Important New Case Law Confirms Protection for Vulnerable Oregonians

SYK is proud to announce financial elder abusers under ORS 124.110 cannot wipe away debts to their victims just by filing for bankruptcy.

While one would hope that would not be controversial, the previously reported cases provided too much gray area for abusers.  However, with SYK’s recent work, the Bankruptcy Appellate Panel of the Ninth Circuit held that the elements of Oregon’s financial abuse statute squarely meet the elements of the “larceny” or “embezzlement” grounds for exception to discharge of a debt under 11 U.S.C. 523(a)(4).

The case is Bryce Peltier and Kristine Diane Peltier v. Van Loo Fiduciary Services LLC, 2022 WL 4181728 (BAP No. OR-22-1000-FBGBk) (Date Filed August 16, 2022; Ordered Published September 12, 2022).

Congratulations to SYK fiduciary litigator and appellate attorney Darlene Pasieczny, who secured the original state court judgment and handled all aspects of the appeal before the BAP.   SYK bankruptcy and debtor/creditor rights attorney Jessica McConnell assisted with the adversary case filing in the bankruptcy proceedings, and was integral in helping navigate the specialized rules of that court and bankruptcy law, while fiduciary litigator Victoria Blachly assisted throughout.

Our SYK litigation team successfully preserved over $1 million of the state court financial abuse judgment in favor of our client, who is the court-appointed conservator and personal representative for the victims.

Ms. Van Loo responded to the ruling, “SYK’s help was vital.  Thank you so much for helping turn the tide in case law to protect those who have been financially victimized.’”

SYK Partner Victoria Blachly’s Work on the Uniform Law Commission

Happy 130th Birthday to the Uniform Law Commission (“ULC”)! Samuels Yoelin Kantor Fiduciary Litigation Partner Victoria Blachly is an Oregon Commissioner for the ULC.  Read our interview with Victoria about her work on the ULC.

What does the ULC do?  

The ULC “provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law.” They do not have authority to enact legislation, rather they propose legislation to states to address legal issues that cross state lines and would benefit from uniformity.  You may know them from some of their greatest hits, like the Uniform Commercial Code or the Uniform Trust Code.

How did you become involved with the ULC?  

It’s a very long story, but let me see if I can fight my litigator’s tendency to go on forever and give you the highlights.  After seeking to make the laws in Oregon better by chairing a committee with proposed legislation for access to digital assets by personal representatives, trustees and other fiduciaries, I learned the ULC  was interested in the same project, on a national level.  I became an “Observer” to the study committee and then the drafting committee, which resulted in the Fiduciary Access to Digital Assets Act. I was impressed with the diligence of the volunteers, in striving to propose new laws to help so many.  Then, when an opening became available in 2014, I submitted my name for consideration to the Governor of Oregon.  Since then, it’s been nothing but sunshine and lollipops.

What are some highlights from your work as a Commissioner?  

The first thing that comes to mind is that I am so very grateful for meeting and working with such a dedicated group of volunteers, including the rest of the Oregon delegation:  Justice Martha Lee Walters, Lane Shetterly, Joe Willis and Carl Bjerre.  Also, the annual ULC meetings are filled with other volunteer attorneys, professors and judges that take the work seriously, are very detail-oriented and raise and address complicated legal issues with the utmost of professionalism and respect for a variety of ideas and insights.  The ULC, as a non-political group, is a refreshing contrast to how some currently opt to debate legal issues.

Tell us about some issues that the ULC is currently working on.

The number of active committees and projects is too voluminous to address here, but their website has a wealth of information available. Currently I am on a Committee for updates to the Uniform Determination of Death Act. There are a large number of medical professionals, patient advocates and lay people Observers with amazing and often heartbreaking stories, who all share their perspectives.  As science has progressed and knowledge has changed, the convergence between law and science makes the topic a challenge to decipher in a way that provides good answers to often bad choices.

Too Good To Be True: Inheritance Scams

The Federal Trade Commission just posted a strong reminder on their Consumer Advice page:  If you get a letter from an alleged law firm claiming you are the beneficiary of large piles of money, to be split between the law firm, you and some charities – but you must keep it a SECRET – it is a scam.

They suggest you delete it, warn your friends and family of the scam and report it to www.ReportFraud.ftc.gov.

Then again, if you DO get a legitimate notice of a massive and unexpected inheritance, CONGRATULATIONS! – and make sure you meet with your SYK estate planners and update your plans.

