Judges Who Broadcast Their Imprudent and Injudicious Behavior

Type “judges behaving badly” into Google, and you will get over 400,000 hits. There is one story after another about judges acting injudiciously, sometimes criminally. For example, the state of Oklahoma convicted one state judge of exposing himself while presiding over jury trials. He used a penis pump under his robes. His former court reporter testified that she saw him expose himself at least 15 times during a two-year period. In a murder case, the jurors asked the judge about the whooshing sound under his desk. He said he had not heard it. He later said that a fishing buddy gave him the pump as a joke. “It wasn’t something I was hiding.”

When state judges act injudiciously, state judicial discipline is available. The state remedies include the state publicly reprimanding the judge, or suspending him or her without pay for a period, and even removing him or her from the bench. In addition, in many states, the people vote for their judges, so that periodic elections can remove embarrassments.

No so for federal judges. Their lifetime tenure and salary protection make them immune from effective discipline, although Congress can impeach for serious offenses—a rarely used remedy, unless the federal government convicts the judge of a felony. Even then, the judge remains a judge and collects his salary, while serving time in prison, until the House impeaches, and the Senate removes the federal judge.

The framers of our Constitution gave federal judges lifetime tenure and salary protection to to make judges independent, not to authorize them to act with gay abandon. Some judges do not understand that, when they ascend to the bench, they are supposed to leave their politics behind.

Let us consider District Judge Richard Kopf of the District of Nebraska. He wrote a blog he calls, Hercules and the Umpire. In Burwell v. Hobby Lobby Stores, Inc. (2014), the Supreme Court held that a regulation of Health and Human Services could not force Hobby Lobby to pay for abortifacients to give to its employees. Congress could pay for the abortifacients if it chose to do so.

There would be no constitutional problem with that. Indeed, Congress could distribute free abortifacients on vending machines each street corner, but Congress (actually, in this case, the Secretary of HHS) could not force one private party to pay for another’s abortion. That violated a federal statute directly on point. The decision protected the religious liberties of the employer.

Judge Kopf published his analysis of this decision in is blog. It was pithy: “As the kids say, it is time for the Court to stfu.” Where he prints “stfu,” he added a hyperlink to the Urban Dictionary, helpfully explaining to the reader what “stfu” means. All in all, for that one posting, one sees the term “stfu” 64 times. Kopf says that the majority decided as they did because they are Catholics. Kopf, by the way, compares his own legal analysis to that of the late Professor Alexander Bickel of Yale, whose writing is more eloquent.

Judge Kopf’s blog gave him 15 minutes of fame in the popular press, with an article in the Huffington Post and a few other places about his language. Not content with just 15 minutes, he later decided to attack Senator Cruz. On July 6, 2015, Judge Kopf told us, “Senator Ted Cruz is not fit to be President.” I hold no brief for Senator Cruz; I do wonder, however, why federal judges (who are supposed to leave their politics behind when they assume the bench) would signify their disapproval, rebuke, or endorsement of any presidential candidate.

If Judge Kopf wondered whether it was ethically proper to give his official seal of approval or disapproval to a presidential candidate, he was not cast adrift with no navigational aids. The Administrative Office of the U.S. Courts publishes is Code of Conduct for U.S. Judges. The very first sentence provides, “Federal judges must abide by the Code of Conduct for United States Judges, a set of ethical principles and guidelines adopted by the Judicial Conference of the United States.”

The title of Canon 5 provides, in bold letters no less, “A Judge Should Refrain from Political Activity.” Canon 5A(2) states and a judge should not “make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office.” [Emphasis added] That sentence is not difficult to understand. The Administrative Conference also provides ethics opinions to explain further what is not permitted. The Committee on Codes of Conduct Advisory Opinion No. 19 (June 2009) explains that Canon 5A(2) is so strict that the judge should resign membership in a political club advocating and maintaining the principles of any political party even though the judge does not actively participate in the club.

