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Welcome folks!
to this Catbird seat, noon hour prime time on your weekend Saturday from the Beacon Blowtorch KXEL 1540.
100.5 FM, you can always listen live to KXEL anywhere across the world.
Your host, John Jacobson, again trumpeting the Iowa Law Talk program featuring Nicholas Cratelli, Jr.
J.D.S.
Squier.
and Joseph Piper, J.D.
Esquire of Ag and Business Legal Strategies.
Nick, of course, English barrister with offices in Des Moines, New York and London.
We are back for another episode.
It has been sultry and hot, blazing hot, a little bit of precept, though, and sometimes
dangerous precip.
What looks sometimes like a million dollar rain and ag can be a devastating million dollar bit of hail damage.
As welcome gentlemen, quite a volatile roller coaster of weather in this last week.
Joe, how you doing today?
Fantastic.
Great to hear.
They tell us that the humidity here in Iowa is higher than it is in the Amazon rainforest today.
Amazing.
And I do believe that.
On Nicroteli of Neapolitan descent, how are you holding up in this weather?
You know, so far so good.
Joe, I got a farm question for you.
Yes, sir.
Am I correct understanding that corn gives off a lot of water and that's why we have high humidity?
That's a significant part of it.
It's approximately 3,500 gallons per acre per day at this time of year.
So does this mean that
we've got a good corn crop?
Well, I think we've got the makings of a very good corn crop this year.
Corn has been out, except in the areas that have gotten a hail.
And about 20 miles north of here in Ryan, they had four and a half inch hail Friday night.
And I've seen pictures of some corn up there that's basically flat.
And it's going to be lucky to have any corn or beans at all in the areas.
We had some bad storms and there was something again this morning.
We've had a lot of very vicious windstorms and hail events in the last week.
The American farmers... So
for us city mice, when we complain about the humidity and so forth, actually we ought to stop and say, hey, this is good because it means we're going to have a great corn crop.
Is that right?
Well, that's always a good idea to have a good corn crop.
It helps the farm economy.
and a farmer would much rather have a good crop than to get checks from the government or from the cropping trucks.
Well guys, this is going to be another very informative and illuminating show.
This show is getting some great feedback.
We've actually got a few folks that are going to have a question for us here later in the show, but I want to get
Right out of the gate quickly here after this noon hour on this Saturday in August.
Nick and Joe, what are you serving up for us today?
I heard we were going to have some fun stuff and it sounds like some of it might be up my alley a little bit too.
Well, I think it's probably true, John, and that's the reason we're going to suck you in on this game.
So let me explain what happened this week, okay?
And we'll kind of set all this up, because you got to understand, folks, is that this is, as things develop, I think, well, that'd be good for the show.
And I know Joe does the same thing.
So here's my question, guys.
I want to talk about power of attorneys, TOAs, POAs, and the importance of a POA.
and the risks that one has with respect to a poet.
Now, I've always been under the impression that everybody ought to have, at the very least, a health care power of attorney, okay?
So that somebody make decisions when you're not capable of doing it and so forth.
And I do know that as a part of an estate plan,
I don't do estate planning, but when I see the litigation that comes in, I see that people have executed power of attorneys.
And I go, and I read those things, I go, why would anyone do that?
I mean, it's pretty sweeping.
So I once, the year I was president of the Bar Association, I convinced the Bar Association to get a booth out at the Iowa State Fair.
And I said, we ought to be giving these things out.
Everyone needs to have a health care power of attorney, at the very least.
And why don't we do that?
Why don't we just, you know, get the form out, have the people come over, get a notary there, do whatever you need to do, et cetera.
It was not well received.
Why?
I'm not quite sure.
I threatened to go down the aisle to the medical society.
And say, well, if you guys aren't going to do it, we'll get the medical people to do it, because it's an important thing to do, at least as I looked at it.
I want to talk today about health care power of attorneys and, importantly, plenary power of attorney.
Joe, you've got some ideas on
it.
Yeah, so if you're going to be taking your last breath, the question is, should you take your last breath, or should somebody say, pull a plug?
The person with the power of attorney can tell the doctor, hey, we're done.
Now, who do you choose for that?
And might it make a difference in an estate plan, depending upon how long you're supposed to live?
If you survive somebody by 30 days, which is what I see in a lot of wills, things are different.
And if you don't survive them by 30 days, it might say they'll be deemed to have pre-deceased.
Now, that's interesting stuff because the person has the power of attorney can figure out
that it's better for them if you live a few more days or don't live a few more days.
Are they doing the right thing by keeping you on the respirator or not?
Now, that's more than the way I've put it out.
At the same time, that stuff does happen.
