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Bar Briefs September 2006
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Bar Briefs
September 2006 • Volume 25 • Number 03

From the President
"This is Going to be a Party "
by Jacob M. Femminineo, Jr., MCBA President

Circuit Court Corner
by Keith Beasley

Elder Law
"What If My Client Receives Governmental Assistance?
A Lesson in Due Dilligence"

by Alan Polack and Michele P. Fuller

From the MCBF
"Educating the Public"
by James T. Miller, MCBF President

Feature Article
"Judge Mary McDevitt "

From the President
"This Is Going To Be A Party " by Jacob M. Femminineo, Jr.

MacombBar.org! Let me say it again! MacombBar.org!

Every new President of an organization has a plan or strategy of what they will do as President and what their legacy will be. Macombbar.org Macombbar.org

I want Macombbar.org to be the Grand Central Station for all websites in Macomb County.

I am wondering for all of you reading this on this wonderful publication we call Bar Briefs how many of you have actually been to our website. Have you read my weekly Presidential E-Letter? What is your username and password? Have you been involved in any of the forums? Have you listened to any of the podcasts?

I know that the answer to the above mentioned questions is an absolute NO!! Let me state it again. Macombbar.org MacombBar.org

Why are you continuing to read this? Go there now!! Your username is your first and last name without any spaces. Your password is mcba. This is temporary. When you login for the first time you can change your username and password.
When you go to our website you are going to see one of the most advanced bar associations web sites in the entire country. We know this because we have been to the conferences and we have gone to other association’s websites.

We as an organization must tap the resource that we have before us. The website can only be as good as it is used.

What are some of the benefits to going on line? Web forums, links to other sites, my Presidential weekly E-Letter, podcasts, member mall, member benefits and member directory. These tools are there and ready to be used.

Did you see my first Presidential E-Letter blasting the four members of the Warren City Council who voted against paying attorney fees? MacombBar.org MacombBar.org MacombBar.org MacombBar.org.

Go reset your username and password!!

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Circuit Court Corner by Keith Beasley, Court Administrator

Friend of the Court Objection Period

It recently came to our attention, via a concern expressed to the State Court Administrative Office, that the traditional objection period for Friend of the Court recommended orders has been short of the court rule requirement of 7 days. It had long been the tradition in this circuit that objections to referee recommendations made on Monday motion days had to be filed by the close of the Friday of that week, with the order to be entered the following Monday. In light of court rule MCR 3.215(E)(3)(d), the objection period has been lengthened to match the court rule. Thus, orders will normally be entered, if there is no objection, the following Tuesday. When a holiday intervenes, the time period is extended. See the computation of time rule, MCR1.108.

Requests for Child Support Orders

Chief Judge Viviano recommended that I pass on a tip in family cases regarding the information placed in requests for entry of an order establishing or modifying child support. Attorneys should always attach a worksheet providing the back-up for a request that provides the income of both parties and the supporting analysis for your request. A software program such as the Support Prognosticator is ideal. It has a worksheet you can print and attach. It is critical to have this back up information in the court file so that the comparison information is available if and when support needs to be reviewed again.

Court Opinions On-Line

We added a service to our Web page that indexes select court opinions of topical interest to the Bench and Bar. The Research Attorneys are indicating which judicial opinions may contain analysis that would be useful. There isn't room or time to place all court opinions on the Web. There is an alphabetical topic index with links to imaged copies of the actual opinions. The opinions are saved as Adobe PDF files, so you need the free Adobe reader to view them. You can access the page from our main page www.macombcountymi.gov/circuitcourt. Please let me know if you have any suggestions to improve this or other Court operations.

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Elder Law
"What if My Client Receives Governmental Assistance? A Lesson in Due Diligence"
by Alan Polack

How many of you have just settled a case with a client on governmental assistance and something at the edges of your thoughts keeps poking at you, but you’re not sure what it is. Then you remember. Don’t I have to do something to protect the benefits before I give the money to the client? Answer: Yes, you do.

