The ACLU gets a bad wrap because it sues for some of the worst reasons. Take for example their most recent suit in Nebraska. A resident of Nebraska, who supports marijuana legalization, has requested a plate reading “NE 420”. The letters of course refer to Nebraska. The numbers refer to both the time 4:20 p.m. and the date April 20^th - both times associated with pot smoking.

The Nebraska DMV denied the requested license plate because 1- it promoted marijuana use, which is an illegal drug in the state; 2- Hitler was born on April 20^th, and; 3-the Columbine High School massacre in Colorado occurred on April 20^th.

Is it really that important to have the requested license plate that a lawsuit is necessary? Is it fair that the good people of Nebraska have to pay to defend the lawsuit?

Students at Live Oak High School (Morgan Hill Unified School District) were forced to remove any clothing that bore the American flag on Cinco De Mayo for fear that the articles would incite violence on campus.

Parents of the students sued claiming the policy violated the students’ free speech as guaranteed in the Constitution. The court, however, disagreed holding that the school has the right to prohibit certain free speech when it is likely to cause a substantial disruption at the school.

The issues raised are interesting: could the celebration of any other country's achievements, other than the United States, be banned as likely to cause a substantial disruption for American students? In other words,  one could reasonably argue that celebrating another country's achievement, especially where the achievement involves defeating the United States, in the United States slights the United States citizenry and is therefore likely to be a substantial disruption in schools?

What if the Vietnamese population banned together and celebrated a day of defeating the US in the Vietnam War? Is that likely to cause a substantial disruption? What if, in the wake of 911, a mosque was built at ground zero (which it is) or Muslim Garb is worn to school on 9/11? Is that likely to cause a substantial disruption? What if on July 4th, students wore Mexican flag themed shirts? Is that likely to cause a disruption?

It is legitimate to worry about student safety and implement policies to limit the chances of injury/disruption. But, doesn't it sound more like the court is weighing one's lawful exercise of a right based on how another will react? Does that seem fair? After all, Cinco De Mayo had to do with the French, not the US, right? Do you think wearing a French flag shirt would have caused the same disruption? Probably not. If not, then how much further removed is a US flag?

Noted for his concise and pithy opinions, Supreme Court Justice Oliver Wendell Holmes said it best when he said “Don’t put your trust in money. Put your money in trust.” His point is still relevant nearly 100 years later. The idea being twofold: avoid the hassles of probate AND the costs associated therewith. 

Today, trusts are the preferred vehicle for distributing an estate because they are both affordable and easy to set up.  With that said, it is important to note that a trust is only as effective as it is funded. 

What I mean by that is simply this: having a trust, in of itself, is meaningless. You must put property into the trust or else you will learn the hard way (or more correctly, your beneficiaries will learn) that probate is still necessary. 

This is because a trust can only dispose of trust property. If you have not funded your trust, then the trust has nothing to dispose of; hence your property will be distributed via probate (albeit you may have a pour-over will). 

Bottom line - If you have a trust, make sure you fund it. If you are unsure of how to do so, or even what that means, contact our office for a free consultation. We can perform a free trust review and help ensure your estate plan is effective.

Bankruptcy Judge Thomas Donovan ruled that the Defense of Marriage Act (DOMA), which restricts federal benefits like joint bankruptcy filings to marriages between heterosexual couples, violative of the Constitution’s equal protection guarantee.

This means that, at least in the Central District, homosexuals can now file a joint bankruptcy petition.

There are of course critics on both sides. On one hand, there are those that want to defend the traditional marriage. On the other, there are those that say any discrimination is wrong.

Because this matter has so much to do with emotions, religion and tradition, the often overlooked issue is the fact that the head of the DOJ, Eric Holder asked the courts to subject the law to a more rigorous constitutional analysis and informed Congress that the Justice Department would no longer defend the law. When you break that down, it means, in essence, the head of the Justice Department said he will no longer enforce a law. This is mind blowing - think about it - how does a person in charge of enforcing the law simply opt out of carrying out his job simply because he does not agree with it?

If a law is on the book - enforce it. If you don’t' like it, don't take the job or have the law removed from the books. The public is the one being hurt here. We expect officials to enforce laws. The fundamental problem here is if Holder can choose to simply not enforce this law, what about other laws?

Whether you agree with the court's decision is one thing. The debate about gay marriage will continue. But it's quite another to see the head of law enforcement state he will not enforce our laws. This kind of "above the law" mentality - pick and choose what to enforce - is what seems to be going on throughout our country and the frustrations are playing out in various protests, discontentment and bewilderment experienced by the average American.

If you want to view the case, the citation is In re Balas, 449 B.R. 567.

It is par for the course for attorneys these days to include within a client's estate plan a general or special power of attorney. A general power of attorney allows an agent the broadest powers. A special power of attorney allows an agent powers specifically granted in the special power of attorney. Often times a good estate plan will go a step further and include a durable power of attorney and/or a one for health care (which will be the subject of a future post).

The difference between a durable power of attorney and a regular general or special power of attorney, is that a durable power of attorney remains in effect even when the person granting the power of attorney becomes incapacitated.

With that said, and for the reasons discussed below, a durable power of attorney may not be enough. An illustration is the best way to explain.

Let's say John and Jane created a trust. As most person have within their trust, John and Jane have a clause that requires each of them to join in to amend or modify the trust. Additionally, and as part of their estate plan, each also granted to the other a durable power of attorney. Five years after creating their trust, John is diagnosed with Alzheimer's Disease and is therefore incapacitated.

Let's further assume that there is some sort of falling out among Jane and one or all of the kids. Or, alternatively, Jane, for whatever reason, wants to change a beneficiary designation because she wants to reward an achievement of her niece. And let's say that Jane and John typically agree and that John would have agreed to either disinheriting and/or changing the beneficiary designation.

Jane has a durable power of attorney right. So what can Jane do? Jane may be surprised that she can't do a whole lot.

According to Cal. Prob. Code 4264 (a) & (f), a power of attorney, unless expressly authorized within the power of attorney, cannot create, modify, or revoke a trust, or designate or change the designation of beneficiaries to receive any property or benefit on the principal's death (for a thorough explanation of the statute, including a variation of the above problem, see Schubert v. Reynolds, 95 Cal. App. 4th 100).

In short, the typical durable power of attorney may not be enough. Jane may very well find herself locked into what she committed years ago. The key to estate planning is accounting for not only the here and now, but also for the myriad of scenarios that may come.

I often tell my clients that, like insurance, you may not appreciate the experience of having a competent attorney guide you through your estate plan, until you use it.

By:

Robert Thompson, Esq.