property tax rebate, internet sales tax and a local prop- Legislature. Speaker of the House Ron Ryckman had urged
www.ksbar.org | February 2020 21 2020 Legislative Preview
lawmakers against discussion with the judicial branch while result in the resurrection of a proposal that was deemed dead. the lawsuit was pending. The court had a few options: 1) deny The KBA will be gearing up to work on several technical the petition, 2) grant the relief the plaintiffs requested with- proposals in 2020, including an effort to get legislative ap- out hearing, 3) issue further orders asking the legislature to proval for the Uniform Family Arbitration Act, which has respond, or 4) transfer the case to the district court. Ulti- been in the works for over a year. The KBA will also be in- mately, the lawsuit was dismissed by the Court, and tensions volved in Power of Attorney legislation, judicial selection between the legislative and judicial branches eased. proposals, shared parenting issues, and electronic notary up- The 2020 session will also see Medicaid expansion come to dates. The KBA will also monitor the several hundred bills the forefront. This proposal has been around for a few years, that carried over from 2019. but with a Democratic Governor who supports expansion, As always, the KBA will monitor bills of interest to the its chances of becoming law improved. In 2019, the Kansas profession and track them on our 2020 Bill Tracking Chart House passed a Medicaid Expansion bill, but it stalled in the found at www.ksbar.org/bill-tracking Senate, never making it to the floor. It is widely believed that had the Medicaid expansion bill been given an up or down Finally, it is important to realize that 2020 is a presiden- vote in the Senate it would have passed. Gov. Kelly has said tial election year. In Kansas, we will vote on the President, that Medicaid expansion is her top priority. one U.S. Senate seat, four U.S. Congressional seats and all 165 state legislators (125 House/40 Senate). While the Presi- The state budget and taxes always take up a significant dential race will garner the most attention, the U.S. Senate number of session days but this year there are several other race in Kansas will take up a lot of ad space as well. Politi- high-profile issues that will be debated, including: cal heavyweights like Kris Kobach, Congressman Roger • Constitutional Amendment on Abortion Marshall, State Sen. Barbara Bollier, Senate President Susan • Judicial Selection Amendment Wagle and Wink Hartman have all expressed an interest in the open Senate seat, but as of this writing, none has officially • Non-economic Damages Cap entered the race. Many are waiting to see if U.S. Secretary • Banks vs. Credit Unions of State Mike Pompeo (former congressman from Wichita) shows interest. We will have to wait till the primary filing • Medicaid Expansion deadline to see. • Criminal Justice Reform For information on legislators, bills and committee assign- ments you can also visit: www.kslegislature.org. To access These items will be squeezed into a tight calendar. The Ses- live updates during the session, you can follow us on twitter sion Planner released by House and Senate Leadership pro- @KansaBarLeg. Look for our Big Item of the Day and Pic of vided the following deadlines: the Day beginning on Jan 13th. n • Monday, Jan. 13 - Session Begins • Wednesday, Jan. 15 - State of the State Address to the Legislature by the Governor • Thursday, Feb. 27 - House of Origin Deadline • Wednesday, March 25 - Second House of Origin Dead- line • Friday, April 3 - First Adjournment • Monday, April 27 - Veto Session Begins About the Author • Wednesday, May 20 - 90th Calendar Day Joseph N. Molina III serves as the director of legislative services for the Kansas Bar Association. Prior to joining the KBA, he was Those deadlines help committees prioritize legislation and chief legal counsel for the Topeka Metropolitan allow leadership to control committee work product. How- Transit Authority and served as assistant attorney general, acting as chief of the Kansas No-Call ever, there are a few parliamentary rules that can be employed Act. Molina earned a B.A. in political science, to circumvent the deadlines, keeping proposals alive through philosophy, and economics from Eastern Oregon a referral process to exempt committees. These referred bills University and a J.D. from Washburn University are considered “blessed” and survive deadlines. Legislative School of Law. leadership controls which bills are “blessed.” As such, it can [email protected]
22 The Journal of the Kansas Bar Association Ethics CLE meets humor, fo r good! Sponsored by
Pending 2.0 CLE credit hours, including 2.0 E&P credit hours in Kansas & Missouri Where Does the Money Go? How Do We Sign Up for this Amazing, Our designated charities for 2020 are: Funny and Informative Program? • CASA (Johnson/Wyandotte Counties) For a mere $90, you get both the ethics and the good, the • Safehome and Hope House (domestic violence programs) entire Ethics for Good – now in its 21st year! • Metropolitan Organization to Counter Sexual Assault (MOCSA) To register for this program, complete the form below or • Kansas Bar Foundation register online at: • FosterAdopt Connect • In addition, we will fund Ethics for Good scholarships to www.ksbar.org/EthicsforGood each of the KU, Washburn and UMKC law schools and the Johnson County Community College paralegal program.
Who Are these Intrepid Presenters? Wednesday, June 24, 2020, 2:30 – 4:10 p.m.* Polsky Theatre, JCCC Carlsen Center Stan Davis, Ethics for Good Elder Statesman 12345 College Blvd. (College & Quivira) Jim Griffin, Scharnhorst Ast Kennard Griffin, P.C. Overland Park, Kan. Mark Hinderks, Stinson LLP *Reception afterward sponsored by the JCCC Foundation Todd LaSala, Stinson LLP Hon. Steve Leben, Kansas Court of Appeals Friday, June 26, 2020, 2:30 – 4:10 p.m. Jacy Hurst, Kutak Rock LLP The Nelson-Atkins Museum of Art, Atkins Auditorium Todd Ruskamp, Shook, Hardy & Bacon L.L.P. 4525 Oak St. Hon. Melissa Standridge, Kansas Court of Appeals Kansas City, Mo. Parking: $10 museum non-member parking fee; carpooling encouraged
Contact Deana Mead, KBA Associate Executive Director at: [email protected]* (Email) • 785-861-8839 (D) • 785-234-3813 (F) *
Please mark the date you will be attending: June 24 June 26 Name ETHICS FOR Address City ST Zip GOOD XXI Email KS. Sup. Ct. # $90 Check # enclosed Bill to: Make checks payable to Kansas Bar Foundation MasterCard Visa AmEx Discover Send checks / credit card info* to: Account Number CVC Kansas Bar Foundation 1200 SW Harrison St. Exp. Date Signature Topeka, KS 66612 *The Kansas Bar Foundation does not accept credit card information via email or fax. You may submit your form via email or fax without credit card information and then contact Deana Mead at 785-861-8839 to provide your credit card info.
www.ksbar.org | February 2020 23 kansas bar foundation
Need a Trust Account? Consider IOLTA
The Interest on Lawyers Trust Accounts (IOLTA) program is an idea that originated in Brit- Did you know... if ish, Canadian and Australian jurisdictions in the 1960s. In the U.S., IOLTA was pioneered in you practice in Kansas and Florida and now exists in every state in the country. The Kansas IOLTA program was estab- Missouri, you can have lished in 1984. IOLTA accounts that ben- Through IOLTA, attorneys and law firms place IOLTA–eligible client funds in a pooled inter- efit both states? est bearing trust account. IOLTA funds support the following: If you practice in both states and you wish to • Legal services to the disadvantaged participate in IOLTA in • Public education about the law Kansas and Missouri, you • Administration of justice programs and other programs as approved by the court can setup an IOLTA acct. in the same bank if it has branches in both states. Without IOLTA, nominal or short term client funds held in non-interest bearing, pooled check- You will need to have two ing accounts benefit neither the client nor the lawyer. Under IOLTA, these same nominal or short- accounts and they need to term funds are still pooled into one account. However, Kansas banks may remit interest on these be labeled for each state pooled accounts to the Kansas Bar Foundation. Each year, the IOLTA Committee selects organi- (one titled Kansas IOLTA zations to receive IOTLA grants. In the past few years, approximately $100,000 per year has been and the other Missouri distributed to organizations in Kansas that provide civil legal services to low-income Kansans. IOLTA). In Kansas, par- ticipating in IOLTA is still voluntary. If you wish to decline participation, you are required to send a let- It is easy to join almost 4,000 Kansas attorneys who are part of the IOLTA program ter or a declination form to the clerk of the appel- • Complete the IOLTA Application. Visit www.ksbar.org/iolta to print an late courts. Please send a application. copy of any declination to the KBF. • Take the completed and signed application to an interest bearing approved financial institution. There is a list of approved institutions on You can find the No- www.ksbar.org/iolta. tice of Declination form • Mail, fax or email a scanned copy of the completed and signed KBF IOLTA here or below in IOLTA application to Resources. https://cdn. ymaws.com/www.ksbar. org/resource/resmgr/site/ Kansas Bar Foundation kbf/grants/iolta/declina- 1200 SW Harrison St. tion.pdf Topeka, KS 66612-1806 Fax: (785) 234-3813 IMPORTANT: If you Email: [email protected] (please put IOLTA Application in the subject line) choose not to participate in IOLTA in Kansas and you have Kansas clients, you still must establish a IOLTA would not be possible without the commitment of 118 Kansas banks that have agreed non-IOLTA trust account to provide IOLTA to their customers. The support of these banks and the staff that provide in Kansas. Refer to Kansas monthly or quarterly reports to the Kansas Bar Foundation is invaluable! Thank you Kansas Rules of Professional Con- banks! You can view a list of IOLTA banks at http://www.ksbar.org/iolta. duct 1.15(d)(3)(ii
24 The Journal of the Kansas Bar Association The 2020 Department for Children and Families Series: Child Welfare System Task Force Update
by Linda Gallagher Strategic Initiatives Administrator
DCF Kansas City Region Tier Three Recommendations The Task Force adopted the following nine recommendations as important recommendations:
15. Immediate Response. The State of Kansas should provide immediate response 24/7 to hotline calls and dedicated immediate response investigators to be dispatched, when 7. Service Setting. The State of Kansas should prioritize deliveringwarranted; services for children and youth in natural settings, such as, but not limited to, homes, schools, and primary care offices, in the child’s community when possible. The16. needsFront-End of the Staffing child and. DCF family should should employ highly skilled and experienced front-end child be the most important factor when determining the settingswelfare where staff; services are delivered; FORCES TASK Child Welfare System Task8. ForceReintegration Support. The State of Kansas should17. Caseprovide Plans consistent,. The State individualized, of Kansas should restructure the case plan process to improve , AND evidence-based support throughout reintegration forcoordination children inof services need of among care all and stakeholders to strengthen collaboration in the case; , COMMITTEES caregivers, including, but not limited to, parents and foster parents; FINAL REPORT 18. Post-adoptive Support. The State of Kansas should ensure both federal and state COMMISSIONS subsidies to adoptive families and implement best practices for post-adoptive support OTHER 9. Foster Homes. The State of Kansas should invest in foster home recruitment and retention by increasing funding for supplemental services; training and providing additional financial incentives that support older youth, high-needs children, and birth families, as ● The duties, responsibilities, and contributions of stateConclusions agencies, nongovernmental and Recommendations entities, well as modifying licensing requirements; 19. Maximizing Federal Funding. The State of Kansas should conduct an audit of potential and service providers that provide child welfare services in the State of Kansas; funding streams by program area to ensure the State is maximizing federal benefit; The Task Force adopted the following 23 recommendations, organized10. byAnalysis priority intoof Service three tiers.Delivery. The State of Kansas should establish a work group or task Report of the More information regarding the references to the report of the Mental Health Task Force may be 20. Resources and Accountability. The State of Kansas and DCF should provide services that ● The level of access to child welfare services, including, but not limited to, health and force to conduct an analysis to: 1) determine what it costs to adequately fund high-quality found in the crosswalk attached to this report as Appendix A. (Notechild: The welfare numbering services of; 2) by 2021, evaluate the benefitsare in theof bestprivatizing interest childof children welfare in their care by supporting a system that is accountable mental health services and community based services in the State of Kansas; to the recommendations is for ease of reference only and does not reflect priorityservices order.); and 3) determine the best public/private collaborationand resourced to welldeliver enough child to welfare provide the needed services. Considerations should include, services. DCF shall determine appropriate outcome butmeasures not be andlimited periodic to, the evaluations awarding of funds based upon qualifications and not financial ● The increasing number of children in the child welfare system and contributing factors; shall be conducted to ensure contractors are achievingfactors; setimproving outcomes workforce and provide morale and tenure; and providing technology to improve Tier One Recommendations opportunities for ongoing collaboration and review. Summaryefficiencies reports; should be provided to the Legislature semi-annually; Child Welfare System Task● The Force licensing standards for case managers working Thein the Task child Forcewelfare adopted system; theand following five recommendations as its highest priority 21. Serious Injury Review. The State of Kansas, in accordance with federal and state recommendations: 11. Safety Net, Early Childhood Programs, and Early Interventionconfidentiality. The laws, State should of Kansasformalize a Serious Injury Review Team to establish and ● Any other topic the Child Welfare System Task Force or a working group deems should fully fund, strengthen, and expand safety netconduct and earlya review childhood process programsboth internally and externally for an immediate and necessary 2019 Kansas Legislature response when a child dies or suffers serious bodily injury after having previous contacts necessary or appropriate. 1. Workforce. The State of Kansas should invest in the child welfarethrough system public workforce services by (DCF, mental health, substance abuse, and education) and with DCF Protection and Prevention Services concerning prior abuse and neglect; increasing funding for recruitment, retention, and support to effectivelycommunity-based attract and retainpartner programs, and reduce barriers for families needing to access high-quality staff; concrete supports. The State of Kansas should ensure availability and adequate access to early childhood behavioral health services statewide.22. Court The Appointed Task Force Special recommends Advocates. The Legislature shall fund Court Appointed Special 2. Data Infrastructure. The State of Kansas should create a single, cross-system,consideration web-based, of related Mental Health Task ForceAdvocates recommendations (CASAs) 1.2to ensure (Medicaid the availability of CASA volunteers in all jurisdictions, integrated case management and data reporting system that canExpansion be used by Models), the Kansas 1.3 (Housing), 3.1 (Regional Model),without and disrupting6.4 (Early theIntervention); current funding CASAs receive from the State of Kansas; and Department for Children and Families (DCF) and all relevant agencies and stakeholders to efficiently and effectively share information (e.g., education,12. Information dental, Sharing medi.c Theal, State of Kansas should 23.establishPhysical a multi-disciplinary Access. The Legislature approach should fund increased physical access between children in need of care and their families, as well as ensure that families are supported in : Senator Vicki Schmidt behavioral); and share information across and among stakeholders, irrespective of state borders, in accessing services as required by the case plan. HAIRPERSON : Representative Steve Alford [until 1/9/2018]; Representative Erin Davis accordance with federal and state laws; C 3. Families First Act. The State of Kansas should fund and institute the federal Families Additional Considerations: The Legislature should consider restoring Temporary Assistance for -CHAIRPERSON First Prevention Services Act in Kansas and follow the federal13. guidelines;Non-Abuse Neglect. The State of Kansas should provide differential responses for VICE Senators Barbara Bollier [until 7/18/2018], Laura Kelly, and Ty Needy Families (TANF) eligibility to its pre-2011 status. : newborns and refer them to evidence-based services. The Task Force recommends EMBERS [from 1/9/2018] M 4. Access to Care. The State of Kansas should require access to high-qualityconsideration and ofconsistent related Mental Health Task Force recommendations 6.1 (Expand Service medical and behavioral health care for Medicaid-eligible high-Options),risk youth 4.2 through (Regional the Model), and 6.4 (Early Intervention); and LEGISLATIVE : Gina Meier-Hummel, Secretary for Children and Families (non- MEMBERS Medicaid state plan or other appropriate sources of funding; and BACKGROUND Children and Families to establish a Child Welfare Masterson [from 7/26/2018]; and Representatives Linda Gallagher and Jarrod Ousley 14. Relative Search. The State of Kansas should ensure that diligent search for relatives for System Task Force (Task Force) to study the child -LEGISLATIVE 5. Code for Care of Children. The Judicial Council should reviewpossible the Code placement for Care begins of immediately whenThe a child 2017 is Legislature removed from passed the House home. Sub. DCF for welfare system in the State of Kansas. Previously, NON the 2015 and 2016 Special Committees on Foster Children (CINC Code), especially with regard to: a) the way DCF’sshould definition establish of benchmarks“non for relativeSB identification126 (SB 126), and directing shall monitor the Secretary related for voting); Patricia Long, Director of Prevention and Protection Services (PPS), Department for abuse neglect” relates to cases under the CINC Code, and b) modificationsoutcomes, such to meet as number the of relatives identified within the first 30 days, number of Care Adequacy, the House Committee on Children Children and Families (DCF) (non-voting); Rachel Marsh, Saint Francis Community Services child’s ongoing best interests for permanency. children in relative placements and length of time for the child to reach that placement, (non-voting); Lindsey Stephenson, KVC Kansas (non-voting); Hon. Daniel Cahill, district court and number of relatives contacted. DCF shouldKansas regularly Legislative report Research on these Department benchmarks and 0-3 2018 Child Welfare System Task Force outcomes to the Legislature. judge, appointed by the Chief Justice of the Supreme Court (Chief Justice) [until 4/4/2018]; Hon. Tier Two Recommendations Jeffry Larson, district court judge, appointed by the Chief Justice [from 4/4/2018]; Mickey Edwards, state director, Kansas, Courtappointed Appointed by the SpecialJudicial Advocates, Council; Ashlyn appointed Yarnell, by the family Chief law The Task Force adopted the following nine recommendations as high priority recommendations: Justice; Alicia Johnson-Turner,ad litem citizen review board member, appointed by the Chief Justice; Mary Tye, foster parent organization representative, appointed by the Judicial Council; Serena 6. Foster Care Re-entry and Transitional Services. The State of Kansas should provide Hawkins, guardian young adults age 18-21 with the option to seamlesslyKansas re-enter Legislative the child Research welfare system, Department 0-2 2018 Child Welfare System Task Force and ensure continuity in medical, behavioral health and support services for youth who attorney, appointed by the Judicial Council; Gail Cozadd, licensed social worker, appointed by have exited the custody of DCF; the Judicial Council; Dr. Katherine Melhorn, Child Death Review Board representative; Sandra Lessor, Sedgwick County District Attorney’s Office, appointed by the Kansas County and