This Is ALL Of Us: Musings From the End of a Television Series and The End of A Life

NBC’s “This Is Us” aired its penultimate show last night.  It is perhaps the most poignant and heart wrenching writing and acting that I have ever seen on television.  As the matriarch of the family, Rebecca Pearson, suffers with Alzheimer’s Disease and, in a way, had already left her family behind some time ago, as her memories failed her with the insidious disease.  Her final journey is then portrayed through a series of vignettes through the cars of a train, showing her family and other important people in her life, at various ages.  The thread woven through it all is love and sharing, and a good deal of open communication.  (Those Pearsons DO love to talk.)

Planning for an aging loved one’s journey is something we all need to face with compassion and courage, and the legal tools to get the right people situated for success is apparent in the show.   Take the time to talk with an elder law attorney or estate planner to make that journey less painful.

Nobody wants to plan for their final train, but leaving behind less stress for your loved ones is important.  As they said in the show, “If something makes you sad when it ends it must’ve been pretty wonderful when it was happening.”

Social Media & Child Custody

Celebrity divorces are not news and many celebrities go out of their way to keep their divorces out of the mainstream and social media.  One recent exception is the ongoing divorce of “Kimye” or Kim Kardashian and Ye (aka Kanye) West.  The “Kimye” divorce has not made the news because of the size of their multi-billion-dollar marital estate; but rather much of the recent publicity has been their dispute over their 8-year-old daughter, North’s, TikTok account.  In an interview earlier this year, Kanye said “My children [aren’t] going to be on TikTok without my permission.” North shares her TikTok account with her mother, Kim, who also manages North’s account.  To date, the California court has not made any public decisions about this issue as part of the child custody claim, but will in a final resolution if Kim and Kanye cannot settle their differences. 

The questions of whether and how a judge might consider a child’s use of social media in deciding which parent should be awarded custody of the child in a divorce are unsettled in Oregon. Meaning, there is no published opinion on how an Oregon trial judge has decided this question. 

Under Oregon statutes, Family Court judges determine which parent is awarded legal custody of a child by giving “primary consideration to the best interests and welfare of the child.”  With the role social media has come to play in the mental health and safety of youth, it is plausible that a court could factor in a parent’s approach to the child’s social media habits when determining custody. Factors likely to be considered are the child’s age, the nature of their posting, time allowed on social media, and whether there are any parental controls available. 

The main takeaway is that parents should use caution and seriously consider what is safe and reasonable, and what is crossing the line. Here are some things to consider if you find yourself seeking to resolve a custody dispute: 

  • Most social media sites, including Facebook, Instagram, TikTok, and Twitter, require users to be a minimum age of thirteen. If a social media company determines that your child is too young to interact with social media, the court may find a child under the company’s age requirements is too young to have their own account.  
  • There have been a number of recent studies on the effects of social media on youth that provide fodder for both proponents and opponents of youth accessing social media.  Studies, such as those linking social media use by teenagers to worsened perspectives of themselves, highlight the negatives. Yet other studies have shown that social media can provide LGBTQ+ teens support by being able to access information and communities that might otherwise be unavailable to them. Staying informed can benefit your understanding of your child’s interactions with social media and show a judge that you are taking your child’s welfare seriously. 
  • In March 2022, Instagram launched a new feature allowing parents to monitor their children’s time on the platform. Known as “Family Center,” the feature allows parents to track their children’s time and activity on Instagram. Family Center also allows parents to get updates on the accounts their children follow and allows parents to set time limits for their children. Using this tool could evidence you are monitoring your child’s social media presence in a responsible way.  
  • Like Kim managing North’s TikTok account, managing your child’s social media could be a safe middle ground. The “bio” section of Kim and North’s TikTok account even states that the account is “Managed by an adult.” 

You may not be a celebrity with hundreds of thousands of people clamoring to see what your celebrity children are up to, but that doesn’t mean that your child’s social media presence isn’t important. When it comes to deciding what is in the “best interest” of your children, be aware that their social media accounts could play a role in how a court perceives you as a parent in your child custody dispute. 