In case one wonders what about Senator Cruz so irked Judge Kopf to proclaim his public opposition to Cruz’s candidacy, Kopf—who concedes that he should not be handing out such pronouncements—tells us in no uncertain terms:

As a federal judge, I am duty bound not to play politics. However, when a politician makes an extreme proposal [emphasis added] to amend the Constitution and fundamentally alter and harm the federal judiciary and the Supreme Court, I have the right as a federal judge, and dare I say the duty, to respond to the proposal. Senator, and Presidential candidate, Ted Cruz has recently stated,

I am proposing an amendment to the United States Constitution that would subject the justices of the Supreme Court to periodic judicial-retention elections. Every justice, beginning with the second national election after his or her appointment, will answer to the American people and the states in a retention election every eight years. Those justices deemed unfit for retention by both a majority of the American people as a whole and by majorities of the electorates in at least half of the 50 states will be removed from office and disqualified from future service on the Court.

Because Cruz “is serious” about this “extreme proposal,” Cruz “is demonstrably unfit to become President.” Judge Kopf actually claims that he “did not label Senator Cruz unfit to serve in order to oppose his candidacy”; Kopf could have fooled me. I thought that if you say that Cruz is not fit to become President that means that you oppose his election to that office. No, says Judge Kopf, who claims he made his statement “rather to demolish [sic] and protect us all from his intemperate legal attacks on the Supreme Court.”  (Continue Reading)

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Judges Who Broadcast Their Imprudent and Injudicious Behavior

Elder Exploitation Lessons Learned

RENO, NV - We’ve all heard about elder abuse, but what about elder exploitation? That’s where a family member, acquaintance, or professional takes advantage of a senior’s finances. It’s becoming a big problem as our senior population grows. Sometime such crimes can even happen under the most controlled environments—under the watchful eye of the courts.

By all accounts Angela Dottei was a responsible person. A former employee with Washoe county as a legal guardian, she was authorized by the family court to administrate the estates of seniors who could no longer take care of their own affairs.

Legal guardianship is a serious matter, as it takes all legal rights away from the ward.

“We are rendering that wonderful member of our community civily impotent. That person no longer has the ability to transact for herself financially, make medical decisions for herself, even vote,” says Washoe County Chief Judge David Hardy.

Hardy was presiding in the family court when Dottie was appointed as a guardian. When there is no family member or intimate available or capable of becoming a legal guardian, a judge may hand the task over to a county guardian trained in such matters. Dottei was even certified.

She later decided to become a private guardian and set up a business called Assurity Guardian Services on Terminal Way.

As a private guardian she was tasked with the same responsibilities and received payment for her services through the ward's estate. As a requirement, legal guardians file financial reports annually with the court to show where the ward's finances are going. But back in 2007 the family court was alerted Dottei's financial reports had unexplained transactions.

As it turned out she was using the money to gamble, and according to a grand jury indictment, she failed to alert the authorities to her ward who had died, yet she continued to spend the estate's money.

“Addictions, some mental health issues--had these been known, that person probably wouldn't have been appointed, and had a career as a private professional guardian,” says Hardy
Dottei was sentenced to six to 20 years on five counts of embezzlement of the elderly. But her case was a wakeup call the Washoe family court.

Judge Hardy says in family court, there is one judge who oversees all legal guardianships. A Washoe County Legal services representative is assigned to the ward during court proceedings, with the legal guardian also in attendance. And no longer can a guardian freely take funds from the ward's estate--legitimate charges or not.

“We are identifying what do you need? Is it $75,000, is it $100,000? We block the rest, it is not available,” says Hardy.

Hardy says the system is not perfect but with more intensified oversight on these cases he hopes an Angela Dottei case will be one for the history books.

The Nevada Supreme Court is now examining the legal guardianship laws and policies here in Nevada. A committee with all parties represented has been set up. A second of six committees meetings took place Monday August 17th in Carson City.

In the end recommendations could be made for new court policies statewide or proposed laws.