District Attorneys Association; and Sgt. David Ohlde, Marysville Police Department, appointed Kansas Legislative Research Department 0-1 2018 Child Welfare System Task Force by the Kansas Association of Chiefs of Police.
CHARGE
House Sub. for SB 126 (2017) directs the Secretary for Children and Families to establish a January 2019 Child Welfare System Task Force to study the child welfare system. The bill directs the Task Force to convene working groups to study the general administration of child welfare by the Kansas Department for Children and Families (DCF), protective services, family preservation, reintegration, foster care, and permanency placement. Additionally, the Task Force and each working group are directed to study the following topics: The level of oversight and supervision by DCF over each entity that contracts with DCF ● to provide reintegration, foster care, and adoption services;
fter 16 months of delving deep into problems within • The increasing number of children in the child welfare the Kansas child welfare system, the Child Welfare system and contributing factors. System Task Force issued a report in December 2018 The task force convened three working groups to study the Athat contained 23 broad recommendations for improving var- following topics: Working Group A—General Administration ious aspects of the system through changes to law, rules and of Child Welfare and Foster Care; Working Group B — regulations and system processes. Protective Services and Family Preservation; and Working The Kansas Legislature authorized formation of the task Group C—Reintegration and Permanency Placement. force by passing SB 126 in 2017. Among the issues the task The 23 recommendations each included a range of one to 11 force was charged with studying were: supporting strategies identified by the three working groups • The level of oversight and supervision by the Kansas De- for implementing the recommendations. The task force’s partment for Children and Families (DCF) over each work inspired the framework for DCF’s efforts in 2019 and entity that contracts with DCF to provide reintegration, beyond. DCF’s strategies to achieve better outcomes create foster care and adoption services; the foundation for strong resiliency and prevention networks, • The duties, responsibilities, and contributions of state timely exits to permanency and health care and well-being agencies, nongovernmental entities and service provid- coordination. The task force sunsetted on July 1, 2019. ers that provide child welfare services in Kansas; Key recommendations of the task force generally fall into • The level of access to child welfare services, including five categories: workforce, prevention and service setting, ac- health and mental health services and community-based cess to care and infrastructure, information sharing and early services; and childhood. Following are key recommendation accomplish- ments as of December 2019 and planned future actions:
www.ksbar.org | February 2020 25 dcf series: child welfare system task force update
Workforce m Increase access to safety net programs. • Key recommendation accomplishments: Access to care m DCF has 42 new positions in Child Protective Ser- • Key recommendation accomplishments: vices (CPS) funded by the Kansas Legislature along m with 80 paid student practicum spots RFP issued for Juvenile Crisis Intervention Centers to provide short-term care; m Positive impact with employee retention efforts such m as telework options, paid educational leave and employ- DCF Medicaid liaison; ee engagement through local retention committees m Cross-agency workgroups are addressing issues in- volving access to care. Managed care organizations are m Front line practitioner use of the Child Protector app to recognize mechanisms of child abuse injury informa- included in these; tion developed by doctors at Children’s Mercy Hospital m American Academy of Pediatrics has proposed cre- • Future action: ation of a universal medical history form; m Qualified Residential Treatment Program (QRTP) m Cognitive Integration Skills with youth; launched Oct. 1 as part of Family First initiative. m Goal of 1:5 ratio of supervisors to front-line CPS QRTPs are group homes with additional services and workers (requires legislative action); and accreditation; and m Flexible work schedules for DCF staff. m Some new Psychiatric Residential Treatment Facility (PRTF) beds have come online to care for more children Prevention and Service Setting and youth with mental health and behavioral needs. • Key recommendation accomplishments: • Future action: m $13 Million in Prevention Grants awarded across 17 m Medicaid expansion is a top issue in the 2020 legisla- community providers in Kansas to support families and tive session. Task force Working Group B recommended prevent the need for entering foster care. funding and expanding KanCare as a supporting strat- m New practice approaches initiated to increase family egy for its recommendation on Safety Net, Early Child- and youth engagement in prevention and case planning hood Programs and Early Intervention; such as Signs of Safety, Structured Decision Making, m Amplify referrals to Mental Health in Schools pro- Team Decision Making, Ice Breakers, Family Finding gram; and Special Response Team, for youth who are absent or on the run from their living arrangement. m Implement community service coordinators with managed care organizations; and m Increased daily payment rate and array for relative and licensed foster caregivers effective October 1, 2019. m Establish Juvenile Crisis Intervention Centers. m New Qualified Residential Treatment Program Infrastructure and Information Sharing (QRTP) for youth placed in residential settings, with an • Key recommendation accomplishments: assessment and Court’s decision about QRTP placement appropriateness within 60 days the placement start date. m Comprehensive Child Welfare Information System design (CCWIS); m New family preservation grants began Jan. 1 with three grantees. Family preservation is voluntary services m New CareMatch foster care placement matching provided to families with a child at risk of entering fos- system was launched Oct. 1. It allows child welfare case ter care. The new grants include both short term case management providers and child placement agencies to management services and intensive in-home services; send referrals, make placements and manage bed avail- ability and increases the likelihood of children being m New foster care grants began Oct. 1 with four grant- ees providing child welfare case management services in placed in foster homes closer to their home communities. the four regions. • Future action: • Future action: m Four-year development plan for CCWIS (requires legislative action); and m Decision on requested juvenile justice reform rein- vestment funds; m Sharing information with Wichita law enforcement. m Evidence-based practice in foster care with the goal of more timely permanency; and
26 The Journal of the Kansas Bar Association dcf series: child welfare system task force update
Early Childhood • Key recommendation accomplishments: m Expanding access to child care subsidies; and LEGAL INTERPRETERS m Early childhood care and education statewide needs SIGN LANGUAGE & 100+ assessment effort completed through a federal grant FOREIGN LANGUAGES administered by the Kansas Children’s Cabinet and Trust Fund in partnership with DCF, the Kansas De- partment of Education and the Kansas Department for Health and Environment. A strategic plan for improv- ON-SITE • OVER THE PHONE ing early childhood care and education in Kansas is be- DOCUMENT TRANSLATION ing developed. Forty-six Community Action Lab grants were awarded to local communities for short-term early Interpreters & Translators for courts, childhood projects. depositions, and client meetings • Future action: m Moving Child Care Quality Recognition Improve- ment System from pilot to statewide rollout in Spring 2020. Contact Kim Chao DCF and other state agencies are committed to this effort, 913.491.1444 as evidenced by the extensive progress that has been made in [email protected] the past year in accomplishing recommendations and sup- porting strategies of the task force. As DCF Secretary Laura www.TranslationPerfect.com Howard has said, this is a marathon. The child welfare system did not get broken overnight and it will not be fixed over- night. Previously, the system was focused on intervention, not pre- vention. DCF is focusing on putting into place changes that are sustainable. We will not lose sight of the ultimate goals: to keep Kansas children safe and strengthen Kansas families. The Report of the Child Welfare System Task Force to the 2019 Kansas Legislature can be found at this link: http://www. Save the Date kslegresearch.org/KLRD-web/Publications/CommitteeReports/20 18CommitteeReports/child_welfare_sys_tf-cr.pdf n Kansas Bar Association Annual Meeting About the Author 2020 Linda Gallagher served in the Kansas House of Representatives from 2015-18, representing District 23 (portions of Shawnee, Lenexa and Overland Park). She served on the Children & Seniors (vice chair) and Social Services Budget committees and on the Child Welfare System Task Force and was Thursday • Friday vice chair of its working group on Reintegration and Permanency Placement. Since April 2019, Gallagher has been strategic services administrator in the Kansas City Region of the June th & th Kansas Department for Children and Families. 11 12 Hyatt • Wichita, KS Registration Information Coming Soon! www.ksbar.org | February 2020 27 law practice management tips and tricks
The Consumer Electronics Show
by Larry Zimmerman
The massive, annual Consumer Electronics Show (CES) in Lenovo ThinkBook Plus – The ThinkBook Plus is a truly Las Vegas is ongoing as this goes to print and already there unique offering with a paperwhite e-ink display on the out- have been a variety of interesting announcements this year. side cover of the 13” laptop. The e-ink screen can display Not all products announced at CES actually make it to mar- calendar, text, and other notifications or act as a notetaking ket but quite a few can be expected by the end of the year. platform. It consumes little power, looks clean and crisp like Dell and Lenovo Folding Tablets – Both laptop giants paper, and nicely supplements the full HD display inside. The are betting on dual screen, folding tablets for 2020. Dell’s Ori ThinkBook Plus will start at $1,200 this year. and Lenovo’s X1 Fold open to a 13.4” OLED screen surface Samsung Sero TV – Samsung has recognized how ubiq- when fully unfolded. The devices look and function like a uitous mobile phones are for video and image recording and tablet or offer a virtual keyboard on one half when opened sharing and the majority of mobile phone imagery is verti- partway like a laptop. Dell’s Duet is twice the size offering cally oriented. The Sero TV accommodates this by rotating up to 26” of screen and a detachable keyboard providing an from a horizontal to a vertical orientation to make full screen unprecedented amount of screen space in a such small form presentation more natural – no large black or blurred frames. factor. It may seem like a simple trick but it allows mobile phone
28 The Journal of the Kansas Bar Association law practice management tips and tricks
imagery to fully fill a large screen and makes for more com- the pillow until silence returns. It aims to provide a gentle pelling display. Anticipated to arrive this year near the $1,000 nudge to reposition rather than the harsh slap expected from price point. an exhausted bed mate. The newest version will ship this year Hachi Infinite Touchscreen Projector- The short-throw for $420. projector from Hachi can display a bright, crisp image up to Cosmo Connected Helmet – The Cosmo with glasses pro- 26” on any surface and the image will respond as a touch- vides high-tech safety options for motorcyclists. The glasses screen with 10 points of touch. The portable three-pound offer a full heads-up display of the vehicle’s instrumentation device includes an onboard battery, microphone for voice and offer an array of sensors monitoring the environment for command via Amazon Alexa, and dual 5W speakers. It is potential dangers around the cyclist and signaling on-coming Android-powered and Bluetooth-enabled to allow wireless risks. The Bluetooth-connected glasses and helmet cannot ex- screen casting. Shipping is anticipated in March at around ecute emergency maneuvers but they can call 911 and emer- $1,000. gency contacts for help, providing GPS coordinates if you are Mophie PowerStation Go – Mophie is well-known and down. The helmet and glasses will retail for $300. respected for its portable power banks and the PowerStation Google Assistant Web Page Reader – This enhancement Go adds a new trick – it can jump start your car. In addition to the Google Assistant will allow users to say, “Hey Google, to dual USB-A charge ports, the new model adds a wireless read this page” and it will read the text of a webpage in a charging pad and an attachment that can jumpstart any car natural-sounding voice. AI is improving such that it will only or SUV. The PowerStation Go will retail for $160 and should read relevant text and ignore navigation buttons, ads, and arrive on shelves in February. other clutter that infests websites. The Web Page Reader will n IVEA Time-C Smartwatch – Most smartwatch activity be a free enhancement to Google Assistant later this year. trackers only monitor the user’s stats like heart rate and activ- ity levels. The analogue face, steel band Time-C monitors en- vironmental factors as well. It can measure sun/UV exposure, About the Author pollution and particulate levels, humidity, temperature, am- Larry N. Zimmerman is a partner at Zimmerman bient noise, and ambient lighting. This full-spectrum moni- & Zimmerman P.A. in Topeka and former toring station on your wrist will ultimately help wearers be adjunct professor, teaching law and technology more alert to environmental factors on health and well-being. at Washburn University School of Law. He is one of the founding members of the KBA Law Pricing starts at $500. Practice Management Committee. Neutrogena Skin360 – The Skin360 app uses your phone’s front-facing camera to take a 180-selfie and then process and analyze over 100,000 pixels to measure skin health. The algo- [email protected] rithm evaluates features like smoothness, wrinkles, fine lines, dark spots, and dark circles to watch for problem areas and to create a custom skin care maintenance regime (using Neu- trogena products, of course). Available now for Android and iOS. Opte Beauty Wand – Throw away the old-fashioned foun- dation and concealer because there is a new technology for concealing age spots, sun spots, and pigmentation issues. Hartman Oil is actively Sweep the Beauty Wand over your face and it scans the sur- face of your skin, analyzes spots, and then uses 120 nozzles purchasing oil related to spray pigment and moisturizer like an inkjet printer. Dem- onstrations (in a controlled environment) make it look fast, Royalty and Working interests. simple, and effective with no mess. The Beauty Wand should Please contact Chuck Gorney at ship this year and starts at $600. 316.636.2090 or [email protected] Motion Pillow by TenMinds – Snoring is a problem for the snorer and anyone else within earshot but the Motion Pil- low aims to stop it. The memory foam pillow houses mul- tiple air chambers that can inflate and deflate on command. That command comes when microphones in the pillow detect snoring and the pumps activate to shift the snorer’s head on R
