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Abstract:
This article discusses the complicated lawyer-client representation issues raised when a family entity (such as a family limited partnership) is created. The article also addresses the issues, and material risks, associated with the multiple representation by one lawyer of the entity, the general partner and the limited partners. Depending on state law and the entity involved, some lawyers may be surprised to learn that the creation of the entity might force them in the future to withdraw from representing everyone in the family.

family law, professional responsibility, ethics, family limited partnership, limited partnership, attorney-client relationship

Abstract:
This article was prepared in conjunction with the Thurgood Marshall School of Law March, 2009 symposium on "Emerging Issues in Estate Planning, Probate & Trust Law." The article examines a relatively new assisted reproduction technique through which the sperm of a man who has recently died is retrieved after his death, cryopreserved, and then later used by a woman (spouse, partner, or other) to produce a child. While much has been written about posthumously-conceived children (children conceived from sperm that were banked by the father while he was alive), there has to date been little examination of the ramifications of post-mortem sperm retrieval. The article explores whether children who are born through use of this technique will be entitled to their father's property or governmental benefits as the father's surviving issue. The article examines in depth the arguments in Vernoff v. Astrue, a case that is currently under consideration by the federal Court of Appeals for the Ninth Circuit. The child who is the subject of this case is reportedly the first child who was born using posthumously-retrieved sperm. Her mother has sought Social Security benefits for the child, citing numerous other cases in which the Social Security Administration or the federal courts have granted such benefits to posthumously-conceived children. The article explains how the interaction among state parentage law, state probate law, and the Social Security Act will be used by the court to make a determination in this and subsequent cases.

posthumous conception, sperm retrieval, sperm bank, social security, parentage, paternity, probate, assisted reproduction, assisted reproductive technology

Abstract:
This article is the latest in a series of articles written by this author for the Mercer Law Review Annual Survey of Georgia law. The article describes selected Georgia cases and significant Georgia legislation from the period of June 1, 2007 through May 31, 2008 that pertain to Georgia fiduciary law and estate planning. In the period covered by the article, the Georgia General Assembly enacted versions of two uniform acts - the Uniform Prudent Management of Institutional Funds Act and the Revised Uniform Anatomical Gifts Act - as well as amendments to the laws that relate to the legitimation of children born out of wedlock. These new laws are described in detail in the article. Significant legislation and court decisions relating to practice and procedure in the Georgia probate courts are also discussed. Finally, the article examines cases from Georgia's two appellate courts that outline the burden of proof in undue influences cases and clarify the way in which the statutory compensation for personal representatives and conservators is to be calculated.

georgia, Uniform Prudent Management of Institutional Funds Act, Revised Uniform Anatomical Gifts Act, wills, trusts, guardianship, fiduciaries, fiduciary, fiduciary administration, estates, undue influence, legislative survey, legitimation, probate court

Abstract:
In Anglo-American law, the concept of mental "capacity" is used to measure the degree to which an individual has the "mental ability to understand the nature and effects of one's acts" as determined by a medical or cognitive assessment of an individual's mental ability. Based on an individual's mental capacity, the law decides whether the individual had sufficient capacity to engage in the action in question. The legal concept of mental capacity, therefore, is the basis for "when a state legitimately may take action to limit an individual's rights to make decisions about his or her own person or property." Different actions require different levels of mental capacity.

The more complex the act or decision, the greater the level of capacity required; the requisite level of capacity varies with the situation. The required degree of legal capacity can be thought of as existing on a spectrum so that the legal capacity sufficient to perform certain acts may be considered insufficient to perform others. For example, the legal capacity required to make a will ("testamentary capacity") is lower than that required to enter into a valid contract. Consequently, in many jurisdictions, even though an individual has been found to lack the capacity to contract, the individual may still be found to have the requisite capacity to make a valid will.

This article discusses the levels of capacity required to undertake a variety of legal acts, including executing valid wills, trusts, gifts, powers of attorney and contracts. This article also explores a doctrine that is closely related to the determination of testamentary capacity, the doctrine of "undue influence." Undue influence lies in the shadow land between testamentary capacity and the capacity to contract and is used by probate courts to invalidate the will of an individual whose capacity level is high enough for testamentary capacity, but too low to enable the testator to resist the importuning of another.

sufficient capacity, mental capacity, competency, doctrine of undue influence, legal capacity, testamentary capacity, contractual capacity, wills, trusts, gifts, powers of attorney, autonomy, probate law