KOLO 8 News Now's Terri Russell has been appointed to that committee and will keep us updated on the committee’s progress.

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Elder Exploitation Lessons Learned

Employee At Brighton Beach Nursing Center Arrested For Beating 82-Year-Old Dementia Patient

Shore View Nursing and Rehabilitation Center in Brighton Beach. (Photo via Google Maps)

An employee at a Brighton Beach nursing center has been arrested for abusing and mistreating an 82-year-old resident, who suffers from dementia and is unable to care for himself, Attorney General Eric Schneiderman announced Thursday.

According to prosecutors, Certified Nurse Aide Mina Maxine Gayle-Campbell repeatedly struck the elderly man and threw water at his face and body while administering a bed bath on April 29 at the Shore View Nursing and Rehabilitation Center in Brighton Beach. She also allegedly used the man’s own fist to hit him in the face. The abuse was caught on video, according to a press release from the attorney general’s office.

“When families make the difficult decision to place the care of their loved ones in the hands of a nursing home, they expect them to be treated with compassion and respect—not abused and mistreated,” Schneiderman said in the press release. “My office will continue to prosecute anyone who abuses and mistreats elderly and vulnerable New Yorkers in this way.”

An official at Shore view said the facility provided surveillance video of the abuse to the Attorney General’s office and reported the incident to investigators.

“We immediately reported this staff member to the New York State Attorney General’s office and terminated this employee – there is absolutely no place for employees like this at Shore View. Every employee at Shore View knows we are continually monitoring their actions and that only those employees who meet our standard of care and delivers that care with compassion, will remain an employee at Shore View,” administrator Kwang Lee in a statement.

A spokesperson from the Attorney General’s office said the case was referred to them by the Department of Health. We reached out to the Department of Health to confirm the incident was reported by staff at Shore View and have yet to receive a response.

Gayle-Campbell was arraigned in Brooklyn Criminal Court on charges of Endangering the Welfare of an Incompetent or Physically Disabled Person in the First Degree, a Class E felony, and Willful Violation of Health Laws, a misdemeanor, according to the attorney general.

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Employee At Brighton Beach Nursing Center Arrested For Beating 82-Year-Old Dementia Patient

Should doctors make end-of-life medical decisions?

The good news is that we are living longer.  The bad news is that the longer we live, the more likely it is that we will encounter significant health problems and develop an impaired decision-making capacity to make our own medical decisions.

What happens if we survive our spouse, our children, or are otherwise estranged from family who may be able to make medical decisions for us?

As the number of incapacitated people increases, professional guardians are becoming more common.  These surrogate decision makers are appointed by a judge and often have no preexisting relationship with the patient.

But the relationship may not always work out well for the patient.  Guardians are often reluctant to limit the level of medical care and choose the safer path of aggressive care rather than become involved with potential legal issues involved with end-of-life care.

Researchers suggest in the current issue of JAMA: Internal Medicine that while doctors may be able to help, they are also placed in a difficult position.

“Physicians are in a unique position to assist guardians with these difficult decisions and to collaborate with them to protect the rights and dignity of the vulnerable persons whom guardians represent,” according to the authors, led by Andrew B. Cohen, MD of the Yale School of Medicine. “However, physicians are often uncertain about whether guardians are empowered to withhold treatment and when their decisions require judicial review.”

The authors looked at guardian statutes in the United States and found a lack of consistency that creates confusion for patients, guardians and physicians.  Among their findings:

• 37 states have “no specific language about a guardian’s authority to make end-of-life decisions.”
• 8 states “prohibit a guardian from making end-of-life decisions without judicial review.”
• 5 states allow guardians to make end-of- life decisions, but each law contains separate contingencies. For example, Oregon’s statute “details specific situations in which artificial nutrition may be withheld by a guardian.”

“Our results show that laws governing professional guardians and end-of-life decisions are inconsistent and incomplete and add to the evidence that the legal approach to decision making for incapacitated persons in the United States is far from uniform,” said the authors.