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30 The Journal of the Kansas Bar Association REBEIN BROTHERS TRIALT RIAL LAWYERSLAWYERS
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DavidRebein_Ad_R2.indd 2 4/29/19 11:45 AM Pieces Resting in Why Family Harmony is a Frequent Casualty of Most Estate Plans
by Tim O’Sullivan Pieces PART I
Happy families are all alike; every unhappy family is unhappy in its own way. Leo Tolstoy, Anna Karenina Chapter 1, first line
The post mortem squabblings and contests on mental condition…have made a will the least secure of all human dealings. esting in Lloyd v. Wayne Circuit Judge R 23 N.S. 28, 30 (Mich. 1885) You never know people until you have shared an inheritance with them. Tom Campbell, co-founder, Family Business Institute
Introduction n its broader context, estate planning extends beyond the confines of the investment, management and dispo- sition of an individual’s assets during a disability and following death. It also includes ensuring that intangible family values, not the least of which is family harmony, are protected in the estate planning process. The need Ifor clarity, accuracy and comprehensiveness in estate planning documents in addressing the many technical tax, asset protection, governmental resource, and other goals involving the disposition and management of a client’s property following a disability or death have been a long-standing cynosure of an estate planning practice. How- ever, their achievement bears only a tangential relationship to the achievement of family harmony goals. When asked, most clients readily conclude that preserving family harmony in the estate planning and admin- istration process is a very important goal. It is not all that atypical for clients to go as far to say that they would rather give their property to a charity than have their children fight over their estates. Given the prominence that parents normally would place on this estate planning goal, it would seem to ineluctably follow that address- ing family harmony issues would be commonplace in the estate planning process. Unfortunately, that has not been the case, underscored—and compounded by—the virtual absence of such discussion in estate planning textbooks, legal seminars and articles. It is further attested to by the relative paucity of provisions in wills and revocable trusts, as well as in counseling rendered by estate planning attorneys, that would serve to undergird its preservation. resting in pieces
However, this goal is not likely to be raised by clients, who, The discussion that follows addresses estate planning is- as one might expect, are typically uninformed of the impact sues adversely impacting family harmony and presents salu- estate planning decisions can have on family harmony. Un- tary strategies the author has found efficacious in enhancing like other professional fields such as medicine and financial its preservation. Such strategies are practical in nature and planning, with respect to which most individuals have be- the legal principles involved for the most part well known come quite aware from their environment, the media and to estate planners, for which few cites are needed. It will be their education of their complexities and the corresponding assumed in such discussion that parents have more than one need for professional advice when making health decisions, adult child, for there obviously would be little to no risk of clients seeking estate planning advice, unaware of its nuances family disharmony in a multi-child family currently having and complexities, tend to be predisposed to simplistic, often only minor children or a single-child family relating to a par- errant, preconceptions. It is thus left to their legal counsel ent’s estate plan, save that in such latter circumstance which to importune the consideration of this aspect, among other, may result, as discussed infra, from a parent’s disclosure of the estate planning considerations. estate plan. For ease of reference, any references herein to a The author submits that the general failure of estate plan- “testamentary instrument” or “instrument” of a parent are in- ning attorneys to appropriately address this issue, including tended to include both wills and revocable trusts; to the estate by the author for a substantial portion of his practice, has and its administration to both probate estates and revocable been a major factor in the very high incidence of family dis- trust estates; and to the fiduciary or financial fiduciary of the harmonies during the estate planning process, following a estate to a trustee of a revocable trust estate or executor or client’s disability, and in the post-death administration of a personal representative of a probate estate, unless the context client’s estate. For estate planners, such high incidence has should indicate otherwise. rendered the term “nuclear family” a double entendre. Choosing the Appropriate Fiduciary The main factors for such inattention appear to be: an ab- sence of professional sensitivity to the importance of this is- He who represents himself has a fool for a client. Abraham Lincoln sue; the mistaken view that this subject matter is more ap- propriate for family counselors and advisors; an enduring Death is not the end. There remains the squabbling over practice inertia centering on the technical aspects of estate the estate. planning; and a lack of expertise on strategies, and accom- Ambrose Bierce panying form provisions, that have the capability to adroitly The estate planning decision likely to have the greatest im- address this issue. pact on family harmony is the choice of financial fiduciary Family harmony is not the only resultant casualty. If family to serve during a client’s disability (agent under a financial harmony is lost following the disability or death of a family power of attorney and trustee of a revocable trust) and fol- member, the goal of reducing costs in the administration of lowing death (the trustee of a revocable trust and executor or an estate is likewise put at a high risk of failure. Although personal representative of a probate estate). Although clients such failure concomitantly increases the need for attendant have an understandable propensity to prefer an adult child legal services, the author in no way believes this is a signifi- serving in such capacity (following their death if unmarried cant factor in such failure. Without question, estate planning or normally after the death of a surviving spouse excepting attorneys would be expected to pursue what is in their clients’ second marriages), the all too frequent acquiescence of estate best interests, devoid of any consideration of their own eco- planning attorneys in this preference, sans a meaningful dis- nomic interests. cussion with clients such decision’s potential adverse impact Although by far the most frequent, family relationships on family harmony, presents a very high risk of its loss in the among adult siblings of a parent are not the only relation- plan’s implementation. ships vulnerable to family disharmony in the estate planning Estate planning clients are no more prepared to make an process. Also vulnerable are relationships between a parent informed decision concerning the appropriate fiduciary of and adult child, a parent and a child’s spouse, adult siblings their estates in the absence of objective professional advice and step-siblings, and between stepchildren and a stepparent. than are individuals in determining medical choices without The impact family disharmony has on estate planning and the advice of a physician. The same is also generally true re- administration issues is quite familiar to most estate planning garding individuals lacking knowledge in investment matters attorneys, although the impact their estate planning practices making investment decisions bereft of the advice of knowl- have—or fail to have—on such adverse consequences would edgeable experienced investment advisors. be expected to have a much lesser familiarity, the only logical Based on practice experience, professional inquiries, and reason extant such issue is not already being duly addressed. the polling by the author of estate planning attorneys and cer- tified public accountants at professional seminars, the author
34 The Journal of the Kansas Bar Association resting in pieces
from work and family to undertake a time-consuming task for which the child is normally ill-prepared, inexperienced and for which the child may not be in receipt of even a modi- cum of sibling appreciation. The reasons for the high frequency of such adverse family harmony consequences are myriad. First, beyond obvious sib- ling jealousy, resentment, past conflicts, and avarice, parents are the family’s “emotional glue” which becomes abruptly ab- sent following their passing. Upon the death of the surviving parent, grief and “orphan syndrome” often combine to create a highly charged emotional cauldron adversely impacting the harmonious administration and distribution of the parent’s estate. It is not all that unusual for the mindset of adult chil- dren in this environment to revert to a level rivaling prior pre- pubescent sibling rivalry. In-law involvement typically only has determined that there is an approximate one-third to for- serves to increase family tensions. ty percent risk of significant family discord in the post-death If parents believe such tensions can be avoided by appoint- administration of an estate attributable to a child or children ing more than one child or all children as co-fiduciaries, they serving as a financial fiduciary of a parent’s estate when a par- are likely to be mistaken. For in addition to posing admin- ent is survived by more than one adult child. Irrespective of istrative hurdles depending upon the number of children ap- the exact percentage, there is little question but that such risk pointed, this strategy typically serves to create other friction is quite high. As one might expect, there appears to be a direct points, as children frequently are not of like mind on the correlation between the number of children and number of various issues impacting the administration of an estate. In in-laws and the degree of such risk. Interestingly, however, that context, most any issue can become material, including the size of the estate appears to be a lesser factor. As estate those which in other contexts might be considered quite in- planning attorneys well know, a high percentage of such fam- consequential. Further, children serving as co-fiduciaries who ily disharmony extends well beyond the closing of the estate, ultimately end up having to do a disproportionate amount often for the remainder of affected children’s lifetimes. of the estate administration, without compensation or ap- The risk of family disharmony increases to some extent preciation from their siblings serving in the same capacity, should a child additionally serve as financial fiduciary for a can become resentful. Should an odd number of children be disabled parent either as agent under a financial power of at- appointed, children holding a minority position can quickly torney or as trustee under a revocable trust. It increases to an accrue a high level of resentment. Conversely, having an even even greater extent should a child serve as fiduciary not only number of children as co-fiduciaries may result in a conten- of a parent’s estate, but also of a trust created under the in- tious deadlock. strument benefitting another child or a stepparent. This latter Compounding the problem, a child serving as financial -fi circumstance creates a very high risk of disharmony extend- duciary not infrequently assumes an arrogant “I’m in charge” ing beyond just the normal conflicts and tensions occurring posture, thereby disaffecting siblings. The author has learned between the child named as fiduciary and such child’s sib- that a child most desirous of serving as a fiduciary may be lings, but also those between such child, the stepparent and the child especially prone to possessing a divisive imperious stepparent’s children, and between such child and siblings attitude if named as financial fiduciary of a parent’s estate. with respect to decisions regarding the stepparent’s beneficial Frequently, communication problems with siblings, both as interest in the trust should such child’s siblings have a remain- to content and frequency, can occur regarding the adminis- der interest in the trust following the death of the stepparent. tration of a parent’s assets, be they real or perceived. Other A misconception among children is that serving as a finan- children feeling there is an information vacuum tend to pre- cial fiduciary is some sort of “plum” or parental honor be- sume the worst, often garnering a suspicious “I wonder what stowed upon them. It is also often viewed by a child as their my [brother or sister] is doing” perspective. final parental “grade card” of filial merit. This perspective is Parents should also be made mindful that a child serving a major cause of disgruntlement among siblings not chosen. as financial fiduciary can have a significant financial conflict However, the appointed child usually comes to a quick real- of interest. Many decisions a child makes, or has the discre- ization such appointment presents a significant burden with tion to make, as financial fiduciary in the administration and little offsetting benefit. In addition to incurring any resultant distribution of the estate, may be exercised at the edge of such family disharmony, such child typically has to take time away
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discretion to such child’s benefit. Even when such decisions are impartially made, siblings can have a far different subjec- tive perspective. Compounding family disharmony opportunities is the complexity of a financial fiduciary’s tasks. Mistakes can be made in investment, management and tax decisions, espe- cially if family fiduciaries make decisions without benefit of competent professional advice. Even when making sound fi- duciary decisions, other family members are often prone to “second guess” their decisions. Compared with experienced third parties, children serving as fiduciaries tend to be much less diligent and compliant with the provisions of the testa- mentary instrument and statutory requirements governing the management of an estate, beyond simply being a reflec- tion of their lack of knowledge and appreciation of the subject matter. records; Rather than viewing their fiduciary role from an objective (7) decisions regarding whether estate property should be perspective, children often feel that other family members sold, when it is to be sold and at what price during the post- should simply trust them, even sometimes to the extent of not death estate administration process, often with little concern, expecting an inventory or accounting. A request by another awareness or appreciation by other children of their sibling’s family member for an accounting or other information is of- fiduciary responsibilities in that regard; ten viewed by a family fiduciary as questioning their veracity. (8) whether the child fiduciary properly sought or chose Administrative mistakes, both real and perceived, can engen- appropriate legal and tax counsel for the estate; der ill will and heighten the level of disagreements, all too frequently resulting in substantial family discontent. Other (9) whether the assets of the estate were accurately report- children also commonly disagree on the family fiduciary’s ed by the fiduciary on an inventory; management determinations on a plethora of administrative (10) whether claims against the estate were properly settled; matters for which they are devoid of knowledge as to their (11) whether claims on behalf of the decedent were settled legal requirements. Many administrative tasks are rife for dis- properly; agreement simply because they rest upon the personal judg- ment of the fiduciary applied to the facts at hand. (12) tax elections during the administration of an estate having a disparate impact upon beneficiaries and whether a As estate planning attorneys well know, such matters corresponding equitable adjustment which should be made in include: favor of adversely affected beneficiaries; (1) the distribution of tangible personal items (jewelry, (13) whether a child serving as a fiduciary should take an furniture, pictures, clothing, family heirlooms, etc.) among administrative fee and its reasonableness; children for which there was no specific disposition in the testamentary instruments or documents of the decedent; (14) whether any transfers by the decedent to a family mem- ber during the parent’s lifetime were appropriately considered (2) the distribution of assets in kind in satisfaction of as loans or gifts in determining the family member’s share of proportionate shares of the estate based on their fair market the estate; value; (15) whether a child who cared for a parent in a non-fidu- (3) the timeliness in completing the administration of the ciary capacity during the parent’s lifetime has a legal or eq- estate; uitable basis for seeking compensation for such services from (4) whether to make interim distributions to family mem- the parent’s estate; bers prior to the termination of the estate; (16) whether property passing outside the estate to a child (5) whether a sibling serving as a fiduciary sufficiently through joint tenancy or a beneficiary designation should be consulted with them on administrative matters, even if not taken into account in determining a child’s share of the es- legally required to do so; tate; and (6) whether accountings of administration expenses and (17) the appropriate time for the closing of the estate. Ame- receipts were timely furnished and accurate, a frequent prob- liorative strategies regarding the first and last four above mat- lem due to children often failing to keep adequate financial ters are addressed below.