But the real purpose as you start out with a durable healthcare power of attorney is if you can't make the decisions, you want somebody to make them for you that you trust, somebody you
many times it's another family member hopefully you trust and love uh otherwise what's the doctor's duty you know you're in there and now his job is keep you alive and without somebody in a position to say hey you don't have to keep him alive or it's time to let him go you're going to be a vegetable
uh what's it not going to do am i wrong on that yet isn't that the job of a doctor to keep
well it used to be i'm beginning to have some second thoughts joe i'll give you an example
What you just said makes perfect sense and that's truly what it is.
However, it's also the power to pull the plug.
So I looked around, I go, who do I want to give the power to pull the plug to?
And, you know, why would I want to do that?
And can I restrict that power?
In other words, I could say, yeah, you're going to have the power, Joe, to pull the plug on me.
However, in order for you to do it, you've got to
You've got to do four or five things in order to make sure that power works.
Right.
Years ago, we had a case where a little child was injured in an automobile accident, was in a coma, and the question came down to pulling the plug.
The mother wanted the plug pulled.
The father did not because the father, it was alleged.
underlying the word alleged folks, that once that plug got pulled and that child died, now you got a manslaughter charge for what was going on.
So there was a lot of dynamics over when the plug could be pulled.
conflicts of interest that people had who were pulling the plug and things of that nature.
It ended up going to hearing.
I wouldn't say trial, although we did have some evidence on it.
And as a result of that, I became very jaded with respect to these health care power attorneys.
I drafted up one for myself that I call the health care power attorney from hell, which basically said that if you're going to pull the plug on me, you got to comply with about six different things, including some of the precepts of I'm a Catholic, what the Catholic Church says about it.
end of life issue.
And I just felt it was important now.
Presumably that'll work.
I don't know.
But I just got really not nervous about it.
But I got a concern that just something we shouldn't be signing just willy-nilly.
And then when I was pushing this with the Bar Association, I got to thinking, well, gee, maybe they're right.
Maybe we shouldn't just be handing these things out as I was advocating at the time.
I don't know.
So I thought, well, that'd be a good topic for discussion.
You got the plenary hour of attorney.
I took the time and read the dog-gone thing.
My gosh, why would you want to sign that?
Okay, it gives somebody else the power to write your checks, to spend your money, to buy your house, to sell your house, to do everything under the sun.
Okay?
With your money.
Once you're healthy, others your money.
So that's what I think that I wanted to talk so that our people could just be aware.
Our listeners could be aware this stuff exists.
Nick, this is a great, great...
Great subject.
And Joe, a tremendous, tremendous presence on your point to talk about this.
I'll tell you, the older I get, the more my attitudes are changed about end of life.
I'd like to hang around a little bit longer than I
thought i wanted to hang around when i was 20 or 25 or 30 and i
yeah you you say that john
i do
vote of the other members
of you well i don't care they gotta keep me plugged in and pay for it they've got exhaust all my resources and and here's the deal
john that's the least of your worries
about
who's going to pay for it
okay
Hey, but you know, I'm horrified by some of the stories that I hear out of the Netherlands and Canada, to be honest.
Let's bring in, we've got some big fans to show.
Sheila Murphy, Kip Murphy listening in from Southwest Iowa.
You know, Sheila and Kip, you've provided care for aging relatives and you've been in the public arena working on different policy issues in your life.
Is there anything about these
living wills or powers of attorney that concerns you or that you might have a question or two about?
Well, yeah, first of all, what happens if there isn't one?
I mean, I think a lot of people that should have powers of attorneys of different varieties don't have them.
What occurs if there is none in existence?
Great first question out of the gate.
Great first question.
You guys want to take it?
Joe and Nick, what a wonderful question.
What happens if you don't have one?
What's the default position?
Well, there's two variants.
One is what is the age of the person who you're who is the subject of it?
In the case that I had, it was a minor.
Well, who has the authority over the minor to.
to make this decision, because there was nothing that was signed, obviously.
And we had to go to court at that point, and to get instructions and directions from the court over a guard.
As I recall, there was a guardianship that was set up, and we had to deal with that so that the guardian could be vested with the power.
to make those decisions, but that's in the case of a minor.
In the case of an adult who is non-compass menace, unconscious, or whatever it is, I suspect you have the same situation.
You got to go to court and get a guardianship.
Joe, you've dealt with these.
You've got one of those
going.
Yeah, I'm a guardian for my youngest brother right now.
I'm also his conservator, and that's actually a scary place to be.
because I've got a huge number of responsibility.
I have to make the decisions.
Where does he live?
How do we make sure he's got food on the table?
He's got everything he needs, clothing and everything else.
Then when the hospital calls and says, oh, by the way, he's going to hospital and in an ambulance because he has chest pains.
What's going to happen?
And if he has a heart attack, what's up?
Where do we go from here?
Joe, could
you explain the difference between a conservatorship and a guardianship and the kind of reports that you have to file?
I know we've changed the law on this and you, John, you get involved in this stuff too.
I don't.
So can you brief us all on what the law changes was and what the responsibility is like?