What is your responsibility? Do you have to become an expert on governmental benefits, social security and Medicaid? No. Just call someone who is. You do have the obligation to make sure that you, or your expert, has fully advised the client, or their legal representative, as to the consequences of the receipt of the settlement proceeds and various options available to them, a/k/a due diligence. With the client’s permission, I provide written confirmation to the attorney for their file of the available options, the recommendation given, course of action chosen, and the next step.

If the client has capacity, is on benefits, and chooses to take the cash, do you have to give it to them? Are you committing malpractice if you do? Should you file a protective proceeding in the probate court on their behalf despite their wishes? I have, on occasion, had a client choose to receive the cash against the advise of counsel. In that event, I inform them that they have an obligation to notify the State that they have received the funds within 10 days of receipt, and have them sign a Waiver and declination of advise which is witnessed and notarized for the file so they can’t ever come back and say, “You never told me…” If you believe the client has become incapacitated and cannot make a decision on their own behalf, then you can and should petition the court for a protective proceeding. This does not include the above scenario. You may not agree with the decision or believe it is in the client’s best interests, but unless they are incapacitated, it is their right to go off benefits and try to apply once the money runs out, even though they may not receive the same level of benefits they had in the past, like subsidized housing, which can be difficult to obtain.

So, what advise do I give attorneys and their clients? The classic lawyer answer: it depends. For example, a client may receive Medicaid benefits in its various forms, including My Child and Children’s Special Health Care, and/or Supplemental Security Income (SSI). One solution is placing the funds into a Special Needs Trust. A Pooled Trust is just one kind of Special Needs Trust, but all Special Needs Trusts are created to do the same thing: protect benefit eligibility for means tested government assistance programs, such as SSI and Medicaid, and supplement the care, goods and services not provided by government programs.

What is a Pooled Special Needs Trust? Federal Law creates a specific exception for someone who is the recipient of public benefits. Trust assets placed into a Special Needs Trust will not be subject to rules that normally apply to trusts, and will not be counted as an available resource, nor will interest on the assets be counted as income. In a Pooled Special Needs Trust, there is one master trust agreement, funds are pooled for investment purposes with professional management and investment services. And, unlike a traditional bank trust department, even small amounts of money can be protected. Clients join by signing a Joinder Agreement.

What if I have a structure company involved? The structure payments are made to the Trustee. These two elements work well together, and the structure should represent the fixed portion of a diversified portfolio.

Do I need probate court approval? If your client is a minor or an incapacitated individual, yes. Pursuant to Michigan Court Rule 2.420 (B)(5), the circuit court can approve the amount being paid to the trust (including your attorney fees and costs), but the terms of the trust are the exclusive jurisdiction of the probate court and cannot be funded without probate court approval. If your client is disabled but handles their own affairs, they can sign the Joinder Agreement themselves, without probate involvement. However, you still need probate approval if they have an individual Special Needs Trust, or d(4)(A), as it is commonly known.
What’s the advantage to the client? Unlike an individual special needs trusts, a person of any age may become a member, and the individual themselves can execute the documents to become a member, as long as they have mental capacity. In the case of an elderly individual in a facility, the trust can be used to pay for incidentals and services not paid for under governmental programs, such as haircuts, podiatry, snacks, entertainment, or other personal expenses. Dignity, let alone privacy, in any institutional setting can be difficult and stressful for the resident as well as family members, and the trust can pay the differential for a private room.

In the case of a minor, the trust can pay for almost anything, as long as it is not paid for by the government, mostly shelter and health benefits. However, there are always exceptions. For instance, the trust can purchase a home, pay for a remodel, or co-pays, or doctor care that is outside of their network, lifts, chairs, etc. Estate planning can also be done within the trust, such as life insurance for the primary care giver (i.e. a parent), so the care recipient can obtain replacement services in the event of the primary care giver’s death.

