The Elder Law Forum

The Elder Law Forum Editor's Note: The Elder Law Forum is a public service of the University of South Dakota School of Law, an extension of the SENIOR LEGAL HOTLINE available at no cost to persons 60 and older at 605-677-6343 and mmyers@usd.edu during regular business hours. The Elder Law Forum delivers information and educational material by radio, a weekly newspaper column, and Law School research papers placed on the USD School of Law Web site. Professor Myers teaches Elder Law at the School of Law.

Death and dying: A

family's final battleground

Death and dying can be the final battleground for families that have experienced extreme dysfunction. It is not a time to avoid the cost of effective legal assistance.

"My son, at 34, is in the throes of dying from colon cancer," said his mother, who called the USD Senior Legal Helpline (1-800-747-1895; mmyers@usd. edu). The son has custody of a daughter, 11, and a son, 8.

His wife is a drug addict, who, according to the caller, substituted her daughter's urine for her own in giving samples to law enforcement. An older brother, now 13, is in juvenile detention for sexually assaulting his sister.

The dying son has a one-third interest in the family home, left to him and his two brothers two months ago upon the death of their father, who divorced their mother (the caller) three years ago. Also he has two cars, a life insurance policy, and a modest 401(k) fund, for a total estate of about $70,000.

"He wants to place what he has in a trust for the benefit of his children and not given to them until each reaches age 21. He is afraid that if his wife regains custody she will spend the inheritance on her drug-dependent lifestyle," she advised.

She said her dying son took care of his father, in the family home, during the past two years after the father sustained a series of strokes. His brothers are seeking a prompt sale of the house, valued at $100,000. The son is too sick to hand-write a holographic will.

"Is he lucid? Is he mentally competent?" I asked. She replied that he was. "Time is of the essence," I advised. "Call your lawyer, instruct him to prepare a will with a testamentary trust designating you or a trusted member of the family as the personal representative for the estate and trustee of the trust. Take along a notary."

"What about custody of the children? Their mother is still on drugs and living with a man who also does drugs. They would be better off with me. Will the court automatically place the children in their mother's custody?" she asked.

The court will act in the best interests of the children, I advised. "But if your son wants to win this final legal battle, he needs effective legal representation."

Its cost? Less than one chemotherapy session.

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