What do you have to do, Joe, in your dual capacity?
Okay.
If you're a guardian, that's to take care of the person.
So I make the decisions regarding where does he live and how do we seek health care in this instance?
He's at Medicaid.
So I have to write all fill out all the reports.
A conservatorship is dealing with the finances and the property of the person.
So the two things many times you'll have the guardian and conservative be the same person.
And they can actually be done in the same action.
So you have a guardianship, conservatorship combined.
In the situation I have, I became guardian after my parents needed to move on and stop being guardians for my brother.
And then it was only in the last about three or four years that the bank decided that I needed to become a conservator since I was dealing with the money of somebody that wasn't my money.
And so the bank said, we won't have the account unless you are also the conservator.
So we opened a conservatorship.
Now, when you open a conservatorship, you have to do an initial report saying here are all the assets of the party.
And then we go from there.
But let's go back a little bit further.
How do we get to become a guardian or how do we get to become a conservator?
You have to go to court and you have to tell the judge, yes,
John needs to become a, we used to call them war to the court.
We no longer call them that.
We call them a protected person.
And as a protected person, we have to explain to the court that this person does not have the mental capabilities to make the decisions for themselves over their care.
and where they live and other things.
So that's what you need to do to become a guardian.
In a conservator, you have to have a similar allegation, but they can't make the decisions necessary in order to protect their assets and their money so that it can be properly used to care for them.
And then there will be a Guardian Ed Lightham appointed by the court and the job of the Guardian Ed Lightham
is to be the representative of this person and say, hey, they're going to talk to that person.
They're going to then talk to the court and say, I'm an independent person who's looked at that and says, yes, judge, it makes sense that to be a guardianship started or a conservatorship start.
So before a judge will do that, somebody has to come in taking the side of the person over whom
you're seeking to have a guardianship or conservatorship started and take their place and let the court know, yes, I've interviewed this person, I've talked to them, and they do it independent.
They do not want the person that's seeking to become a conservator or a guardian.
They don't want them anywhere near the place.
They want to be as independent as they can be.
So that's how we become a guardian or a conservator.
I miss anything, John.
No, you did a brilliant elucidation of this, and I think it's something that does give trepidation to family and friends.
Do they want to be in charge of the finances?
Do they want to be in charge of custody or care of the person themselves?
Let's go back to Sheila.
Sheila, your first question out of the gate was excellent.
Do you or Kip have a question related to this, what we're just talking about now?
Would you be afraid to, or would you embrace the idea of being a guardian?
or conservator.
And Sheila, before I get that answer from you, Nick begged a response earlier on a question about the reticence of people who pick up those documents at the State Fair.
Do you think that's because of the influence of the old Irish adage, since you're an Irish girl, that you can't die if you don't have your will already drafted, so don't draft a will?
Is that how you guys still think over there in the Emerald
Isle?
No, no, we figure we can die at any moment regardless, but I think people were reticent because people are ignorant and they are afraid of what they don't know and You just talk to people out there in the street.
They know very little about these matters So I think maybe job one is a little public education here.
People don't know what their rights are and you know and think and kip had a
an interesting question
yeah kip kip come on board
during
there seem like a lot of people lost some of their control during cobit of their health issues and everything yes and created a lot of distrust and if you look at like even popular culture there's all these things about you know people selling body parts and things like that and a lot of these people don't are scared because they think
Well, if someone has control of my body, they'll do something strange with it or sell my body.
That's a great, that's a great issue.
And we won't even talk about the protocols and checks and balances involved with organ donations.
That's for another show.
But Nick and Joe, they raise good points.
How do you get the word out there?
I would shamelessly plug and say this radio show is a way we're trying to inform the public, obviously.
But also, yes, that sense of not having autonomy over ourselves, particularly since 2020 in the pandemic.
Take a whack at that, guys.
I'll go to Nick and then Joe.
But, Sean, I think there's just a lot of misinformation out there regarding what the role is.
You know, I referred to it earlier as the pull the plug.
right that's kind of you know a bad way of referring
to it but it is
what it is
yeah
you know you're giving somebody the power over your life
truly
and you know it's easy to look at that from a philosophical or an abstract position but when you
When you're about ready to say, do I really want to do this?
Do I want the plug pulled?
And we don't think about these end of life decisions.
Right.
So I'll throw it back to you, John.
In thinking about it, don't I really have to have input from the people that matter the most, the experts?
For example, I get what the doctors are saying.
I mean, the doctors are going to, you know, doctors have been trying to cure death forever and that's not,
they
can't get the job done.
So we're all going to die.
We know that.
Right.
Question is when.
Right.
So we get the medical people involved.
Well, then we get the financial people involved.
Like, well, you know, that's going to you, the longer you live, the more money it's going to cost.