36 The Journal of the Kansas Bar Association resting in pieces
Of particular note, when a child serves as financial fidu- family harmony can be exacerbated when the testamentary ciary, siblings are often of the view that their sibling should instrument has waived fiduciary liability for actions by in- not be entitled to a fee, notwithstanding being legally entitled dividual fiduciaries which are merely negligent rather than thereto in the same manner as a third party, even if the in- intentionally errant. Although such provisions are designed to strument specifically provides for compensation for the fam- not penalize a child for unintentional mistakes, such exonera- ily fiduciary. This position often is the result of other family tion does little to assuage, and may even worsen the rancor of members being of the opinion that the administration of the other family members, who are thereby left with no means of estate by a sibling is strictly a “family matter.” This view typi- redress for damages incurred by a sibling’s mismanagement of cally will be resented by the child serving as financial fidu- their parent’s estate. ciary as indicating a lack of appreciation for their efforts and Due to the foregoing formidable risks to family harmony services as fiduciary. Even if family members are accepting of posed by a child serving as financial fiduciary of a parent’s a fiduciary fee being taken by a sibling, they frequently take estate, there is rarely a family situation in which the risk to objection to the amount, particularly if their sibling has not family harmony in having a child serve as financial fiduciary assiduously kept records of time expended and matters ad- of a parent’s estate is insignificant, no matter how harmo- dressed as a fiduciary, a quite common situation. nious the family during the parent’s lifetime. Because such The foregoing problem areas abound even in circumstances situation does not present itself during a parent’s lifetime and where the family fiduciary is diligently trying to exercise -fi the factors affecting family harmony are both complex and duciary responsibilities in an objective, even-handed manner. multitudinous, it is simply not feasible for parents to be able When such is not the case, other serious consequences can to properly evaluate and predict this risk in their own family ensue. Less than impartial child fiduciaries are tempted to with any reasonable degree of certitude. manipulate the decision-making process for their own eco- The confluence of the foregoing factors can result in nam- nomic gain. They also may go to the extreme of ignoring the ing a family member as a financial fiduciary being the ulti- dictates of the testamentary instrument in favor of exercising mate “acid test” of family harmony, taxing it to its limit. Any their own judgment as to what their parent “really intended.” resultant damage will obviously tend to be much greater in Although certainly isolated occurrences, most estate planners more harmonious families, for such families have “more to having any significant tenure have experienced incidences of lose” by such an occurrence. In situations where significant the purloining of estate property or embezzlement of estate family disharmony is already present, naming a family mem- funds by a child serving as a fiduciary ber as fiduciary carries with it a much higher risk of discon- Such problems are compounded in a “blended family” situ- tent and attendant administrative costs. ation where a parent is leaving property to both children and Interjected into such breech is a parental proclivity to name stepchildren. This is one of the most potentially divisive and a child as financial fiduciary of their estate. At first blush, contentious of all family estate planning situations. As op- parents quite understandably tend to view the administration posed to naming a child as sole fiduciary, which can be quite of an estate, as do their children, as simply a “family mat- incendiary, the all too frequent unwise strategy of balancing ter,” thus, unless there is an estranged relationship with their competing family interests by naming an equal number of children or they are otherwise held in disfavor, instinctively children and stepchildren as co-fiduciaries is even less worthy concluding a child who “knows the family” is best suited to of consideration. It has the inverse effect of engendering fre- carry out their intent. However, simply put, the administra- quent and costly disagreements between family factions on tion of a parent’s estate is not a “family matter.” It is a legal both sides and among family members on each side, all too and financial matter which only happens to involve the ad- frequently resulting in a costly stalemate. In discussions with ministration and distribution of parental assets, the objective clients, the author has likened this ill-advised strategy to ty- administration of which is not furthered, but in fact normally ing the tails of two cats together. impeded, by the impact of family dynamics. Family dynam- Beyond the negative family disharmony consequence all ics should play absolutely no part, legally or otherwise, in the too frequently occasioned by having a child serve as finan- interpretation to be given an estate planning document or the cial fiduciary, there is also potential personal liability result- proper administration of an estate. The term family dynam- ing from errors in the management of the parent’s estate. ics refers to the way family members interact with each other, This can be both emotionally and financially devastating to with its inherent emotional aspects, and thus its impact is a family fiduciary. It often occurs due to a family fiduciary independent of any objective aspects. When family dynamics “winging it” regarding the administration of the estate with- impact the administration of a parent’s estate due to a child out seeking legal advice, from oversimplifying the process, serving as financial fiduciary, any semblance of objectivity by sheer ignorance, or simply to avoid incurring accounting or family members can quickly become evanescent. legal professional fees. Any resultant emotional damage to Even if such family harmony risk was objectively deter- (Continued on Page 40)
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minable in the abstract, parents would not be expected to clients in making this momentous decision. The rationaliza- be objective in determining this risk in their own family. tion that an estate planning attorney is simply following a The understandable natural tendency is for parents to have a client’s wishes as to a financial fiduciary is unacceptable. Only rather Panglossian view that their children possess the better through a comprehensive and extensive objective discussion elements of human nature, presenting little to no risk of fail- with clients, disabusing them of any misconceptions and pre- ing irrespective of the circumstances. Consequently, prior to conceptions, fully informing them of its inherent significant having a full discussion with counsel of this issue, parents are risks to family harmony, and providing viable alternative likely to dismissively conclude that family disharmony result- strategies, will clients even have the opportunity to make the ing from the appointment of their child as financial fiduciary informed decision on this issue they deserve and which estate simply “won’t happen in my family.” planning attorneys are professionally ordained to provide. Beyond the family disharmony risk, naming a child as fi- Parents who have gained an appreciation of the high risk nancial fiduciary is accompanied by an administrative bur- to family harmony engendered by their appointment of a den. A child must devote significant attention away from child as financial fiduciary of their estate have a natural ten- their family and personal or work schedule to attend to es- dency to shift to preferring a more distant relative to serve in tate matters with which the child typically has no prior ex- such capacity, such as a parent, brother or sister. However, perience. Such burden is increased if a child is geographically prior to doing so, they should be advised that: (a) normally challenged with respect to administrative duties requiring no estate administrative experience will be gained by such such child’s physical presence, such as inventorying and dis- appointment; (b) depending upon the nature and degree of tributing tangible personal property, overseeing estate sales such relationship, such relationship will at least to some de- and meetings with other family members and professional gree impair such relative’s objectivity in the administration of advisors. the estate; (c) they may be placing a burden on a relative at a Naming a child as a financial fiduciary of a deceased par- time in their lives (such as during retirement) which can be ent’s estate is analogous to an owner of a highly technical and quite inconvenient and obtrusive; (d) such appointment and complex business employing a manager having no prior ex- resulting administrative actions with which a beneficiary may perience or expertise in the business, potential financial con- disagree, as well as administrative errors, can result in damag- flicts of interest in such capacity, and who is at high risk of ing relationships between such relative and the beneficiaries incurring divisive personality conflicts with employees. Obvi- of the estate; and (e) there will be a probable expectancy by ously, such hiring would normally be ill-advised, posing a sig- estate beneficiaries that such relative will perform fiduciary nificant economic and employee morale risk to the business. services for no fee. A child having inherent financial conflicts of interest who is Naming a Child to Serve as at high risk of being resented by, and having disagreements Co-Fiduciary with a Third Party with, siblings, and who has no prior experience as financial fiduciary of a parent’s estate, similarly puts the estate at a sub- The foregoing family harmony risks when a child serves as stantial economic and family harmony risk. fiduciary are only partially assuaged by naming a child and Just as parents cannot be truly objective as to the risks in an independent experienced third-party fiduciary, such as a naming a child or children as fiduciary of their estates, a child bank or trust company, as co-fiduciaries. Although having serving as fiduciary cannot be objective as fiduciary vis-a-vis such third party as a co-fiduciary should substantially reduce such child’s relationship with siblings in the discharge of such the administrative burden on the child fiduciary, other chil- child’s fiduciary duties. Siblings in turn similarly cannot be dren may still be resentful in not having been named to serve objective about their sibling’s exercise of such sibling’s fiducia- in such capacity and may nonetheless blame their sibling for ry duties. Even attorneys, notwithstanding their legal train- administrative decisions with which they disagree. Further, ing to be objective, as Abraham Lincoln aptly noted, have a the lack of objectivity of a child may adversely impact the de- “fool for a client” should they choose to represent themselves. cision-making process. Finally, having a child and third party Emotions, family dynamics, conflicts of interest and inher- as co-fiduciaries may increase administrative costs. Consider- ent partiality severely impair the objectivity of all siblings in- ation thus should be given instead to the alternative strategy volved in such situation to a degree normally far beyond that discussed below of naming a child or children as “fiduciary which would be expected to adversely impact the objectivity discharger(s)” and appointing an independent experienced of an attorney favoring self-representation. third-party as sole fiduciary. Unfortunately, the parental propensity to name children Prior to concluding discussion on this option, it should be as fiduciaries of their estates is at least acquiesced in, if not mentioned that such strategy nonetheless is worthy of con- actually shared by, a high percentage of estate planning prac- sideration under a family business succession plan involving titioners who fail to provide objective fulsome advice to their a farm or other closely held business. Parents are understand- ably quite reticent in reposing the management of their fam-
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an estate would naturally have a lesser predilection to focus on attending to such task at the highest level of their abil- ity. Naming an estate planning attorney as fiduciary would be analogous to asking an architect who designed a building to also supervise its construction, a request with respect to which the architect would likely demur, for similar reasons. Secondly, an attorney may not have the experience, ad- equate support staff, or internal controls and procedures necessary to competently and efficiently handle the invest- ment, accounting, and other ancillary administrative aspects unique to estate administration. Having the authority and legal ability under the instrument to delegate such facets to a third-party fiduciary may only serve to increase overall costs. Third, many administrative tasks of a financial fiduciary re- ily business in a third-party fiduciary during the estate ad- quiring less expertise can be performed quite satisfactorily at ministration period. A family member thus could be named a lesser cost than at average hourly attorney rates or perhaps as co-fiduciary with an independent fiduciary for the sole and even at paralegal fee rates (e.g., supervising distribution of exclusive purpose of such child managing the family business tangible personal property items, meetings with family mem- or voting the interest in the business entity, either solely or bers and other professionals involved in the administration, as co-fiduciary with an independent third party, during the etc.). Fourth, although there certainly is no ethical conflict period of administration of the estate prior to its termina- in an estate planning attorney serving as a financial fiduciary tion. The independent fiduciary would solely handle all other under the testamentary instrument the attorney drafted, pro- aspects of the estate administration, thus preserving family vided the attorney has adequately informed a client of other harmony in the more volatile aspects of the administration of alternatives and their risks and benefits vis-a-vis appointing the trust estate. However, this strategy is probably only viable the attorney as fiduciary, estate beneficiaries nonetheless may with revocable trusts, for there is no statutory authority for have a negative perception of an attorney who drafted the a bifurcation of fiduciary responsibilities between or among estate planning documents also serving as fiduciary of the es- executors. tate. They may view an attorney assuming both roles to be purely self-serving, question whether any exculpatory clauses Naming an Independent Third-Party Fiduciary in the testamentary instrument to protect individual fidu- A viable alternative strategy to naming a child or other ciaries, including the attorney, from simple negligence were relative as financial fiduciary is naming a financially astute, proper or fully understood by the decedent, or believe the experienced and objective third party, such as a certified pub- attorney would not admit to any deficiencies or errors in the lic accountant (preferably having no relationship, business testamentary instrument the attorney drafted. Finally, at- or otherwise, with a family member) or corporate fiduciary torneys serving in such capacity would need to confirm that (bank with trust powers or a trust company), to serve in such their fiduciary duties are covered by malpractice insurance. capacity. Such appointment unquestionably serves to greatly The foregoing considerations lead many attorneys to have a reduce internecine family stress and attendant risks to family standard practice of dissuading clients from naming them as disharmony, as well as provide a much greater assurance that fiduciaries, notwithstanding the remunerative aspect of such the estate will be properly and objectively managed. an appointment. This is not to say that estate planning attorneys also are Competent third-party fiduciaries, such as certified public not proper candidates worthy of consideration as third-party accountants having significant experience as financial fidu- financial fiduciaries. However, depending upon the situation ciaries and corporate fiduciaries, are impartial and can draw and attorney under consideration, and notwithstanding the upon a wealth of practical and professional experience in fact that an attorney would be expected to be quite competent managing estates. In addition to their family harmony en- as to all legal matters in the administration of an estate, several hancing benefits, they tend to make far fewer administrative factors can militate against an attorney being the appointee. mistakes, achieve on the average a better investment return, First, a high percentage of estate planning attorneys simply keep better records, provide more accurate and informative do not enjoy serving as financial fiduciaries of estates, many accountings, and have more knowledge of the complex laws facets of which involve non-legal matters they tend not to governing the administration of estates (e.g., Kansas probate find enjoyable. Estate planning attorneys are by nature estate statutes, the Kansas Uniform Prudent Investor Act, and the planners, not administrators. Attorneys less than comfortable Kansas Uniform Trust Code) than would a child serving in or enthusiastic with the administrative aspects of managing such capacity.