One of the most frequently asked questions is regarding attendant care. Yes, a care contract can be established so that a caregiver (again, parent) is paid for their services. They can also be paid for past attendant care as long as it is documented. Documentation of these services is usually part of an injury claim and I can normally obtain this from the litigator. Yes, these payments are taxable as income to the recipient and 1099’s are issued by the Trustee.

What’s the catch? Generally, trust assets remain in the trust after the person’s death and are used to benefit other disabled individuals, and balances can be also be transferred within the trust for the benefit of a disabled spouse or disabled child in the same family. There can also be a modified payback provision where the State has an automatic lien on trust assets upon the death of the beneficiary, with the remainder being paid to the family. However, one must be mindful of building false expectations of family members, as the payback provision may result in no remaining funds after the lien is paid.
Other advantages to the use of a pooled trust is that there is a professional fiduciary who is able to navigate the ever changing rules and guidelines as to what is an appropriate distribution and avoiding any penalties or negative consequences to the beneficiary. Administering any special needs trust is a complex matter and is generally best conducted by professionals. This frees family members who have busy lives of their own to be effective advocates for their loved one’s care. In addition, the non-profit trustee can also be effective in finding creative ways to spend down the funds over the beneficiary’s lifetime.
There are several pooled trusts in Michigan, including The Pooled Trust of Michigan, which I represent. Practitioners need to examine and be aware of fee structures, cost of administration, investment practices, and use of retained funds when advising a client. Pooled trusts are, and continue to be a flexible and effective planning tool.

You don’t have to become an expert in Medicaid planning and probate. But a basic understanding of when to call in an expert is crucial to a litigator in protecting themselves against a malpractice claim years down the road, and protecting the interests of their client.

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From the MCBF
"Educating the Public "
by James T. Miller, MCBF President

Has the MCBF at last decided to employ a celebrity spokesperson (such as Mr. Schatner pictured) to impress the public and if further its’ mission?

Not now, not ever. However, those of us who watch a little television know that the aforesaid Mr. Schatner, “The Man from Uncle” and even Bill Bonds can be seen regularly speaking for personal injury firms.

Macomb County Lawyers are pretty much all aware of the overarching presence and seemingly irresistible force these advertising campaigns have. While the firms in questions have every right to their marketing, there is no doubt in my mind these ads hurt Macomb County Lawyers:

1. They represent the proposition that these firms are superior, simply based on celebrity endorsement.
2. They clearly imply that the local lawyer isn’t up to the task.
3. Their sophistication and ubiquity effectively blot out advertising in print/phone book ads.

I don’t think we should kid ourselves that this problem relates only to personal injury cases. As that work gets thinner on the ground, other areas of practice could easily become the new target. (I leave the celebrity/legal problem match-ups your imagination).

We know we are well served by our Bar Association and particularly by our competent and attentive Executive Director, Rick Troy. But who speaks for us on the street? How can the effects of these advertising campaigns be countered?
The Bar Foundation has embarked on efforts to do just that. Under the leadership of Tony Bellanca, our “Built to Last” campaign will, through member interviews, determine creative and effective ways to educate the public about Macomb County lawyers. With the help of an experienced foundation consultant we have concluded that support of Law Related Education programs and institutions will do the most good in the name of lawyers.

While it will be strenuous, we are determined to use our abilities to put the Bar Foundation “out there,” communicating to the public about who we are and what we do. I am convinced this is the best (and only) way to challenge these ads and win. What do I ask of you?

1. Look at www.macombbar.org.
2. Speak out for your colleagues amongst the public.
3. Give us your ideas, strategies or criticisms.
4. Become a Trustee, come to our meetings and help us sharpen our spears.

You know we are in a battle every day for the loyalty of the public. We can win.