And the less money you've got to live to your children.
get that, then they get the religious folks involved and go, wait a minute, life is a matter of God's decision, not yours, which is true.
So you have all of these conflicting views.
And what's a person supposed to do, John?
You are a trust officer.
You get involved in this all the time.
Well, it's enormously difficult because you have money always gets in the middle of a lot of these decisions.
Some people
benefit more from a loved one's earlier demise as opposed to a later demise.
I mean, I hate to bring back a horrid history that gives me PTSD, but the Terry Shiveau death, I mean, that just absolutely was horrifying to me.
And of course, you know, you ask questions, is there life insurance who's going to inherit the life insurance?
Does
Does the Guardian truly have the best interests of their ward at heart, or are they possibly conflicted or compromised?
From a conservatorship standpoint, there's so much discretion that if you don't go to court for every pre-approval of every discretionary use of money for a conservator, you can still
violate your fiduciary duties and almost abscond with or lay waste to assets even under the rigors of the court supervision that we've put into place in Iowa to prevent senior abuse in the last decade.
It's a sticky mark.
Let me
translate that, complete that for our listeners.
What you just said, John, is everyone's scared of being sued.
So if I spend some money
and somebody down the road doesn't like it by gosh they consume me for breach of fiduciary duty okay so which is a very serious issue
absolutely
wanted to as a result nobody wants to make a decision what they'll say is well i'm going to go to court and get the court's permission thinking that when the court says it's okay then you got blanket protection you want that layer of insurance
Yeah and you know but what if the thick of the expense of that the very reason why you have a conservator so they can make these decisions and now we're running the court you know dealing with that yeah Joe you you got both as a guardian and a conservative just tell our listeners how many reforms and reports you have to make
okay as a guardian I'm required to make an annual report to the court
As a conservator, I have to make an annual report to the court now the guardians reports going to deal with what's the health of the individual physical health mental health dental health Are they a danger to themselves?
Do I recommend that the guardianship be continued?
And if so why?
Because again people should be free of having guardianships or conservatorship So I correct that up every year.
That's actually the simpler of the two reports
It is.
The Conserver's Report is a financial one.
We start out with what were the assets, the ending assets, and what was all the income?
What did you spend every last dime to?
And what's the remainder?
Now, you have the beginning balance, all the income from Social Security or any other source that he has, and then what did you spend, and then what's left over?
And everything has the balance to the penny.
And so they're gonna, that reports in there.
Then there is a conservatorship inventory that's required every year.
Those are the reports that are required.
But now, if you have a protected person who is on Medicaid, you're gonna have some other reports in there.
You have to do a representative payee report.
In fact, I just did one this morning for my brother.
And again, what are the assets?
How much did you spend on food, clothing, and other things?
How much did you spend on recreation and other things?
They always ask me, have you been convicted of a felony in the last year?
So far, I've been able to answer no every time they've asked me that question.
But then when you think about how do I balance all of that out in the case of my brother,
He lives in an institution.
So a certain amount is assessed for every day he lives there.
So I have a check there right every month for that.
Then we have money that goes in that they keep and they spend their programs for him while he's there.
Then they have money that goes into a cash bag at the house.
So in case they want to go out.
Right.
Right.
So now, and he also has an unable account.
The able account is a account set up for people that are
so that you can put money in.
And the beauty of that one is, it doesn't count against the Medicaid.
Because if you're on Medicaid, you can only have $2,000 of liquid assets, or a couple, a magnanimous $3,000, and that number has never changed from when they started that back in, I believe, the 70s or so.
It's terrible that that was never indexed, Joe.
Terrible.
I agree, because we end up
and many in times before the IABLE account we would end up spending money on things that really weren't the best things to be spent on.
We go on trips but you take the protected person on a trip and other things that were fine but you'd actually spend things trying to get around to make sure that you never got kicked off Medicaid because for out Medicaid that means you don't have any health care protection here.
So those are
Concerns that you're having all the time is how do you make sure you're always there then?
There's another report that has to come in and the Medicaid people have a separate report that I have to do every year and then If they're the ones that will be checking at least once a year to make sure that you're down to the not above the $2,000 and they can check you spot check you at any time
Yeah, this is going to segue into another sticky wicked.
Before Kip and Sheila weigh in here, I would remind you, we're about halfway through already.
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Joe, the other thing, and I know this because I was a corporate conservator agent for a national bank that served as corporate fiduciary in conservatorships, because here's the deal.
What do you report to the judge?
a year later in the conservatorship if you're sitting on a large pile of money from an injury award.
If the stock market has gone up 30% and you had them in savings and checking accounts earning 0.2% you're going to get admonished.
If you put that in the stock market and you put it all in equities during a market crash year where it fell to the floor you're going to be admonished.
for not investing in CDs, money markets, at least FDIC insured stuff.
Sheila, would that give you pause to being a conservator handling the money and maybe thinking that maybe a national banquet, trust powers might be a safer bet?