It is obvious that end-of-life care and guardianship laws need to be made consistent throughout the U.S. and known throughout the medical community.  However, such uniformity is unlikely to happen any time soon.

In that case, the authors suggest as a solution to “allow treating physicians to make decisions in an incapacitated patient’s best interests when the patient’s preferences are not known by the guardian.” This is the approach used when an incapacitated patient has no identified decision maker.

However, such responsibilities may present conflicts of interest for the physician, in which case the hospital can step in and use an appointed ethics committee to make decisions.

Another approach, according to the authors, is to establish formal roles for the physician and guardian to work together. “The treating physician would suggest a plan of care in the patient’s best interests, and the guardian would ask clarifying questions, ensuring that all relevant perspectives were considered.”

End-of-life care is becoming increasingly complex with fragmented laws that must be clarified and roles specifically defined for physicians in order to provide the best possible care for an aging population.

By Brad Broker

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Should doctors make end-of-life medical decisions?

We’re still on the job and not backing down

Since the first time the Las Vegas Tribune saw the light of day, we have been on a mission to expose corruption at all levels of government. We have been known for taking on cases that no one else would dare to take on, unless they had an ulterior motive, as a benefit to someone else on a higher level of power, or as a payback favor.

From day one we have been exposing all the wrongdoings of the infamous Family Court and we like to think that within the first year we were instrumental in taking former Family Court Judge Fran Fine off the bench.

We have taken the initiative in exposing Judge Frank Sullivan’s bad behavior for taking children from their parents and trying to give them up for adoption.

We are on the record exposing all the wrongdoings of Judge Vincent Ochoa for disrespecting and abusing litigants from the bench. (We have tried and tried in every edition of this humble newspaper to (open the eyes of the voters, the residents of Clark County and the community as a whole to no avail. The system turned their back to our articles and did nothing but badmouth us, calling us anti-government radicals and anti-police radicals, as well as many other derogative names for not
bowing down to them.)

The same happened with the Public Administrator and the Public Guardian offices under the criminal administration of Jared Shafer.

While Family Court politics and corruption continue to be a shame to our judicial system, for now anyway, the seniors and all those under Jared Shafer’s spell may have a better future with the help of the new Chief Judge of the Eighth Judicial District Court, David Barker. For the last decade, this “anti-government, anti-police” newspaper (as many like to call us), Las Vegas Tribune, has been exposing the corruption of Jared Shafer and his clan of underlings. But no one wanted to upset Shafer and ignored the articles written on our pages. We all know the case of Anne Marie Gaule and all the events that took place with and against her son when two gunmen under Shafer’s domain were waiting for him inside the house. Gaule’s son killed the two intruders and was defended by this newspaper’s co-owner, the late attorney John Fadgen.

The family of Marcy DuDeck got a taste of how powerful Jared Shafer could be when they went to court to get their relative out of the hands of Shafer and told Las Vegas Tribune’s Fred Couzens what happened in our court system.

“Well, we started the proceedings and (Chief District Court) Judge (Art) Ritchie (of Clark County) called the California court and started saying that Heidi was no good and Heidi was this,” Charles related. “So when we went into court, the California courts listened to Judge Ritchie and put a temporary conservator here in California that took Heidi completely out of the loop even to the point Heidi could no longer take her mom to the doctor, she couldn’t take her to lunch, she couldn’t take her to the hairdresser, she could do absolutely nothing, no church, no nothing. This guardian named Winnie Weshler was appointed and… she told us point blank in a meeting in February… that she was going to follow the directives of Jared Shafer.”

In 2006 Fred Couzens quoted the daughter of one of Shafer’s victims as saying “…When we got to… Chancellor (Gardens) we found the conditions were filthy and Marcy said, ‘Heidi, I want to come with you to California. Please get me out of here’ even though she was placed there by… (Clark County Department of) Social Services,” Charles said.