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For obvious reasons, an estate planning attorney is likely to pendent upon their hourly rates, as well as that of their para- receive a greater economic benefit if a family member, rather professionals, and the total time expended. Such total time than a third party, is named to serve as financial fiduciary. in turn will vary among such individuals based upon their Family members usually tend to select their parents’ estate efficiency, knowledge, experience and sophistication and -ef planning attorney as fiduciary counsel to assist them in ad- ficiency of their form systems. Also, as compared to bonded ministering the documents the attorney drafted. They also corporate fiduciaries, such services may or may not be cov- typically need far more legal advice, assistance and support ered by malpractice insurance, an important consideration. than would a third-party fiduciary experienced in handling Nonetheless, such fees, when converted to a percentage fee estate matters. The enhanced risk of significant family dis- “after the fact,” would likewise only be expected to exact a harmony when a family member is serving as a financial -fi very small percentage of the estate. By way of comparison, duciary additionally can significantly foster increased legal clients often routinely find acceptable a fee of perhaps one costs. Thus, when an estate planning attorney advises clients percent per year on their investment assets for financial and to consider the family harmony and estate administration investment advice, and perhaps a six percent commission on benefits in naming an independent financial fiduciary, clients the sale of their personal residence. can be assured that their attorney is advising them solely as Certainly, when factoring in the risk of fractious family dis- to what is in their best interest, not that which might benefit putes resulting from the appointment of a family fiduciary, their personal financial interest. the net administrative costs in having a competent third- Cost/Risk versus Benefit Analysis in party serve as fiduciary can actually result in a net savings to Naming an Independent Trustee the estate as opposed to a family member serving as a fidu- ciary. When the foregoing aspects are fully and objectively Clients, particularly those with modest estates, have an un- explained to clients under a comprehensive risk versus benefit derstandable fear that the costs of an experienced third party analysis, clients normally will conclude that such fiduciary serving as financial fiduciary may significantly deplete their fees associated with the post-death administration of their estates. Such fear is normally unfounded. Such costs can estate are acceptable, and may well result in an economic substantially reduce other administrative costs, for, as noted benefit, particularly when the salutary aspects of enhancing above, experienced third parties are possessed of the knowl- family harmony and relieving children from bearing such ad- edge in the aspects of their administrative duties that fam- ministrative burden are also factors meriting consideration. ily members must, and should, otherwise glean from their engagement of attorneys and accountants or risk economic Such decision may be best posited with clients as analogous damage to the estate should they not do so. It can also lessen, to that of taking out property insurance. Individuals insure if not avoid, potential legal expenses that otherwise might against risks they have determined they can’t afford to take have arisen from family squabbles due to the appointment of based on a risk versus benefit analysis. In the author’s city of a family fiduciary. Finally, such administrative fee is deduct- Wichita, for example, there is an approximate 1 in 400 risk ible against the income or any estate tax liability of the es- of a tornado or high wind destroying or seriously damaging tate, thereby normally resulting in a reduced “after tax” cost. a personal residence over a 40-year period. Nonetheless, de- I.R.C. §§67(e)(1); 2053(a)(2). spite such extremely low risk and the highly likely prospect of wasting casualty premium payments over an entire lifetime, Individual professional third-party fiduciaries, such as cer- most residents choose to insure against such loss. They do tified public accountants and attorneys, normally charge their so having determined that such possibility, however remote, services at hourly rates. Corporate fiduciary fees, depending of such a major economic loss is a risk they simply can’t af- upon the size and complexity of the estate and the corporate ford to take when balanced with the relative cost of insuring fiduciary named, are typically based on a percentage of the against it. By way of contrast, when individuals name a child estate ranging from one to three percent of the size of the as financial fiduciary of their estates, they are incurring an -ex estate, the larger the estate, the smaller the typical percentage ponentially higher risk of damaging or destroying what they fee. If the property is income producing real property, the nearly typically view as a much more valuable intangible as- fee is typically a percentage of the income, say 10 percent of set, family harmony, and a possible attendant high economic its annual net income. Such fee will normally be somewhat cost as well. Moreover, in contrast to property insurance, greater with respect to probate estates. Obviously, such cu- minimizing such risk is simply a matter of comprehensively mulative fee would be greater should the corporate fiduciary addressing it in the estate plan, with no subsequent periodic also be called upon to serve as a fiduciary during a period of premium payments being required. disability. Following comprehensive discussions of this issue with cli- The fees for individual fiduciaries charging hourly rates are ents, the author has found that approximately three-fourths harder to compare, not only with respect to corporate fidu- of clients will choose to not name a child in favor of an in- ciaries, but also among themselves. Their total fee will be de- dependent third party as financial fiduciary of their estates.
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Prior to engaging in such extended discussions with clients on posed in a Trust Protector or Special Trustee to discharge any the issue, the experience ratio approximated the inverse ratio. trustee, other than the grantor or grantor’s spouse, thus pos- sibly also including a child serving in such capacity, and ap- The Role of a Fiduciary Discharger point a corporate fiduciary or a successor corporate fiduciary, By naming an independent financial fiduciary, parents as the case may be, in the event such party has determined need not abjure any input of their children in the estate ad- that same was merited by family disharmony or was other- ministration process. The family member who would other- wise desirable under the circumstances to ensure the proper wise have been the client’s choice as financial fiduciary may and efficient cost administration of the trust estate. be named as “fiduciary discharger” in the testamentary in- However, because the provisions appointing executors are strument, possessed of discretionary authority to discharge a statutory, any change in the executor or personal representa- non-family party serving as fiduciary and name as successor tive in a probate estate, even that which could possibly be fiduciary another third party (usually preferably limited to effectuated by a fiduciary discharger, is subject to judicial ap- another third party such as a certified public accountant or proval. K.S.A §59-701, et seq. Thus, such provisions are of corporate fiduciary). More than one child also may be named lesser efficacy than if reposed under the provisions of a re- to serve in such capacity, with decision-making by a majority vocable trust, where such parties possessing such authority or unanimity of such children. would be termed “trustee dischargers.” The author has found it normally preferable, depending Naming a Child to Serve as Financial Fiduciary upon the number of children and their individual attributes, only during a Period of Disability for both family harmony reasons and to avoid children feel- ing “left out” of the process, to provide that all children serve Although naming a child to serve as a financial fiduciary as fiduciary discharger. Further, it is also typically advisable to during a parent’s disability (financial agent or trust of a re- provide that such decision be made by unanimity rather than vocable trust) carries with it some risk of family disharmony, by majority in recognition of the major import of such deci- particularly should the child charge a fee for services, the sion, to avoid children taking umbrage at being outvoted, as much greater risk is normally during the post-death estate well as not risking the possibility that a majority decision was administration period. Thus, many clients may desire naming motivated by only a segment of the children in furtherance of a child to serve as financial fiduciary in the event of their dis- their personal subjective interests. The tenure of a fiduciary ability, when the need for professional advice in the adminis- discharger would end upon the termination of the estate and tration of their assets is of lesser importance, while appoint- not extend to any sub-trusts created under the instrument. ing an independent fiduciary to serve as fiduciary during the post-death administration of their estate. At that time, such As above discussed, family disharmony is minimized when child’s role could transition to that of a fiduciary discharger. family members are not directly involved in the estate ad- Clients making such choice, particularly those having modest ministration process, whether as a fiduciary or even as a co- estates, also may do so out of a concern that substantial third- fiduciary with a non-family member. The role of fiduciary party administrative costs would be incurred should there be discharger puts the desired family member(s) in control of an extended period of disability. the party who or which is to serve as fiduciary without having the burden or any “family baggage” which can accompany Nonetheless, a parent should be reminded of the bur- a family member being named as sole financial fiduciary or den that such fiduciary responsibility places on a child and co-fiduciary with an independent fiduciary. The inclusion of be cautioned that there still is some degree of risk that the such provision normally satisfies the preference clients of- other children will question such child’s management of the ten express for family input to be involved at least in some parent’s assets, be suspicious of their influence on a parent, respect in the estate administration process. Such authority question any fees they take, and disagree on the child’s man- also may enhance the responsiveness of third-party fiducia- agement of parental assets. Further, a child serving in such ries to the beneficial interests of family members in the es- capacity may conceivably access the parent’s testamentary in- tate. Having a family member or members serve as “fiduciary strument and attempt to influence a disabled parent to amend discharger” additionally permits them to negotiate the low- the estate plan in the child’s favor, which may even occur in est fiduciary fee possible. Consequentially, a high percentage circumstances where the disabled parent has questionable le- of clients conclude that this approach achieves the “best of gal capacity to execute a testamentary instrument. both worlds,” and due to its remoteness from actual fiduciary Authorizing Child Financial Fiduciary to decision-making, carries little risk to family harmony in its operational phases. Appoint Successor Corporate Fiduciary Under the provisions of a revocable trust, to the extent not Those clients who nonetheless choose to appoint a child or reposed in a fiduciary discharger, authority could also be re- children to serve as a financial fiduciary of their estates typi- cally further name other children as successor fiduciaries, per-
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haps followed by a corporate fiduciary in the event there is no Summary child willing and able to then serve. In that circumstance, the parent should be counseled that it may be advisable to con- It’s tough to make predictions, especially about the future. sider providing in their testamentary instrument for a child Yogi Berra serving as fiduciary to resign at any time and appoint a corpo- Clients’ decisions in naming a financial fiduciary should rate fiduciary to serve in such child’s stead, thereby supersed- only be made after due consideration of all its relevant aspects ing the otherwise applicable fiduciary succession provisions. with their estate planning attorney and what such decision Not infrequently, another child named as successor fidu- portends for the future of their family and estate plan. Un- ciary, who may resent not having been named by the parent fortunately, a very high percentage of individuals executing to serve as initial financial fiduciary, will unduly criticize or financial powers of attorney and testamentary instruments challenge a sibling’s fiduciary decision-making, perhaps in are unlikely to have been sufficiently apprised of the forego- the hope such fiduciary will resign and open the door for the ing factors to be able to make an informed decision. Far too disgruntled child to become the successor fiduciary. Includ- often, there is only a brief superficial discussion of this issue, ing such provision has the beneficial aspect of mollifying any limited in essence to legal counsel inquiring of the client as to further damage to family disharmony and avoiding the child the client’s preference, and if the nominee is a child, perhaps financial fiduciary having to make the Hobson’s choice of follow up inquiries as to whether such child is mature, finan- either continuing to serve in a disharmonious family envi- cially responsible and “gets along” with siblings. ronment or resigning as fiduciary, only to have a disgruntled Devoid of a comprehensive understanding of the complex sibling serve as such child’s successor and continue the aggra- issues involved and viable alternatives, a parent is typically vation of family harmony. predisposed to select a child as fiduciary of their estate or It also allows a child serving as fiduciary to foster family successor fiduciary following a spouse. Conversely, as noted harmony at the outset by informing siblings that such child above, in the author’s experience a strong majority of clients did not ask for the appointment (assuming that is factually who have been comprehensively and objectively informed correct), did not consider such position to be other than a of the foregoing factors will decide instead to go outside the strictly financial matter to be handled professionally and ob- family in selecting a financial fiduciary. Even more telling, jectively according to the provisions of the parent’s testamen- the author has experienced situations in which children who tary instrument, and does not intend to take a fee for serving have been similarly informed of the potential risk to family as a financial fiduciary if the estate administration proceeds harmony and the burden they will likely bear if named as fi- smoothly without family rancor. However, should such ad- nancial fiduciary have indicated to parents they prefer declin- ministration become disharmonious, such child would indi- ing such role in favor of the appointment of an independent cate such child would intend to exercise such option, given third party fiduciary. by a parent in furtherance of family harmony, to resign and Nonetheless, whether resulting from a lack of thoughtful name a corporate fiduciary to serve in such child’s stead. In a analysis, instinctively concluding that disharmony simply revocable trust, such provisions could also be made applicable “can’t happen in my family,” or having decided that the ben- when a parent is under a disability. efits they perceive by naming a child as financial fiduciary This option, in conjunction with the foregoing statement outweigh the risks, a minor percentage of well-informed cli- to siblings, should: (a) disabuse siblings of any notion that ents nonetheless will choose to name a child as financial fidu- such child is on a “power trip;” (b) serve to disincentivize all ciary of their estate. In the end, such decision ultimately must siblings from fomenting family disharmony in view of the rest with the client. The role of estate planning attorneys is additional administrative costs they likely will perceive to be not to proselytize, recommend or otherwise try to persuade significant should their sibling resign in favor of a corporate clients one way or another in such determination, but simply fiduciary; and (c) remove the incentive of a successor sibling to objectively inform them of all appropriate considerations, to unduly criticize the child serving as financial fiduciary or as well as alternative fiduciary strategies. In short, the finan- seek such child’s discharge in the hope of succeeding as finan- cial fiduciary “pros and cons balance sheet” should speak for cial fiduciary. itself. From the perspective of an estate planning attorney, whatever decision duly-advised clients ultimately make in As with the aforementioned inclusion of a fiduciary dis- their choice of financial fiduciary should always be considered charger provision, this option is of lesser efficacy under the the appropriate decision for that client. provisions of a will than a revocable trust. For unlike wills, such appointment of a successor trustee is not statutorily sub- Disposition of Tangible Personal Property ject to judicial approval. Following the selection of the financial fiduciary of the estate, the disposition of tangible personal property among