Oh, yes, definitely.
I mean, I'd have tremendous trepidations about the stock market because of the volatility.
And, you know, the bottom line is conservatorship has got to be conservative.
It's about looking out for the interest of the person, whatever most reliable.
I'd say reliability should rule the day.
You can't take chances with somebody else's
money, period.
And Sheila, you bring up a great point because it then comes down to pragmatic prudential judgment.
So let's just say hypothetically, I think a lawyer maybe hasn't done a great job and I have a quadriplegic.
with maybe only $250,000 of corpus with a 50 year life expectancy.
Who needs a re-equipped house?
Who needs caregiving income?
Who needs a new vehicle?
And I say to myself, if I am art conservative investing, I can keep that safe, but it'll never grow.
It'll never spin off the income to even approach what I need on an annual basis for this young.
Person and yet on the other hand if I roll the dice and go for one of those 30% returns per annum But I catch a bad market my nest egg has shrunk even further Giving me even less resources to come up with the recurring annual expenses.
What's the guy to do Joe and Nick?
You're unfortunately gonna probably Be stuck spending what you have to spend to keep the person alive and they're gonna end up on Medicare and Medicaid and they're gonna be
getting whatever they can get from if they get Social Security disability, and they're going to be effectively a waterless state.
I don't like the answer, but as a fiduciary, I have to look at what's most prudent, putting it in and hoping that you're going to hit it big.
Maybe I'll buy the lottery ticket.
I mean, it's over a billion dollars right now.
But I got one in $292 million.
That's the odds of winning that thing.
Not very hot.
Shouldn't be doing that.
Or I can tell you back in the farm prices days of the 80s, when it didn't look like you can make money doing anything, we used to say, should we put $10 a week in the lottery?
It might be less gambling than farming.
You're
going to end up, whether you like it or not, in that scenario, you're going to have to do the best you can for them.
Conserve their resources for a while, but you're gonna run out.
You know that if you only got a quarter million dollars You got a quadriplegic they're gonna run that out and maybe a year or two whether you like it or not
It's the trust officer's nightmare.
We call it the Kobayashi Maru We've we've imported that from from Star Trek lore of the no-win scenario And you know, I try to think of how could we do some front-end mitigation?
And I'm always juxtaposed with the idea of what about dad or mom, not incompetent, not crossing that threshold, but cognitively not as sharp, physically frailer.
Is it important to go immediately into a guardianship conservatorship?
Or, as you guys brilliantly posited earlier, there is this role for powers of attorney.
Do you start with the power of attorney?
that then is rescinded upon incompetency, when then it's a race to the courthouse, is it?
To a guardianship conservorship, then the family's fighting over it.
How do you prevent that family fight over the temporary and permanent appointment of guardian conservator, if you've got a power of attorney set up, and then all heck breaks loose, and dad, mom have that catastrophic event, or they're adjudicated incompetent, and then the family is fighting over control of the corpus, the live corpus.
and they're fighting over the money how do you address that preemptively guys?
I'll tell you what you don't do okay you don't call mom and dad in and say by the way we're going to put you under conservatorship because the children are going to manage your money we're going to give you what you want we're going to give you no allowance and so forth okay that ain't going to happen
okay that
sounds good when you take a state and trust law in law school
Well, let me tell you folks, it don't work that way.
We've got
a better shot getting
the tarkeys away from them than getting the money.
Yep.
Okay.
So that
doesn't work.
So the easiest route to go and maybe the most dangerous heads up listeners, maybe the most dangerous is the planetary power of attorney, where you can say, okay, we're going to give Susie here your power of attorney.
Now that works well.
Susie can pay the bills, keep, you know, keep track of all of that, et cetera.
And 99% of the time that works.
But there's that 1% that the cases that I get involved.
And we're all of a sudden, you know, my gosh, dad's taking a liken to Prairie Meadows.
Because we took a look at the bank statements and we got a lot of withdrawals out at the ATM out there at Prairie Meadows.
And the brother says, yeah, there's even no one.
Yeah dad doesn't even know what a prairie meadows is.
What are you doing?
Well Susie does, you know.
But Nick, dad and mom love going out and playing the ponies.
They just recently discovered this and they get to socialize and eat dinner and they love the atmosphere.
Oh it's so much fun.
This is
what you hear.
We've had prairie meadows.
You ready for this?
We've had cryptocurrency.
Okay yeah we're just gonna go
Our prudent investment.
You can't make this up, folks.
Where a prudent investment is going to be cryptocurrency.
Now, where'd you buy it?
Okay, well, from an ATM machine currently.
Yeah, there's ATM machines out for crypto.
Seriously?
Does that pass a prudent investor rule?
Give
me
a break.
So watch these power of attorneys.
There's plenty of real ones.
That's a true blank check.
I realize I'm biased.
This is what I see.