Oregon Appellate Court Requires that a Judge Give Specific Reasons Before Denying a Name or Gender Marker Change

City Hall - Portland Pride - Gender Choice

In 2017, the State of Oregon made it significantly easier for someone to change their name and gender marker by streamlining the process and providing statewide forms for use in every county. However, a judge may deny a change of name or gender marker if the change is not in the “public interest.” A judge in Marion County denied the change of an imprisoned woman’s name and gender marker, finding that it was “not in the public interest for [her] name and sex to be legally changed.” However, the court did not explain why it was not in the public interest seeming to rely only on the fact that she was in prison. The Oregon Court of Appeals found that the mere fact that a petitioner is incarcerated does not mean a change of name or gender marker is inconsistent with the public interest. Instead, the Court held that

[A] court may deny a petition for change of legal name or sex only where the record contains evidence that the change of legal name or sex is inconsistent with the “public interest”—that is, where the record contains evidence that change of legal name or sex is sought for some purpose harmful to the wellbeing of the general public, including, but not limited to, fraud, dishonesty, misrepresentation, evading creditors, or interfering with the rights of others.

Matter of Jondle, 317 Or. App. 303, 304 (2022). The Court of Appeals sent the case back to the trial court to make findings that the name/gender marker change was or was not in the public interest.

The State of Oregon’s forms for a name and gender marker change ask a petitioner to state whether they owe child support arrears; have a protective order, stalking order, or restraining order in effect against them; are currently on probation, parole, or under post-prison; or are required to register as a sex offender. However, answering yes to any of these questions does not mean the request to change one’s name or gender marker will be denied. These are only ways for the court to determine whether the public interest will be implicated. The Court of Appeals has now affirmed that someone cannot be denied outright without giving a reason why a denial is in the public’s interest. If you have concerns that you will be denied a name or gender marker change for one of these reasons, or another reason, you may want to enlist the help of an attorney with experience in name and gender marker changes.

In Memoriam

 

Stephen E. Kantor

May 22, 1949 – November 14, 2021

We mourn the passing, and celebrate the life, of a beloved friend and a leader of our Samuels Yoelin Kantor family.

 

 

A Power of Attorney is a Cost-Effective Legal Tool

A power of attorney (POA) is a legal document that allows another person to step into your shoes and make decisions for you when you are unable to make decisions for yourself. If you are the person creating a POA, you are known as the principal. And the person you appoint to make decisions for you, is known as the agent or attorney-in-fact.

Typically, a POA is used when the principal is unable to manage their financial and/or medical matters. And typically, this occurs when the principal is temporarily or permanently incapacitated. Incapacitated means that you are unable to make decisions for yourself or unable to effectively manage your own affairs.

POAs are used for different reasons. However, the two most common uses are to manage general financial and medical decisions. For example, an agent under a financial POA has the authority to access the principal’s bank account, sign checks, and sell property. An agent under a health care POA has the authority to make decisions about medical treatment and care.

Everyone over the age of 18 should consider nominating agents under financial and medical POAs. It doesn’t matter if you have a lot of assets, are retired, in college, or just starting out on your own. Having a financial and medical power of attorney is a cost-efficient legal tool to manage your financial and medical affairs. Nominating an agent under a POA may also avoid the cost and emotional expense of a court process, like guardianship or conservatorship.

The person you choose to be your agent will have a lot of responsibility on their shoulders. Therefore, you should carefully consider your choice. The person should be trustworthy, organized, and understand that they are to act in your best interest.

If you don’t have such a trusted person in your life, then you may want to consider a professional option such as a bank, trust company, or professional fiduciary.

During your lifetime, you may modify your POA many times. For example, a college student or young parents may nominate a parent, spouse, friend or sibling, where an older professional or retiree may choose to nominate their spouse, child, or trusted younger family member. A POA can be terminated by several different methods. A POA can be revoked by the principal if they have capacity to do so. And the death of the principal terminates the power of the agent under the POA.

Powers of attorney are necessary for all adults as a proactive planning tool and to avoid the time and expense of court proceedings, if they become necessary. However, powers of attorney should not be entered into lightly, and should be carefully considered with the help of a trusted legal professional. The attorneys at SYK have over 431 combined years of legal training and experience. We pride ourselves on providing high quality legal services to clients throughout the Portland metro area, including SW Washington.

Celebrate National Estate Planning Awareness Month

With our adoration of All Things Estate Planning, here at SYK, please take a minute to enjoy the festivities that come around this time of year for National Estate Planning Awareness Month.  What are they?  Presents?  Decorations?  Delicious food?  Feats of strength?  No such luck – just an acknowledgement that you owe it to those loved ones you leave behind to have your affairs in order.  In addition to working with excellent estate planners, to make sure you have your will or trust, power of attorney and advance directive in place, Easeenet is a local company that provides another valuable estate planning service.  They help you create a real-time password manager and provide document storage and sharing that helps you “seamlessly” transfer your online information to your next-of-kin or fiduciary.