“Marcy actually begged Heidi to take her to California… that was in September 2006. We went back again in November and Marcy didn’t look well and again she begged us and we went in front of Commissioner Norheim. (He) told us that we could submit a plan, but that he wasn’t really going to listen to it. When our attorney asked why, (Norheim) said that we weren’t residents of Nevada and therefore we really didn’t have any say in the care of Marcy.”

When casino owner Ted Binion overdosed in his Palomino Lane residence the Public Administrator was there before the police arrived or even before the family had time to get in the house.

Ted Binion had a will, had family and had a live-in girlfriend; why was the Public Administrator there? Because the Public Administrator is always following the money. There is no doubt that Chief Judge David Barker has reopened the can of worms that we had opened before and we are planning to support him all the way for the benefit of the residents of Clark County.

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We’re still on the job and not backing down

See Also:
NASGA: Marcy Dudeck, Nevada/California Victim

York County judge offered to expunge woman’s record if she’d model lingerie

HARRISBURG, Pa. –A York County Judge is facing new charges today. Attorney General Kathleen Kane says Jeffrey Scott Joy offered to expunge a woman’s criminal record and vacate her outstanding court fines if she “modeled” lingerie for him. Joy was charged last week with misdemeanor counts of official oppression, indecent assault and harassment, as well as a summary count of harassment.

Joy, 50, of 13 S. 4th St., New Freedom, was charged today with two felony counts of bribery in official and political matters. Other charges include two misdemeanor counts of harassment, as well as one misdemeanor count of official oppression.

The victim, a 39 year old woman, made a report earlier this week to the Pennsylvania State Police, the agency investigating the case. She reported that she appeared in Joy’s courtroom. She said the judge later made unsolicited visits to her home, including one instance in which she said that he offered to vacate her court fines and expunge her criminal record, according to a criminal complaint.

The woman told state police Joy offered to do this if she would “model” items of lingerie for him.

The woman said she believed this was a quid pro quo offer, the criminal complaint states.

Joy was initially charged after a different woman who appeared in his courtroom made a report to state police. The woman stated that Joy visited her apartment and allegedly groped her backside and breast and also licked her breast without her consent, state police said in a criminal complaint.

The investigation also included interviews with two additional women. One claimed Joy made inappropriate sexual comments toward her while in his courtroom. The other woman reported that Joy made multiple visits to her home after she appeared in his court.

Joy was assigned to the district court located on Fairview Court in New Freedom.

The Office of Attorney General assumed jurisdiction in the case upon receiving a conflict referral from the York County district attorney’s office. The case is being prosecuted by Deputy Attorney General Daniel J. Dye.

The Office of Attorney General and Pennsylvania State Police have reason to believe Judge Joy may have engaged in inappropriate, corrupt, or criminal contact with other citizens who appeared in his court. Anyone with information concerning Judge Joy is encouraged to contact the Pennsylvania State Police York barracks at 717-428-1011.

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York County judge offered to expunge woman’s record if she’d model lingerie

New Nursing Home Task Force Forms in Pa

WICU12 HD WSEE Erie, PA News, Sports, Weather, Events

Reports of nursing home abuse and neglect across Pennsylvania and right here in the Erie area have lead to the formation of a new state-wide task force.

On Wednesday Secretary of Health Karen Murphy announced the Nursing Home Quality Improvement Task Force.

It's after allegations of senior mistreatment at 14 nursing homes operated by Golden Senior Living.

As we reported, the Golden Living Center- Western Reserve, in Millcreek, is one of the facilities named in a lawsuit filed by Attorney General Kathleen Kane in July.

Relatives of residents there reported things like malnutrition and drug overdoses.

The new task force combines accredited experts in long term care management and members of state leadership.

They're charged with finding ways to improve care and ensure the safety of residents.

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New Nursing Home Task Force Forms in Pa

15 Best Things About Being Close With Your Grandma

1. Her cooking is the best. You've attempted her recipes, and nothing comes out quite the same. Of course when she's the one preparing the meal, she never thinks you've had enough, even though you've reached for thirds and know there's still dessert on the way.