And in 99% of the time, I guess it works really well.
But I look at my kids, John.
I love all three of them.
I got two lawyers and a doctor.
I'm going, who am I going to get to pull the plug?
Okay.
Okay.
I got my doctor daughter.
There's a plug.
Why do I have it?
Because she had a bumper sticker on her car that says Terry Shywell was murdered.
Now, okay, if Elizabeth, you know Elizabeth, if Elizabeth thinks that maybe she'll give her the plug in power.
I want Elizabeth to be mine now based on hearing that.
Dr.
on earth.
But Nick and Joe, how much part of these folks have?
For instance, Sheila and Kip, I know you've done a lot of work with seniors in helping them to vote, including at nursing homes.
Do you ever get the idea that maybe a part of attorney or a guardian or conservator or a relative may be having undue influence even on how a ballot is cast by someone of marginal competence at a nursing home, for instance?
Oh, yes.
It's not only the people who have the power of attorney, it's people who work there, or people who just come in saying they're there to provide information.
They'll come in, ballot, request forms, get the president to fill out.
They'll know when those ballots come in, and then they'll come in and offer to help fill out the ballots for the people.
Interesting.
Interesting.
That happened.
many places, not only for the elderly, but for the disabled and things like that.
And this brings another question to my mind.
The possibility of people engaging in these, being a conservator, or mostly with the financial land, having nefarious purposes, what do you do when you suspect that somebody who is a conservator
or has a plenary power of attorney is not operating in the best interest of the client.
Great question, Joe.
Take it away and then Nick.
Great question, Sheila.
Great comment prior to that, Kipper.
If you think that somebody is abusing a power of attorney, it would be if the person over whom they have the power of attorney, they can revoke the power of attorney and they could bring a lawsuit to recover
the things that have been effectively stolen.
But what if that person happens to be in Compton?
There's a power of attorney.
Who's going to bring the action to displace the person with the power of attorney?
Who's going to say, hey, maybe there's, let's say there are three kids and we figure out one of them with the power of attorney is doing things they shouldn't be doing.
Now all of a sudden you're probably going to have another one of the kids.
You're going to have to be the one that calls them out.
What I'm curious about two guys is when you have families that are riven with this cord, let's say you've got a kid who lives far away who thinks mom is just fine, and the neighbor lady who gets gifts from mom who thinks mom is just fine, and then a couple other kids that know mom is not fine.
And so there's a race to the courthouse over who gets to be
the conservator and guardian if it's deemed a conservator or guardian is needed.
How do our courts establish facts as to whether mom is out to lunch or not and whether the neighbor lady and the one kid have the best interest of the mom or whether the other kids have the best interest of the mom?
Are there helpers of the court like guardians at Lightham?
Is there specific fact finding?
How do we know that the bad brother or sister
And the evil neighbor don't get the upper hand with the court when the other kids really know mom's incompetent needs serious help.
Well, we refer to those as a trials and hell.
Absolutely.
You know what it goes on.
Everybody comes down to the court.
The poor judge sits there.
And what you end up with is, you know, a soap opera.
And the judge goes, what do I do here?
Well, that's a point of neutral.
So you'll get the guardian of the item.
Generally, it's a lawyer or someone that can protect that interest to conduct a neutral investigation and so forth.
These are terrible, terrible cases.
And by the way, they work on the judges too.
I've seen judges stress out over these things.
It's terrible.
And you can just see, I know several of them down here in Polk County that have had, when they get on that docket, you can just see it wears on the emotion.
Well, Joe, where I've seen this worse, again, it's my theory of gone with the wind and Vivian Lee grabbing the dirt saying I'll never starve again.
We'll always have terror.
Joe, it's the worst in these ag wealth situations.
It is a blood sport.
Yeah, because, you know, as we've said many times before, the hardest thing to get a farmer to do is to sell a farm.
They don't want to ever give up the dirt.
They'll
sell equipment if they need to.
They can get new equipment, but they can't get tariff from a back.
So it's a tough thing to do.
And then you've got the question, if somebody had a power of attorney, what if they mortgage the land and use that money to do whatever?
Go to the casino or go on vacation, put money in the Cayman Islands.
All of these things happen, unfortunately.
People with powers of attorney have done this a lot of times.
It's never good when it happens, but when that happens, you've got a mess.
Sometimes you can't even get the money back.
And then what do you do?
The estate's smaller than it should have been.
Mom and dad don't have the money they should have had to retire on.
And then they may end up becoming a ward of the state and end up in Medicaid or things like that.
But it's always a question of, as Nick has been known to say, follow the money.
Where did the money go?
What was the motivation of the person who was dealing with it?
If they have a power of attorney, what did they do with the money?
If they spent the money, and that's one of the reasons that I know the legislature did what they did back in 2019.
There were too many times when people that were guardians or conservators weren't filing reports, or if they did file reports, they weren't balancing out, and they weren't doing it pre-equally.