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children probably incurs the second greatest risk to family to timely secure the parental residence following the parent’s harmony. Such risk is clearly at its zenith if a child is serv- death by changing the locks. This action also protects against ing as financial fiduciary. Consequently, this aspect of estate the residence being entered by third parties who also may administration is worthy of more than a brief discussion. The possess a key. Nonetheless, this protective action, if under- goal of most parents is to provide for their distribution among taken by a child serving as fiduciary is likely to meet with im- children either as equally in value as possible or provide for an mediate umbrage by siblings. Other children tend to distrust equitable method in their distribution, or a balancing thereof. a sibling’s motives, can be in high dudgeon in being “locked The various methods in doing so have wide variances not only out” of their parent’s residence by their sibling, and may even in their ability to accomplish such goals, but also in their im- have suspicions of their own that such action was taken by the pact on family harmony. sibling for the purpose of purloining residential items for the At the outset, it should be acknowledged that the import sibling’s personal benefit. of this risk varies considerably based on the nature, quantity Another problem area is provisions in the instrument either and value of such property in any given estate. Frequently, failing to clearly define tangible personal items to be distrib- such facet has little import on family harmony due to most of uted to family members or which are too inclusive. Overly a decedent parent’s property of significance to children hav- broad definitions exacerbate family harmony problems by un- ing been previously distributed by parents to them prior to necessarily increasing the types of items, particularly those of their death. In other situations, it may consist of a houseful high value for which children typically have little sentimental of such items, many of substantial economic and emotional attachment. Thus, consideration should be given to limiting value. Thus, the important aspects of the distribution meth- the definition to specified categories of sentimental personal ods outlined below should be considered in that vein. That property items (e.g., jewelry, scrapbooks, pictures, clothing, being said, as most estate planning attorneys well know, even heirlooms, etc.) or items of interest for perhaps personal usage items of little economic value often take on great emotional (e.g., furniture, recreational and yard equipment). This nor- significance in the process of their post-death distribution mally excludes such “big ticket” items as cars, airplanes, and among children. boats, as well as valuable paintings, artworks and collections The high risk of family disharmony in the disposition of the (such as coins, stamps, and figurines). Such items not only tangible personal property is primarily due to the emotional- typically have little sentimental value, they are often more in ly-charged environment in which it takes place, replete with the nature of investment property. When having substantial competition among siblings for the possession of personal monetary value, they tend to greatly destabilize family dy- property items imbued with sentiment, nostalgia and which namics in their distribution. often serve as an enduring emotional touchstone to parents A more limited definition also favors estate planning ob- the children have lost. In such complex environs, the problem jectives. Tangible personal property items having little sen- areas are legion, including parental approaches in discussions timental or personal use value to children, particularly when with their children eliciting their preferences in this regard, they are of significant monetary value, are usually best dis- the failure of parents to specifically delineate their personal tributed under the residuary clause of the testamentary in- items disposition in lists, the selection of the financial -fi strument among family members in the same proportions as duciary, the discretion reposed in the financial fiduciary in the parent’s other remaining assets. making such distribution, the provisions in the testamentary instruments governing their definition and distribution, and Disposition of Tangible Personal Property by List the prospect of children intentionally violating the applicable As estate planning attorneys are well aware, Kansas law as- distribution process. sists in the disposition of tangible personal property items by The last above problem area is of initial concern in the dis- providing, without need of following the formalities of wills, tribution process. Irrespective of the process, steps should be for an individual to dispose of tangible personal property not initially taken by the fiduciary following a parent’s death to used in a trade or business by simply leaving a written list ensure that the process is not compromised at the outset. A (hereinafter referred to as a “Personal Effects List” or simply child may “jump the gun” and employ “self-help” by surrepti- “List”), provided there is a specific reference in the testamen- tiously taking items from the parent’s residence. This is not tary instrument to the possibility of leaving such List. K.S.A. that infrequent an occurrence, particularly when a child has a §§ 59-623; 58a-418. The law requires that the List either be key to the residence and, with respect to larger items, a ready in the handwriting of-or signed by-the testator. Id. Further, means of transporting its contents, such as a pickup. This pos- the List must describe the items with “reasonable certainty” sibility has been termed by the author’s partner as the “pickup so that they are identifiable. Id. Such disposition would have doctrine.” been able to be effectuated even in the absence of such specific A propitious avoidance strategy is for the financial fiduciary statutory authority in revocable trusts simply by drafting the List in the form of a trust amendment. Quite obvious to estate
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planning attorneys, identifying the beneficiaries of furniture place, such as in an unlocked cabinet or drawer in the parent’s and household effects items by referencing numbers or names residence, or even in a secure place, such as the parent’s safe attached to the back of the item, rather than by a descrip- deposit box, when a disapproving child is named as successor tion on the List, although a time-worn technique employed financial fiduciary or otherwise has access to the box. Thus, by many parents, is inherently flawed due to their “mobile” to best protect against an unintended disclosure of the List nature, a facet well appreciated by children disapproving of a during the parent’s lifetime, as well as its protection following specific disposition. the parent’s death, the List should be placed with the parent’s If parents duly provide for the disposition of all significant original documents in a sealed envelope in a safe deposit box. tangible personal property items of interest to children either Irrespective of whether a child is a signatory on the box, a in their testamentary instruments, or usually much more copy of the most updated List should be sent to the parent’s efficiently and desirably, under the provisions of a Personal estate planning attorney and so noted on the List, to protect Effects List, the potential resentment by children of paren- against its “disappearance.” tal choices in their disposition aside, family harmony would The List should be revisited periodically, removing any not be adversely impacted. However, given the normally sig- items which may have been lost, sold, or destroyed in the pre- nificant number of such items, their changing makeup, the vious year, and adding more recently acquired items which vicissitudes of parental desires regarding their disposition, parents believe might be of sentimental or personal use value procrastination, and simply the reluctance of many parents to their children. The parent also may find it desirable to make in undertaking this task, this is understandably far from a a video of such items for identification purposes. It would also normal occurrence. be informative to include in the audio component of such Nonetheless, rather than leave the post-death disposition of video the provenance and relationship of any such items to tangible personal property to methods discussed below, none family heritage. of which are completely without family harmony risks, par- Parental Discussions with Children in Preparation of List ents should be strongly encouraged by their estate planning attorneys to prepare the List. The List should, at a minimum, Prior to preparing a Personal Effects List, it is advisable for include items the parent perceives to be of the most signifi- parents to discuss with children their preferences in the devo- cant sentimental or personal use value to children. At a min- lution of tangible personal property items. Rather than leave imum, its preparation should also reduce the possibility of clients to their own devices in that respect, it is preferable for contentious, and frequently baseless, assertions by a child that estate planning attorneys to outline methods for parents to a parent “told me that [a particular item] would be mine.” If garner sufficient information for them to make informed and true, such item obviously likely would have been included in equitable distribution decisions (from the parent’s perspec- the List. It would also bring into question the location and tive) that are least hazardous to family harmony. The discus- possession of any item that was on the List but absent from sion that follows analyzes the effectiveness of various strate- the residence. gies in achieving that objective. The preparation of a Personal Effects List is especially -im Parents should preface such discussions by advising chil- portant in second marriages where, unless the personal resi- dren that the distribution method chosen following their dence and its furnishings are to pass to the decedent’s chil- deaths will be designed to maximize family harmony, the dren, the default provision in the testamentary instrument parent’s most important estate planning goal, while avoiding should normally provide for the disposition of household any significant monetary disparities among children in their furniture and furnishings to the surviving spouse, with the disposition. Children should be advised such method is thus remaining items going to children, typically in as equal shares designed to encourage preferences based solely on an item’s as practically possible. This avoids children and a stepparent sentimental or personal use value rather than its actual value. engaging in divisive arguments over the ownership of the par- To that end, children would be further advised that any sub- ent and stepparent as to the typically numerous tangible per- stantial inequality in the value of personal items of signifi- sonal property items in and about the personal residence that cant value they select and which are left to them on the List, are in such categories. In that situation, the parent should en- or which are otherwise distributed to them following their sure the List directs the disposition of any items that the par- death, are subject to a possible value adjustment to the extent ent desires to pass to a surviving spouse or to their children in their value is over a relatively modest amount, affecting their the event such items would have passed otherwise under the share of the remaining assets in their estate. foregoing provisions of the testamentary instrument if not on Each child would then be instructed to prepare a list of the List. items they would like to receive following the parent’s death, Unfortunately, Personal Effects Lists sometimes have a hab- listing them in order of their preference. Children would be it of coincidentally “disappearing” when kept in an insecure informed that in preparing the List, the parent would con-
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sider both the priority placed on items by mutually interested In all such processes, it could be provided that a minor children and the overall number and priority of requested child could be represented in such distribution process by the items of each child. Further, children would be informed that trustee of any sub-trust created under the instrument for such also for family harmony reasons, their submitted preference minor child, or if none, the guardian appointed under the lists would not be shared by them with their siblings, nor instrument for such child, irrespective of whether such ap- would the List be disclosed to any child prior to their death. pointment had then judicially occurred. This also would avoid any possibility, however perceived to be remote, of any child attempting to persuade them to make Initial Procedure Regarding Substantive Items changes to the List, seek current distribution of any items, or As an initial procedure, following the death of the parent object to their disposition to a sibling. it would be advisable for the financial fiduciary to seek a list The List would then indicate whether any items distrib- from each child with respect to any remaining property of the uted under the List are, or are not, to be subject to any such parent not on the List that the fiduciary has determined has value adjustment. In order to preserve confidentiality, the List a potential value in excess of a modest threshold amount (e.g. should not be stored in a place accessible to a child. Rather, as $200 or more). Such threshold amount avoids the process as noted above, it should be kept in a secure location. to all items being fully tied to economics and allows for some offset should an asset be overvalued. The fiduciary would Distribution of Remaining Tangible Personal Property inform the children preparing the list that such property, if not Disposed by List professionally valued for more than such amount, will result in such excess being offset against such child’s proportionate Unfortunately, as noted above, only a minority share of the parent’s residuary estate should such child receive of parents even prepare a Personal Effects List disposing of such asset. Consequently, pursuant to the wishes of the par- their tangible personal property. Those that do usually leave ent, they should select such item primarily on its sentimental a List that is far from comprehensive. As such, it is a requi- or personal use value, not its economic value. site that the testamentary instrument appropriately address this situation by providing a mechanism for the disposition The fiduciary would then seek a “walk through appraisal” of remaining items that is facilitative to the maintenance of by an experienced estate salesperson as to the value of all family harmony. Placing too much discretion in such disposi- such selected items by children which are over the thresh- tion method in the financial fiduciary incurs the risk of the old amount, hereinafter referenced as Substantive Items or financial fiduciary choosing a method not conducive to its Items. A professional appraiser may need to be sought for maintenance, which is particularly hazardous when a child selected unique category Substantive Items such as jewelry, is serving in such capacity. Thus, if not otherwise articulated collections, antiques and heirlooms that were not disposed of with some particularity in the testamentary instrument, it by the List. Such valuations would then be made known to would be advisable for parents to leave a precatory document, all children listing a Substantive Item, with any child who is perhaps as an attachment to the testamentary instrument, then informed of an Item’s valuation, being able to withdraw suggesting the appropriate method consistent with the nature any such child’s preference as to an Item prior to its actual of their assets, and which are not disposed of by List, with distribution. their estate planning documents. If only one child was desirous of an Item, the fiduciary The distribution procedures discussed below applicable to would distribute the Item to that child. If more than one items not on a Personal Effects List are designed in varying child desired an Item, the Items in which the children de- degrees to satisfy the predominant family harmony prereq- siring such Items would be chosen by a random sequential uisite, i.e., not providing an incentive for children to choose lottery method, with the sequence being reversed in each tangible personal property items based on their economic val- subsequent round having the same participants. Such process ue as opposed to their sentimental or personal use value. For would continue until all such Items in which a child had ex- should a child in such process end up being in receipt of per- hibited a preferential interest were distributed. sonal property items having a value significantly greater than The overall differential among children in the value of Items such child’s share, the parent’s overall intended proportions of each child received in the process over the threshold amount their estate passing to children will be skewed. Even more im- of each such Item would then be an advancement as to each portantly, it can result in significant family disharmony not respective child’s share of the residuary estate. All remain- only as a result of any significant resultant economic dispar- ing personal property items would be distributed between or ity, but by placing children in competition for the more valu- among children under one of the procedures below without able items in the process, thereby fostering resentment when having any advancement aspect, excepting a Substantive Item a sibling chooses items perceived by other siblings to be based in which no child received under the foregoing preference strictly on their economic value. procedure.