2. She has the coolest vintage accessories. Things she wore decades ago have probably come back into style, and she gets such a kick out of seeing you wearing them. Going through her closet is fun for both of you.

3. She has actual wisdom. At this point in her life, she's experienced a lot of happiness, but also loss and grief and sadness and frustration. She knows that it's possible to get through even the times that seem completely overwhelming because she's done it herself.

4. She can always provide a confidence boost. Having a bad day at work? Go talk to Grandma. She just can't get over how smart you are. Starting to get tired of the five-year-old dress you're wearing? Show Grandma. She thinks you have the best style and always look great.

5. She has actual wisdom. At this point in her life, she's experienced a lot of happiness, but also loss and grief and sadness and frustration. She knows that it's possible to get through even the times that seem completely overwhelming because she's done it herself.

6. She reminds you that your parents weren't perfect. They may not approve of everything you do, but you know what? They weren't always angels either. Grandma can tell you stories to prove it.

7. She will take your side no matter what. In fact, she's still a little angry at that girl who was mean to you when you were 5.

8. She has the coolest vintage accessories. Things she wore decades ago have probably come back into style, and she gets such a kick out of seeing you wearing them. Going through her closet is fun for both of you.

9. Her cooking is the best. You've attempted her recipes, and nothing comes out quite the same. Of course when she's the one preparing the meal, she never thinks you've had enough, even though you've reached for thirds and know there's still dessert on the way.

10. She's a good gossip. She's so polite in most contexts, but she has no problem sitting down with you to tell you what she really thinks about people.

11. She can help you fill in the family tree. You can tell you about the cousins you had no idea existed. And she might even have pictures of your ancestors to help her detail your history.

12. She gets so excited when she hears your voice on the phone. You hardly ever call anybody these days, but you make an exception for your grandmother. You can hear her perk up the second when she realizes it's you, and she immediately wants to hear everything that's going on in your life.

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15 Best Things About Being Close With Your Grandma

Lessons Learned From The Tom Benson Competency Battle

As owner of the New Orleans Saints and Pelicans, Tom Benson, is used to being in control. He worked his way up from humble beginnings, starting as a used-car salesman, to owner of multiple car dealerships, banks, real estate, and a television station. Of course, Benson is most well-known for owning the NFL’s Saints franchise, which he purchased in 1985. Since then, he has successfully managed the Saints through the lows of Hurricane Katrina to the highs of winning the Superbowl. In 2012, Tom Benson added the NBA’s Hornets (now named the Pelicans) to his stable of businesses. Forbes estimates his net worth to be just shy of $1.9 billion. 
 
For a man with that much success and business acumen, there can be no doubt that one of the things he would enjoy least is someone suggesting he’d lost his wits. Especially when that someone is his hand-picked protégée and granddaughter, along with his daughter and grandson. And even more so when he is brought into court through a legal proceeding about whether he is competent enough to make even basic decisions about his person or property. Add in the media scrutiny that follows for a man of his stature and it is not surprising that Tom Benson is very unhappy.

After his granddaughter, Rita Benson, and her mother and brother filed the case seeking to have him declared incompetent and unable to make reasoned decisions, Tom Benson was so upset that he issued a press release expressing his “extreme disappointment“. He wrote that the legal case strengthened his resolve to fight and he instructed his attorney to “spare no effort” defending his decisions and his rights.

What decisions needed defending? Primarily, it was Tom Benson’s decision to leave control of his sports franchises and other business interests to his third-wife, Gayle Benson, instead of to his granddaughter, Rita Benson. On December 27, 2014, Benson wrote a letter to Rita, and her brother and mother, blaming them for causing family drama, informing them that he was leaving his controlling interest in the Saints and Pelicans to his wife, as well as locking them out of his businesses. These decisions directly prompted the competency lawsuit, as the three heirs claimed that Gayle controlled and unduly influenced Tom Benson, who they felt was no longer competent.