And I remember, initially, as I was a guardian, I was only required to file a report
on an annual basis.
That all changed with that reform back in 2019.
Now it's an annual basis, but I've been on Vibre reports for a while, and there were many conservatives the same way.
To go five years between looking at something, it's too long to go years probably about right, but it's important that somebody keeps an eye on it, and call it big brother, but somebody needed to keep an eye on it because of too many people, elders that were getting
ripped off
well said joe i'll bring kip and sheila in here also here in a minute because they actually helped me uh get the word out on a piece of legislation that that i really felt strongly about so strongly that i put together coalition ranging from the attorney for the aclu to one of the most liberal uh democrats in the iowa house uh to uh uh the family leader
major PR person.
Nick, you will remember this too because you gave some drafting advice on Alfie's law.
That was a situation where we tried to give parents an ability to still have some custody over the care of their child in a hospital and to not
to be able to have some sort of veto over a hospital decision to withdraw life support for that child without due process, Nick.
Well, that's right, because other people were making decisions.
And we looked at it and said, well, wait a minute, parents have got a vested interest in this.
And I guess what kind of disturbed me about that is all of a sudden parents don't count.
You know, the government's taken over the child and go, I'm out here.
You know, the basic unit of society has always been the family.
Well,
I'm not going to worry about that today, John.
So Sheila, you and Kip were around me at that time.
That really resonated with families.
They wanted to draw the line and make sure that parents had the ultimate decision making for their children hospitalized over their care.
And we saw what England did to Alfie Evans when the Pope himself offered to charter
the people playing back to Jamele Hospital in Italy where they were going to care for the child.
The child was not actively dying, and they set up a phalanx of bobbies around the hospitals.
The parents couldn't even de-admit the child from the hospital.
That really resonated with Iowans when we raised that issue, didn't it, Sheila?
Oh, yeah.
And I'll tell you, not just all Iowans.
Not to people that had children that were ill, but everyone took note of that.
It was truly a landmark bill that you had there, John.
And I think we see that it's one of the most important issues of our day, the loss of humanity, in that these children were no longer considered to be human beings.
They were game pieces.
They were tokens for power.
power of the hospital, the power of the doctor and it's so easy to lose sight of the humanity of people in all these situations and that's our job to keep track and make sure that they are considered human.
Well, I agree with that and I guess I always worry about those that don't have a voice and you know some of those trisomy
children with the abnormal condition often the trisomy 18 the trisomy 13 often they're given supposed death senses and yet we have examples of many of them living into adulthood with with trisomy and so we're just trying to make sure that everybody's got
a shot.
It's the most fundamental human desire is to that will to live.
I mean, why do people duck when they hear a loud bang?
They're trying to get away from, you know, the bullet.
Why do you swerve if you see a deer in the road or someone coming at you?
It's just that most primeval of, you know, choices, all things being equal there.
And yet, Nick and Joe, I don't want to be in the position
I will never forget it was just an oddity to me and I think it was perhaps done for political purposes but literally a couple decades ago when Prime Minister Ariel Sharon of Israel was basically flat lined cognitively and kept alive on machines for years to forestall an electoral crisis in Israel.
So basically the politics of that
kept him on artificial life support for years.
It's hard to believe all the manifestations that impact these decisions, isn't it?
That's true.
I'd forgotten about that one, but yeah, they can affect international politics dramatically, especially in a country like Israel, if you have a parliamentary crisis.
Who will that be in charge?
And we had some Soviet leaders on life support for bad colds for quite a long time in succession from Brezhnev, Trenenko to Andropov.
And so not to make a light, but it literally has geopolitical ramifications at time such that even today
with the current Iran situation.
We don't know.
We've really not seen proof of life of the successor Ayatollah or his condition.
Even the Iranian president has said it's extremely difficult to communicate.
So the law touches on so many of these issues in conjunction with medicine.
Well, it's time for final arguments, guys.
First of all, I'm going to give Kip
and she'll a chance of the final argument you see the value of this kind of radio is a public service uh... effort don't you she'll in kip
absolutely i think we touched on it before the ignorance of the people people just need to know if they understand what's involved to be a lot more likely to participate in a beneficial way
yes and it's very important but i want to hear final argument when should people
get like at least a medical power of attorney.
Should they do that when they're like when they first reach adulthood?
It's a great question, Kip.
We'll have you guys go into final arguments here.
I'll start this time with Messer Cratelli and then give Joe the final word.
Nick, have at it.
Okay, I think that's a very good question, Kip.
And I think the answer is yes, as soon as they get into adulthood.
And definitely by the time they married and have family.
The family needs the comfort to know that these arrangements have been made.
They know what the process is when they have to use it.
And all I'm saying is that they're not routine.
My concern is, is that, you know, you go check into a clinic or whatever it is in here, you don't have a healthcare poet will sign this.