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Feature Article
"Judge Mary McDevitt "

On May 25, 2006, a crow do more than 250 gathered at Roseville City Council Chambers to honor and unveil the portrait of Mary Elizabeth McDevitt, who sat as justice of the peace, municipal judge, and district judge for that community for nearly 40 years. “Judge Mary,” as she was affectionately known to many, was the first woman to serve in a judicial capacity in the County of Macomb, and the only female until 1982, when Kathleen Jansen was elected to the Macomb County Probate Bench. Judge McDevitt does not see herself as a trailblazer, pioneer, or woman’s libber. She ran for justice of the peace because she could not find a position in a law firm or in government that allowed her to use her skills as an attorney. She eventually became a part of that famous Macomb County institution commonly known as “the Good Old Boys,” whose other members embraced her as one of their own.

Judge McDevitt was born in Detroit, Michigan on May 9, 1930, second child of James E. and Mildred L. McDevitt. Her father was an attorney, who once served as village attorney before his untimely death from pneumonia when Judge McDevitt was six years old. Her mother supported the family as a public school teacher and later as principal of Pierce Elementary School in Roseville. Judge McDevitt and her siblings, James J. McDevitt and Mildred E. Wonsch grew up in Roseville, attending Sacred Heart Elementary School. Judge McDevitt later attended St. Mary’s High School in Mount Clemens, graduating in 1947 with the highest marks in her graduating class. During her years in high school, Judge McDevitt held many jobs: She was a nurse’s aid at St. Joseph Hospital East, a package-sorter at J.L. Hudson in Detroit, a waitress at the Roseville Dairy Bar, a clerk at Kroger’s and Olivier Jewelry Store, besides babysitting and typing papers to earn money.

In 1947-1948 Judge McDevitt attended the University of Detroit while working part-time as a clerk in a florist shop. In the summer she worked as a telephone operator for Michigan Bell. Unable to afford the cost of schooling, Judge McDevitt worked for one year at Central Overall Company in Detroit as a clerk, working 5.5 days a week and earning $22.00 a week. From 1949 until 1951, she attended night school at Wayne State University while working days as a typist at an abstract company and as a secretary in the law office of J. Russell LaBarge, Sr. Later in 1951 she attended day classes at Wayne State and worked at Michigan Bell in Detroit afternoons before enrolling in the Detroit College of Law. At the law school, Judge McDevitt worked in the dean’s office as a clerk, typist, and receptionist. During summer months while in law school, she worked as a temporary worker at the Roseville Clerk’s Office and the Michigan Employment Security Commission Office in Mt. Clemens. During one Christmas vacation, she worked sorting mail in the Roseville Post Office.

Judge McDevitt graduated from law school in June, 1954. She spent the summer looking for a position as an attorney, sending letters to law firms, auto companies, even to a brewery. Her letters went unanswered so she supported herself by typing at home for other people.

In the fall she got a job at Lawyer’s Title Co., checking title policies. She later found out that she was making between $50 and $100 less than the men who were doing the same job with the same background. In December, 1954, having passed the bar exam, Judge McDevitt, along with Ray McPeters, Jim Chapman, and Howard Snapp, was sworn in as an attorney in Mount Clemens, by Macomb County Circuit Court Judge James Spier and Judge Alton Noe. In early 1955, Mary Elizabeth McDevitt proudly became a member of the Macomb County Bar Association.

Also in 1955, Don Case, a former deputy sheriff who worked for J. Russel LaBarge, Senior, told Judge McDevitt about a position available in the juvenile division of Macomb County Probate Court. When she applied and got the position, Probate Judge Joseph V. Trombly informed her that she would need a car because her job would be conducting investigations of homes and boarding houses for adoptions and foster care; she would also be transporting people to court. In other words, the job involved mainly social work. Her mother lent her the money for the down payment on the car, which she repaid with her first paychecks. Judge McDevitt worked at the probate court for almost two years, growing more and more frustrated at her inability to find a position using her legal training. She saw people who did not live in the county, and who had graduated after her, getting positions for which she was qualified. She felt that she was getting nowhere. When she applied in person for a position in the county prosecutor’s office, the prosecutor listened attentively as she requested an application form, and then said that he would give her the form, but “I’ll throw your application in the basket as soon as you leave this office because this job is too dirty for a woman.”