May you live as long as you want, and never want as long as you live.

Lessons From My COVID Year (and a half)

“These are unprecedented times” – a phrase I think we’re all sick of hearing. As the unprecedented times become more precedented times, I’ve had time to reflect on some of the silver linings of this COVID cloud.  As we weather the storm together – apart, I’ve had the opportunity to shelter in place and work from home with my sister and her daughters, ages 3 and 1. In March 2020, my co-workers were highly intelligent, skilled and trained professionals. In March 2021, my co-workers were still highly intelligent, learning social and interpersonal skills, but not 100% toilet trained. My new co-workers, who are still mastering the art of the English language, the porcelain throne, and dressing for anything other than deranged princess games, are teaching me skills that hopefully will outlast these “unprecedented times.”

Naps Are Good, but Don’t Sleep On The Job

As a childless auntie observing this new toddler world while working from home, I have learned a lot from observing my nieces. When the tummies are full, the diapers are changed, and all other needs have been met, if your toddler is still fussy, you might try a nap. Naptime is crucial for the toddler (and the weary caretaker), as it usually resets the attitude button, and gives much needed respite to the caretaker. Put your toddler down for a nap too early, and it’s a battle. Put your toddler down for a nap too late, and you risk cranky attitudes and a late bedtime. If my sister has taught me anything about toddlers, naptime is magic and timing the nap is as precise a science as looking into a crystal ball.

So, what – I’m telling everyone to take a daily nap? Hmmmm… maybe! But precisely, professionals who work from home need to rest and establish good boundaries with work, especially in this work from home era. Like my sister timing naptime with the precision of a cardiac surgeon, professionals need to consistently check in with themselves, and take the time to rest and refresh when we need it. The work and home lines have blurred, and it’s harder than ever to turn off our computers, phones, etc. since the work is at home, staring us in the face. A good way to avoid burnout is taking breaks when we need it, whether it’s a midday nap (when appropriate), or a quick walk around the block.

All Work And No Play Makes Jack A Dull Boy

Before working from home, I had a highly regimented schedule, which included 10am snack, 12pm lunch, 3pm coffee snack, and dinner around 5pm. Rarely did that schedule include any “play” time, although I’d sneak away from Big Pink to shop on occasion. Now, it’s not uncommon for me to hear my toddler co-workers chant (at any time of day) “fashion show, fashion show, fashion show at lunch!” It is then expected that all occupants of the house drop what they’re doing to either observe or participate in said fashion show. My new co-workers also demand to be chased or for a rousing game of hide and seek at the drop of a hat. Play time is any time. Since engaging in brief bursts of play throughout my workday, I’ve learned that my favorite roles include “lava monster”, wicked stepmother from almost any Disney movie (also, should we talk about how stepparents are demonized?!?), and Miss Hannigan.

Taking breaks for play – especially in a highly demanding and sometimes emotionally draining field – refreshes my ability to deal with difficult matters. They allow my brain a break and the ability to disconnect personally from the problem at hand. When I come back, I am sometimes able to see the problem from a different angle or perspective. Play time can also be used to get things done – the wicked stepmother and Miss Hannigan are very effective in getting toys picked up or last bites of dinner eaten. For me, and a lot of lawyers, entering time can be a drudge, but if it’s done with a crazy hat ala fashion show at lunch, or while giving directions to your “orphans” who are also cleaning their toys, it can be more bearable.

If At First You Don’t Succeed …

Toddlers are relentless. When they want something, they want it NOW. I have never had a boss more demanding than my new co-workers. I am amazed daily at the simplicity of the tasks that they are charged with learning, like letters, dressing, and yes, toilet training, that they do not master, yet they try, try again. They embrace the learning and the challenges, with encouragement from parents, teachers, and other caretakers. As a lawyer, I have learned that we do not wake up one morning, Elle Woods style, with all the abilities, knowledge, skill, and training that we need to be excellent lawyers – *sigh* that’s why they call it the practice of law. I suspect it is this way in every field – we are born with innate talents, but the talents must be carefully honed and our skill crafted to make us great in our chosen profession. Surrounding myself with family, friends, and excellent mentorship has helped me, as a baby lawyer, try, try again, even when I wanted to throw a tantrum and quit.

My new co-workers will never replace my old co-workers, but I have learned some very valuable lessons from my sweet, funny, frustrating, and adorable nieces, who have helped shepherd me through these “unprecedented times.”

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