I want you to think about what it is you're doing and make sure that
that this is what you want to do and that you have chosen the right person or persons.
It doesn't have to be one person.
It can be multiple people that have to agree.
So you keep in mind probably it will be the most important decision of your life who you're going to give the power of your life
to.
stalwart words from Nick Cratelli.
Joe Piper, I'm going to give you the final, final word.
I just want to pre-dose it though with this.
You are taking care of a special needs loved one.
Many of us have special need, loved ones, that when my wife and I are gone, we're very worried about how they will do in our absence.
How do we address that issue?
This all comes part of this, doesn't it?
It certainly does.
I'm going to go back to when should you have the health care power training.
And it came to me approximately a month ago because my niece has her son going off to college.
And she thought about it and said, what about this?
Do I need a
health care power of attorney, because I know that now that he's turning 18, the doctors will tell me a damn thing.
And if he needs help, who's going to make those decisions for him?
So we put together the things that needed to be put together.
And she said, then she wanted to know, what about financial stuff?
What happens if he can't do things?
So we talked about it.
And she said, how come this isn't something that is in the packet?
for beginning college freshmen or in the packet when you graduate from high school.
Hey, you're coming of age, something's going to happen.
Your parents can't handle this anymore alone unless you sign that over to them.
Now, if you don't have good relations with your parents, they're not the right people to do it.
Is there somebody you trust to make those decisions?
Now, let's flip to what you said here, John, and that was when you've got special needs people.
When you've got special needs people, if you're going to have
assets that can be put together.
You can set them up in special needs trusts and other things that will keep them away from the government that can provide care and or the special needs person and you need to get to an elder attorney or as you know thought being somebody that specializes in this.
You need, you don't just, I wouldn't want to try writing one of those.
I don't do that type of law, but you need to get somebody that's first in that type of law to set it up properly.
And then you can also put money aside in my ABLE accounts.
And the ABLE accounts are the ones that allow people that are disabled to have accounts that they can use for their pleasure and other things.
And then if they are on Medicare or Medicaid, then when their life is over, whatever is in that account is going to go to the city.
The other thing you need to be thinking about here is what about pre-planning your funeral and having a prepaid funeral service and other things to take care of your body once it's no longer breathing.
It's just so such great points here and I'm just reminded of some of the poignant reflections I've seen 95-year-old William Shatner comment about he's worried about death and it is a primal
Concerned not that everybody has a fear of it, but I guess I'm best categorized by saying I'm not afraid to death.
I just don't want to be around when it happens to me But be that as it is We all have friends and I know Sheila and Kip are thinking of a friend we have in common an adult male who's very functional but needs help and his Octogenarian mother passed recently he hasn't
a father who is now 90 years old, and the cousins and the rest of the family are making sure that he's provided for us.
So don't put those on the back burner, guys.
Put those on the front burner, those issues.
Get those squared away.
Even if you're not rich, you're going to have life insurance if you've got a son or daughter who cannot competently administer finances.
put it in a trust for them so that that money is meted out in a non-spent thrift way to where there's always a roof over that child's head long after you're gone.
So we're gone for a while, but we're going to be back.
because we're going to have you listen again same bat time same bat channel noon on kxl next saturday in the meantime grab the awesome podcast get on your browser type in isla law talk kxl it will program and pull it up for you or go directly to kxl.com
Click on their podcast tab and you'll see the whole ret new of programs.
Click on any one of the Iowa law talks.
And we appreciate the questions that Kip and Sheila have sent in.
Be like Kip and Sheila, send us some of your questions and you can go directly to Iowa Law Talk.
at kxl.com.
If you're too shy to come on air, just type up your question in anonymity and we'll address the questions that you have.
It's been so great to be with you again today with the two greatest lawyers I know in the great Hawkeye Cyclone Bulldog and Panther State, Nicholas Cratelli.
Jr.
Esquire with offices in Des Moines, New York and London as the first American in 150 years to become an English barrister and be so honored and feted.
Along with Ag and Business Legal Strategy Senior Partner Joe Piper, J.D.
Esquire, Ag Law, just he's the ultimate Ag Law fellow that I just he's got just a treasure trove and an institutional memory.
that goes back generations in Iowa.
These two denizens of wisdom are tremendous assets to our bar and to our profession, and they will be back with us next week.
Until we meet again, be safe, be smart, be good, be strong, stay cool, hydrate, don't overexert, continue to celebrate the anniversary of this great nation.
and always thankful to the blessings of divine providence for allowing Iowa to feed the world.
Remember, it was the Wallises and the Hoover's and the Eisenhower's who helped to thwart two global famines.
So guys, Iowa was the next point.
And my goodness, the food prize in Iowa
and all the other great Iowans who did so much to improve our food supply.
It's really great to be in Iowan.
Until we meet again, God bless America and bye-bye.