Finally, frustrated from not using her legal training, Judge McDevitt decided to quit the position at probate court to start her own practice of law. In December of 1956, Attorney Mary Elizabeth McDevitt opened her office, sharing space in a little building next to Kaul’s Funeral Home on Gratiot in Roseville with realtor Charles Reaume, paying him $50.00/month in rent. As a sole practitioner, Attorney McDevitt worked hard to build up her client base.

In February of 1957, encouraged by friends and family, Attorney McDevitt ran in the primary for the part-time position of justice of the peace serving Erin Township, of which the Village of Roseville was a part. What prompted this quiet, unassuming woman to run for political office? Perhaps it was the absence of opportunity that thrust Mary Elizabeth McDevitt into the public arena where her family name would work to her benefit. Attorney McDevitt, who had grown up in Roseville and had worked in various local establishments while pursuing her education, was herself well known in Roseville. Her father had made many friends when he was in law practice; her mother knew many people due to her position as a teacher and later as principal in Roseville. This was also an excellent opportunity to get her name before the public and perhaps increase business for her legal practice. To everyone’s surprise, Attorney McDevitt was nominated to run in the general election for justice of the peace.

Mary Elizabeth McDevitt, Attorney at Law, ran unopposed in the general election in April, and won, taking office on July 4, 1957. As this was a part-time position, she continued to practice law. Although the position was for a four-year term, Judge McDevitt had to run one and a half years later because there was an election to determine whether Roseville would become a city, which it did. Judge McDevitt won again, this time becoming a municipal judge. For the first three months of that term, the Charter called the position “Justice Court.” There were two judges elected: Judge McDevitt and William Fisher. At the end of that short term, Judge McDevitt was elected a full municipal judge, and Raymond Cashen was elected the associate municipal judge for Roseville.

In 1963 Judge McDevitt ran for municipal judge opposed. Judge McDevitt was reelected in 1963 and again in 1967, when she ran unopposed. In 1969, having served ten years as municipal judge, Judge McDevitt was “blanketed in” as a district judge as part of the restructuring of the court system.

In the election of 1972, the largest vote-getter for district judge was to serve a six-year term, with the other judge to serve four. Judge McDevitt received 1000 more votes than the other judge, capturing the six-year term. In 1978, Judge McDevitt ran unopposed; in 1984, she beat her opponent; and in 1990, she ran unopposed again. Finally, after thirty-nine and one half years on the bench, Judge McDevitt retired from public office. To pay tribute to this endearing and gracious woman, over 600 people attended her retirement dinner and party at Athena Hall in Roseville.

Judge McDevitt continues to attend and support civic and legal organizations in Macomb County. In her spare time she can be found at her “cottage” on Lake Huron, just north of Port Sanilac or dining with friends and family members, often at her favorite restaurant, Paul’s Chop House on Groesbeck, in Roseville, which was and still is a favorite gathering place for Macomb County politicos. Judge McDevitt is blessed with a large and supportive family as well as many close friends who enjoy her repartee. Judge McDevitt is renown for her astounding (and accurate) memory. She will regale you with stories from the 1940’s through to the present, entertaining people of every generation. She is also a good listener. Perhaps it is her ability to listen as well as speak to all these generations that accounts for her popularity and the affection and esteem in which she is held. The unveiling that took place on May 25, 2006 was an expression of the community’s appreciation and regard for one of its own. Chief Judge Santia, Judges Boedecker and Steenland, and Magistrates Denise Hirschman and Melissa King of the 39th District Court enthusiastically supported the idea of hanging Judge McDevitt’s portrait in her former courtroom. Denise Hirschman, as Court Administrator, planned and supervised the actual ceremony and reception, making it a memorable occasion for all who attended. The event was an appropriate tribute to Macomb County’s first lady judge.

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