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Distribution by Agreement of Children At first blush, it would appear reasonable and consistent with most parental desires for the testamentary instrument to give children a reasonable amount of time, say ninety days following a parent’s death, to agree among themselves on the disposition of remaining tangible personal property items for which any child has an interest. Such approach is quite com- mon and the period for its expiration need not extend beyond the expiration of the time period delineated in the testamen- tary instrument for the List to be located or be of no force or effect, say 90 days. In the event the distribution of items in which children have an interest cannot be agreed upon, such items would then be distributed among children under one of the remaining methods below. However, this procedure normally should not be authorized if there is a minor child falls, principally because it pits children against each other not represented by another party as noted above so as to be in the bidding process. Children having to bid beyond the unable to have sufficient maturity to meaningfully participate market value of an item to secure an item may resent other in this procedure. children who drove up the bidding price. Children who were outbid by other children may resent other children to whom However, clients should be counseled at the outset by the items were lost in the bidding process. It can also have the fiduciary that such authorization for agreement by children is possible deleterious consequence of a high-bidding stranger fraught with a high risk of contentious arguments in seeking walking away with family heirlooms, notwithstanding the an agreeable resolution, with each child often having a sub- benefit of the proceeds passing to children. Thus, the eco- jective reason for receipt of individual items (e.g., “I gave it to nomic equality of a public auction must be balanced against Mom and I should get it back,” “Mom promised it to me,” or the not insignificant risk of family disharmony and poten- “Mom already gave it to me”). Moreover, a family harmony tial distribution of family significant assets to strangers in the enhancing request which normally should be made by the process. financial fiduciary that in-laws not be present at such discus- sions, may have the opposite effect if made by a child serving If a closed bid silent auction is held, which may or may as financial fiduciary. not have non-family invitees as well, the bids would remain sealed until all bids were in. If a child is serving as financial If the initial Substantive Item procedure was utilized, such fiduciary, unless the bids are all opened in the presence of the agreement procedure would appear to have limited efficacy. other children at the close of the auction, there can be suspi- For in that situation, there would be no remaining Substantive cions they may have been opened by the financial fiduciary Items in which a child expressed an interest and none of the prior to the financial fiduciary also making a bid. A sealed bid remaining items would be of significant economic interest. silent auction has the benefit over an open auction in avoiding Distribution by Auction confrontation in the bidding process, but it does not avoid the anxiety of children having to determine the purchase price One distribution method for the remaining tangible per- necessary to outbid siblings who may have an interest in the sonal property items would be by auction, either by public same item, as well as possible third parties who may be ad- or private bidding, or the use of “virtual money” in a private ditional invitees. Further, there still may be a high degree of auction. In a public auction, the attendees would be children resentment by children who have been outbid, particularly and the general public. Children ostensibly would be equally with respect to items of high sentimental interest to them, treated from an economic standpoint, as the proceeds would including possibly by a third-party invitee. be allocated to the residue of the estate and distributed along with other remaining assets proportionally among children as In a “virtual money” auction process, each child is given an provided in the testamentary instrument. equal amount of “virtual money” with which to bid on per- sonal property items. The use of “virtual money” in the auc- However, this may not be the substantive result. Children, tion process is even more problematic and normally should be when competing against each other and the public in the bid- avoided in comparison to the foregoing auction approaches ding process, may have paid in excess of the fair market value for several reasons. Although each child in this process is of items, thereby proportionately diminishing the share they given an equal amount of “virtual money” to use in the bid- otherwise would have received in the estate. Nor is a public ding, it creates additional tensions in children having to strat- auction procedure without significant family harmony pit- egize and compete among themselves in using their limited
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amount of allocated “money” to ensure they have enough left selecting property based on its economic value and the pos- to secure remaining wanted items, thus leading to a question- sible resultant significant disparity of the value of the tangible ing of the entire process. Moreover, although designed to put personal property items each child receives in the process. each child on an “equal monetary playing field” as opposed to an actual bidding process, there is no certain nexus between Distribution by Financial Fiduciary Pursuant to Testa- the amount of “virtual money” used in bidding and the mar- mentary Instrument Guidelines ket value of items received. Consequently, economic parity is The final distribution method is for the testamentary -in not automatically obtained regarding the value of the items strument to provide for the financial fiduciary to distribute received due to there being no auction proceeds to allocate to remaining tangible personal property items not disposed the residue. It would only have been obtained if the fiduciary by List as fairly as practically possible, and/or as equally as had the right to adjust economic differences among children possible, among children regarding their value as the fidu- in the items received having significant value as an advance- ciary determines to be fit and proper. This is a quite common ment against their shares of the residue. default provision, following a failure to of children to agree In short, even if economic parity is achieved among chil- to their distribution among themselves under the aforemen- dren regarding the proceeds of a public or private auction, tioned agreement procedure delineated in the instrument. Its the tendency of the auction process to cause anxiety among popularity is probably attributable to its simplicity, typically children, the potential inequity in substantive economic ben- being in the estate planning attorney’s standard provisions efits conferred among children by the bidding process, the with little to no discussion with clients as to their potential possible resentment of children who were outbid by siblings adverse import on family harmony or alternative strategies. or a member of the general public, and the confrontational However, from several perspectives it can be the most hazard- nature of the proceedings if an open bidding process is cho- ous to family harmony, as well as the most arbitrary, when a sen, are aspects of the auction procedure that are unavoidably child serves as family fiduciary. antithetical to the maintenance of family harmony. For the First, a child having a financial conflict of interest would foregoing reasons, the use of the “virtual money” auction pro- have to agree to the distribution of all items in the initial cedure appears to have even less to commend it. “agreement phase,” compounding the family harmony detri- Finally, if the Substantive Item initial procedure has been ments of its inclusion in the first instance. Second, such child employed, either in conjunction with a Personal Effects List is also given broad discretion as to the distribution of the re- or otherwise, there would be little efficacy in the implementa- maining items between or among such child and a sibling tion of this strategy, for all items of significant financial value or siblings, further compounding such negative aspects and in which a child has an interest would have already been dis- conflicts of interest in the process. tributed. In that event, the lottery method below would likely Conversely, in the hands of an experienced and competent be considered the more appropriate. third-party financial fiduciary, it is probably the most protec- tive of family harmony, for it removes a child totally from Distribution by Lottery having import in the final determination of the disposition Another distribution method is by lottery. A common lot- of any such items with respect to which more than one child tery method is the use of a random number selection process is desirous of receiving. Moreover, if such method follows the determining the sequence of each child choosing a desired initial Substantive Items procedure, there will be a significant tangible personal property item during every round of the amelioration of its negative aspects. Further, if the initial Sub- selection process. Under the basic application of this method, stantive Item procedure had been followed, there would be no there is typically no monetary adjustment among the chil- need for the “agreement phase” and the lottery procedure for dren for any disparity in the values of items distributed. This the rest of the items would tend to be the more appropriate. method is frequently preferred by estate planning attorneys However, independent financial fiduciaries would not be -ex and their clients due to its simplicity. However, unless the pected to welcome being burdened with this degree of discre- sequence is reversed in each subsequent round, such method tion and attendant responsibility and the discretion accorded would continue to favor the parties having the earlier prefer- the fiduciary is rife with potential disagreements among chil- ences in each subsequent round. dren as to the final distribution. For irrespective of the party Although a lottery procedure is equitable in its sequential serving as fiduciary, in the absence of a prior Substantive Item random selection, absent the implementation of the initial preference procedure, it is very difficult to divine a method of preference procedure regarding Substantive Items by the fi- distribution in most such circumstances that would result in duciary prior to the inception of the auction procedure, it property having relatively equal value being distributed be- nonetheless retains the aforementioned aspects inapposite tween or among children and at the same time balance chil- with family harmony in both not dissuading children from dren’s preferences in that regard.
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Disposition of Undistributed or Unwanted Items Electronic Duplication of Family Pictures, Recordings, Letters, Records and other Documents Following application of the foregoing procedures, it is de- sirable for the testamentary instrument to include a provision The increasing ease and efficiency of electronic reproduc- for the disposition of all remaining items. This includes the tion has reduced the importance of actual possession by chil- discretion to sell such items (e.g., at an estate sale) and distrib- dren of significant parental tangible and intangible personal ute the proceeds under the residuary clause of the instrument, property items consisting of family pictures, family video and as well as the discretion to donate items having a de minimis audio recordings, letters, personal records and other similar value to charitable institutions or dispose of them in any oth- type of instruments or property. Consequently, the testamen- er manner the financial fiduciary should deem appropriate. tary instrument should specifically authorize the financial fiduciary to electronically duplicate any such items subject Physical Distribution of Tangible Personal Property to copying and other duplication for dissemination among The testamentary instrument should also address the finan- all children who desire them, with any attendant costs being cial fiduciary’s responsibility in the delivery or storage of tan- borne by the estate. This avoids any disagreement in the bear- gible personal property items. This issue can come into play ing of such costs and mollifies potential resentment among when children who are not in the same geographic area as the children who did not receive the original item in the distribu- decedent parent, either temporarily or permanently, request tion process. that items be shipped and the subject property is of a size, Conclusion weight or value that such costs (including insurance) is sig- nificant, particularly in relation to the value of the property The death of a parent is an emotionally tumultuous event (e.g., a couch or refrigerator). Temporary absences can arise for children. The administrative task of distributing tangible when the child is currently incapable of picking up the prop- personal property items among children in such environ- erty (e.g., in military service overseas, temporarily disabled or ment is particularly problematic and delicate, involving items in ill health, or possibly even under detention) and such child of great familial interest and emotional significance to chil- requests that the child’s portion of the tangible personal prop- dren, as well as competition for their possession and owner- erty items be stored until such child is able to pick them up. ship. Most estate planning attorneys are aware of numerous The obvious issue is whether the estate is to bear the burden instances in their practice in which family relationships have of either such costs. suffered irreparable damage in this process. Correspondingly, This issue should not be left open or entirely at the discre- their clients have often had such instances in their own fami- tion of the fiduciary, for as is the case with many matters in- lies. If this quite precarious administrative task is not properly volving the administration of a parent’s estate, it can result in and comprehensively addressed by legal counsel in the estate a level of family disagreements far beyond that merited by the planning process and testamentary instruments, an enduring relatively small amount of value involved. If the financial -fi legacy of family disharmony can be left in its wake. n duciary pays such costs without authority in the testamentary instruments to charge the residuary estate share of the child directly benefiting with an advancement equal to such costs, Look for Part II of this article in the such costs would be borne by all children, often to their con- March Issue of sternation. Thus, the governing instrument normally should make it clear that the financial fiduciary is not required to pay The Journal of the Kansas Bar Association the costs for the packing, shipping, or storage of such tangible personal property items passing to children. The child receiv- ing the item would be required to either pay such costs or pick About the Author up the item within a reasonable period, say forty-five days of Timothy O’Sullivan is a partner in Foulston Siefkin being notified, or the fiduciary would be authorized to sell LLP in Wichita. He graduated from Washburn the item, including to another child, and distribute the net University School of Law in 1975 and received proceeds to the child. an LL.M. in Taxation degree from the University of Missouri-Kansas City School of Law in 1982. Regarding the disposition of tangible personal property Tim is a Past President of the KBA Real Property, items to a minor child, the testamentary instrument should Probate and Trust Section, the KBA Tax Section, provide for such items, in the discretion of the fiduciary, either and the Kansas Chapter of the National Academy to be held in any residuary trust created for such child under of Elder Law Attorneys. He has also served as an adjunct professor in estate planning at the University of Miami the instrument, by the child’s conservator, or by a custodian School of Law and the University of Missouri-Kansas City School named by the financial fiduciary under the Kansas Uniform of Law, and at Washburn University School of Law for the past 25 Transfers to Minors Act, which permits such property to be years. held until such child attains age twenty-one. K.S.A. §§38- 1706; 38-1721. [email protected] 50 The Journal of the Kansas Bar Association Intersection of Domestic, CINC, and Juvenile Offender Law, and what lawyers should advise clients about them
A Judge’s View from the Bench
by Hon. Kevin M. Smith
he best lawyers specialize. They pick a practice area cent legislative changes that impact points of intersection be- and acquire sufficient knowledge to serve clients to the tween these areas. The consequences include losing custody best of their ability. Failing to specialize can result in of children, incurring financially crippling child support ob- somethingT less than outstanding representation. The old ad- ligations, making children wards of the state, children facing age, “jack of all trades, master of none,” has merit. However, criminal charges they might otherwise have avoided, and in- some practice areas naturally bleed into others. Lawyers who fliction of long-term psychological damage on children. ignore such intersections jeopardize their clients’ interests, their professional reputations, and opportunities to take ad- Intersection of Domestic and CINC vantage of practice growth opportunities that come with an Consider a rare but not unheard of practice in domestic expanded knowledge base. court. One parent not only wants custody of the children, This article discusses three such practice areas—Domes- but to cut off the other parent from any contact. She wants to tic, Child In Need of Care (CINC), and Juvenile Offender use her children as weapons against Dad. To do so she alleges (JO)—and the points of intersection that demand that law- that he abused them. She assumes that the more outrageous yers acquire at least enough knowledge to advise clients on the allegations the better chance she has of sole custody, so she the collateral consequences of clients’ actions, as well as re- claims Dad sexually abused one or more. She miscalculated.