We wrote about this case shortly after it started, pointing out that one of the keys to the competency dispute would be how Benson fared in court-ordered doctor evaluations. Two of the three experts selected (one chosen by each side, with only one being neutral) testified in court that they found that Tom Benson was not vulnerable to undue influence and suffered from only mild cognitive impairment that impacted his short term memory. In other words, they felt he was competent and suffered from only limited deficits, which are not unusual for someone who is 87 years old.

Based on that and other key evidence, including the Judge’s own evaluation of Benson, the New Orleans court issued a judgment in Tom Benson’s favor and dismissing the request to have him declared incompetent. The Judge’s written opinion declared that Benson had the capacity to make reasoned decisions. The Judge was impressed with the testimony of Benson’s nurse about how he “agonized over distancing himself from his family members, cried about it, read the December 27, 2014 letter three times, and then decided to place his signature on it.”

The Judge also wrote about Benson’s mental fog that may have existed in December, due to recovering from surgeries and medications he was taking, but the Judge felt the fog was cleared by the time he interviewed Benson as part of the court proceeding. Importantly, the Judge pointed out that Benson unequivocally and definitely affirmed his prior decisions to place Gayle, not Rita, in control of his business and sports empire.

What does this mean for the larger dispute? This court decision resolved the Interdiction proceeding — which is the term that Louisiana law uses for what other states refer to as guardianship or conservatorship proceedings. This means that the Benson heirs failed to prove by clear and convincing evidence that Tom Benson was incapable of making reasoned decisions as to his person or property.

The heirs are appealing the competency ruling, arguing that Tom Benson should have been required to testify on the stand at the hearing, instead of just meeting with the Judge.  Appeals of competency determinations are rarely successful, however.

Even if the appeal fails, the ruling does not mean that Rita and the others would be unable to challenge whatever changes Benson made to his estate and succession planning at a later date, likely after he dies. Instead, that new proceeding would be subject to a lower burden of proof, which is standard in most civil lawsuits. Also, the new case would likely be decided by a jury instead of a judge. However, the court’s findings and the testimony developed in this case will make it harder for Tom Benson’s family to prevail in a later lawsuit, based on the finding that Benson affirmed his prior decisions at a time when the Judge and two psychiatrists felt he was capable of doing so.

This ruling also doesn’t end the other two lawsuits that are currently pending between the same Benson family members. Tom Benson had previously created irrevocable trusts that left some of his business interests (including the Saints and Pelicans) to Rita Benson and the other heirs, but not controlling interest. Benson now is seeking to remove those business interests and replace them with promissory notes, secured by his assets. In other words, he wants to give his three heirs cash down the road but does not want them to have any interest in his sports franchises and other businesses.

What does this mean for your family? The Tom Benson family dispute teaches two important lessons.

First, filing for guardianship or conservatorship is seldom a simple decision to make when a family member is mentally impaired but believes he or she is competent. Dementia and other forms of cognitive impairment do not come with a clear-cut dividing line between “competent” and “incompetent.” There is a large grey area in the middle, and the level of capacity can change from day to day or even moment to moment. Anyone planning to begin a proceeding like this should carefully weigh the risks of angering and alienating the elderly family member.

Second, anyone considering using an irrevocable trust as part of comprehensive estate planning should also consider the risks. As Tom Benson demonstrates, even if the trust creator changes his or her mind, an irrevocable trust cannot be changed. Sometimes there is a little wiggle room in the trust language (which is how Tom Benson can try to substitute promissory notes in place of business interests) but there is a significant loss of control. This reality should be balanced against the tax savings and other potential benefits that irrevocable trusts can offer.

If you find yourself facing either type of decision, it is important to consult with an experienced estate or probate attorney who can help balance the pros and cons and hopefully steer your family clear of an ugly court battle.

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Lessons Learned From The Tom Benson Competency Battle