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Her judge makes a common sense observation. If the abuse If the court places the children with DCF and not a parent, was occurring over a period of years, where was she when it both parents will be subject to child support orders pursuant occurred? Was she complicit in allowing the abuse despite to the Kansas Child Support Guidelines.8 obvious warning signs? Is she making it up? If the judge sus- If the domestic lawyer doesn’t acquire at least a rudimen- pects that the alleging party is wrongly motivated, in addition tary knowledge of the CINC code9 and advise clients on to the psychological impact of parental alienation, there’s the what might happen to the client and the client’s children, he risk that such parent will tell the children of her unfounded is doing a disservice to the client and harming the children. allegations, thereby inflicting even more psychological dam- Conversely, if the lawyer is aware of the domestic and CINC age on the children. court’s duties under K.S.A. 23-3207, he can prepare the cli- If the domestic judge suspects the alleging party has ulte- ent for the fallout and give her a better chance of obtaining rior motives that rise to the level of abuse, he can order the custody, or at least provide DCF what it needs to place the State to file a CINC case. K.S.A. children with family to decrease the 23-3207 provides: potential harm foster care inflicts (c) Nonparental residency. If dur- on children. ing the proceedings the court deter- Practice Tips for Domestic/ mines that there is probable cause CINC Intersection to believe that the child is a child in need of care as defined by subsec- If the client has a good faith be- tions (d)(1), (d)(2), (d)(3) or (d)(11) lief that the other parent abused the of K.S.A. 2019 Supp. 38-2202, and children, she has a duty to tell the amendments thereto, or that neither court. However, even with a good parent is fit to have residency, the faith belief, the above risks can’t be court may award temporary resi- ignored. The lawyer must tell his dency of the child to a grandparent, client about these risks. He must aunt, uncle or adult sibling, or, an- also prepare the client to share her other person or agency if the court concerns so the judge believes that finds by written order that: her motivation is the children’s best interests. (1) (A) The child is likely to sustain harm if not immedi- The best way to make the client’s altruistic motivation ately removed from the home; clear is to give the judge placement options other than the client and consistent with child welfare best practices, specifi- (B) allowing the child to remain in the home is contrary to cally, relatives such as grandparents, aunts, or uncles, which the welfare of the child; or are prefered under federal guidelines. “In fact, in order for (C) immediate placement of the child is in the best interest states to receive federal payments for foster care and adoption of the child; and assistance, federal law under title IV-E of the Social Secu- (2) reasonable efforts have been made to maintain the fami- rity Act requires that they ‘consider giving preference to an ly unit and prevent the unnecessary removal of the child from adult relative over a nonrelated caregiver when determining a placement for a child, provided that the relative caregiver the child’s home or that an emergency exists which threatens 10 the safety of the child. meets all relevant state child protection standards.’” K.S.A. 38-2286(a) mandates that the court give a grandparent who The Kansas Department of Children and Families (DCF) requests custody “substantial consideration” for placement, received 73,407 reports of abuse in 20191 with just 4.2 per- and it would behoove the client to identify such grandparents cent, or 1,541 substantiated.2 Only substantiated or affirmed (even if they are parents of the child’s other parent) when al- reports result in DCF filing cases.3 But when a judge believes leging abuse. abuse is ongoing to the extent that probable cause exists to support the above elements,4 the State has no choice but to Intersection of CINC and JO file the case and remove the children from parental custody.5 There will be no investigation before the case is filed. Often, In 2015 the Kansas legislature embarked on a mission to the outcome is that the alleging parent loses custody and the reform juvenile justice by reducing the courts’ ability to incar- CINC court acquires jurisdiction over custody and support.6 cerate juveniles and keep them in the community. It did so by As frequently, the other parent gets custody only after the chil- focusing on community-based resources and evidence-based programs such as mental health and substance abuse treat- dren are in foster care for months, which inflicts further harm 11 and psychological/mental health damage on the children.7 ment via Senate Bill 367.
52 The Journal of the Kansas Bar Association intersection of domestic, CINC and juvenile offender law
For all drug offenses, misdemeanors, and felonies Levels When CINC Cases 5-10, the court cannot incarcerate pre-adjudication (before Lead to Juvenile plea or finding of guilt) unless it finds that the youth poses a Criminal Charges danger to himself, others, or others’ property, or is unlikely to Pursuant to SB 367, appear; and post-adjudication, if the court finds that the ju- as of July 1, 2019, venile has exhausted community-based resources and poses a courts can no longer danger to others or others’ property, or is unlikely to appear.12 use juvenile detention Also, the court can’t impose sanctions or incarcerate a youth facilities as secure care once he has served 45 days post-adjudication.13 placements. Secure care There is an exception to the above limitations. If the type placements are needed of offense and the juvenile’s criminal history and offense level when juveniles habitual- makes him eligible for direct commitment to a juvenile cor- ly run from their place- rectional facility, the court can so commit. This commitment ments, which places ranges from 6 months up to the juvenile’s 22.5 year with 6 them at great risk of months post-release supervision.14 harm. When a juvenile SB 367 leaches over into the CINC code in one major exhibits such behavior, way, one with repercussions for juvenile offenders and chil- the court issues an or- dren who are impacted by poor parenting by drug addicts, der to remain in place- criminal offender parents, or generally irresponsible parents. ment and any violation SB 367 generally prohibits placement of juveniles in a non- of that order results in the court placing the child in a secure 21 parental home even when parents are unable to parent due to facility for up to six months. It is the duty of DCF and its drug use, mental health issues, or otherwise.15 No judge who contractors to find a facility for the child, and there are a lim- considers the child’s best interests wants to release a juvenile ited number of facilities in Kansas, which results in waiting to such parents when he maxes out the 45-day incarceration lists for days or weeks before beds are available. Before July 1, limit. 2019, the court could authorize juvenile detention facilities as secure care placements. Now, if there isn’t a bed immediately Prior to SB 367, the court could retain jurisdiction up the available, all the judge can do is authorize a secure care place- the juvenile’s 18th birthday. There was no incarceration limit ment and hope the child doesn’t run before a bed becomes for probation violation sanctions. This enabled the court to available.22 monitor such youths and ensure that their needs were met up to the juvenile’s 18th birthday. Post 367, for most offense CINC children are victims. Many have been abused or ne- levels, once adjudicated plus 15 days, the case length caps at glected. DCF files CINC cases to protect them from such 12, 15, or 18 months notwithstanding the 45 day incarcera- abuse. These children sometimes act out. They commit petty tion limit and inability to incarcerate absent the necessary crimes, but often district and county attorneys exercise their findings.16 That is, if a juvenile is adjudicated at the age of discretion to not charge these children with such crimes given 12, the maximum length of court supervision is 18 months, the uphill battle they already face. Sadly, the unintended con- so the court loses any ability for an alternative placement at sequence of SB 367’s bar on using juvenile detention facilities 13.5 years. as secure placements is district and county attorneys charging children for petty crimes so the court can hold them indefi- What’s the alternative to releasing a 13 year old juvenile to a nitely via the “harm to self” and “unlikely to appear” find- bad parent? It is a joint staffing where DCF and the DA meet ings.23 Pre-adjudication,24 the only limit to this detention is to decide whether a CINC case should be filed. If the troubled that the court will review every 14 days.25 There is no time youth with awful parents is under 16, there’s a decent chance limit before adjudication.26 On the CINC side, the child is the staffing will recommend that a CINC case be filed, so the represented by a guardian ad litem (GAL), so the GAL must criminal defense attorney representing such a juvenile needs inform the child about these consequences.27 a basic knowledge of the CINC code to advise the youth and parents about what may happen.17 This includes awareness of Practice Tips for CINC/JO Intersection how long the privately-retained attorney will be billing cli- ents for his services in the CINC case (months if not years),18 Lawyers representing juvenile offenders must inform their the likelihood that parents will be subject to child support clients that if they don’t comply with terms and conditions of orders,19 and the possibility that the youth will be placed in probation they could be subject to a CINC case and its rami- foster care or youth residential facilities.20 fications, including being removed from the parental home and placed in foster care. Moreover, due to the conflicting roles, the lawyer cannot serve as the GAL in the CINC matter
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28 even if the client is satisfied with the lawyer’s representation. 1. See Child Protective Services (CPS) Intake Reports FY 2019 (July Conversely, the GAL in a CINC case must advise the cli- 2018 - June 2019), http://www.dcf.ks.gov/services/PPS/Documents/FY- ent that the consequences of juvenile adjudications will limit 2019DataReports/CPS/CPSintakereports_ReceivedFY19.pdf. educational and career opportunities if the juvenile doesn’t 2. See Investigative Findings FY 2019 (July 2018 - June 2019), http:// remain in placements. As with the lawyer in a JO matter, the www.dcf.ks.gov/services/PPS/Documents/FY2019DataReports/CPS/ Investigative%20Findings_FY2019.pdf. GAL must let the child know that the guardian’s role is dif- 3. Id. DCF added the classification “Affirmed” in 2016. 1585 cases ferent from the role of a JO lawyer. Thus, the GAL may not were affirmed in 2019, which is in addition to the substantiated findings. represent the client in the JO case.29 4. See K.S.A. 38-2243(f). 5. See K.S.A. 23-3207(c). Ethical Considerations for Attorneys who Fail to Obtain 6. See K.S.A. 23-2210(d). CINC custody and support orders take a Working Knowledge of Areas of Intersection, and precedence over domestic orders until the CINC case is closed. who Don’t Advise Clients about These Intersections 7. See, e.g., Eric Adler, Frequent moves don’t just harm foster kids’ emo- tions—they hurt their brains, Kansas City Star, December 15, 2019, Rule 226, 1.1 Competence, provides that, “[a] lawyer shall https://www.kansascity.com/news/special-reports/article238204784. provide competent representation to a client. Competent rep- html#storylink=cpy. 8. See K.S.A. 38-2243(j). resentation requires the legal knowledge, skill, thoroughness 9. See K.S.A. 38-2201 et seq. and preparation reasonably necessary for the representation.” 10. See Placement of Children with Relatives, www.childwelfare. Comment [8] states, “[t]o maintain the requisite knowledge gov, https://www.childwelfare.gov/pubPDFs/placement.pdf. Citing 42 U.S.C. § 671(a)(19). and skill, a lawyer should keep abreast of changes in the law 11. See http://www.kslegislature.org/li_2016/b2015_16/measures/ and its practice, including the benefits and risks associated documents/summary_sb_367_2016.pdf (summary of SB 367). with relevant technology, engage in continuing study and 12. See K.S.A. 38-2331. education, and comply with all continuing legal education 13. See K.S.A. 38-2391(h). requirements to which the lawyer is subject.” 14. See K.S.A. 38-2369. 15. See generally K.S.A. 38-2330. Thus, whatever a lawyer’s specialty among these practice 16. See generally K.S.A. 38-2391. areas, lawyers should attend CLEs on CINC (the Office of 17. See generally K.S.A. 38-2201 et seq. Judicial Administration [OJA]30 holds best practices CLEs in 18. Average overall out-of-home placement for foster children is 21.4 31 months, reintegration case plans, 10 months, and adoption case plans, every region), JO law (the Wichita Bar Association [WBA] 39 months. See Length of Stay and Reason for Ending Out of Home holds JO law CLEs annually), and domestic law (the Kansas Placement SFY2019 July 2018 - June 2019, http://www.dcf.ks.gov/ser- Bar Association [KBA]32 family law section holds CLEs an- vices/PPS/Documents/FY2019DataReports/FCAD_Summary/Length- nually and throughout the year) so they can advise clients on ofstayFY2019.pdf. 19. See K.S.A. 38-2243(j). Technically, the court has authority to or- how deep and wide their legal troubles will get if they don’t der child support in juvenile offender cases regardless of whether a CINC consider the collateral consequences of their actions. Failing case is filed, but this is seldom done. See generally K.S.A. 38-2315. this, expect disgruntled clients impacted by such lack of com- 20. See K.S.A. 38-2243(g). petence to file complaints with the disciplinary administra- 21. See generally K.S.A. 38-2260. tor. n 22. See K.S.A. 38-2260(h). 23. See generally K.S.A. 38-2331. 24. Under the juvenile justice code, adjudication happens when a judge or jury finds a juvenile guilty, or the juvenile pleads no contest or guilty to the alleged offense. See K.S.A. 38-2356. 25. See K.S.A. 38-2343(i). About the Author 26. See generally K.S.A. 38-2343. 27. See K.S.A. 38-2205(a). Hon. Kevin Mark Smith is a judge in the 18th 28. Guardian ad litems represent the child’s best interests and not Judicial District, Sedgwick County, where he necessarily the client’s desires (K.S.A. 38-2205(a)), while lawyers are currently serves in juvenile court. Judge Smith bound by the professional rules of conduct to “abide by a client’s deci- practiced law in Kansas for more than 16 years sions concerning the lawful objectives of representation.” See Rule 226, before Gov. Brownback appointed him to the Kansas Rules of Professional Conduct, 1.2 Scope of Representation. bench in Dec. 2015. He graduated cum laude 29. Id. in 1999 from Regent University School of Law 30. http://www.kscourts.org/court-administration/. where he served as Issue Planning Editor of Law 31. https://www.wichitabar.org. Review. 32. https://www.ksbar.org.
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