Lady Litigator – Lisa Fantino
Award winning NY journalist turned attorney with an opinion about everything!Archive for June, 2009
Westchester attorney says death of Michael Jackson points up concern of testamentary guardians for children
Michael Jackson 1999, Photo: Michael Dalder/Reuters
After the shock of the death of Michael Jackson, many of the headlines have been divided between the financial extent of his estate and the care of his three children. Yet, Michael Jackson was just like any other father and whether or not he named someone to act as guardian for his minor kids can only be a guide for the state courts, which will make the ultimate decision over their guardianship.
Often, when parents draft a will, their lawyer will have them name a guardian for their youngsters in case something happens to them; however, what many attorneys fail to tell their clients is that this language is only considered precatory. That means the language expresses a wish or desire but does not create a legal obligation or affirmative duty. Further, appointment of a guardian for a child is left to the court’s discretion, which will determine what is in the best interests of the child. In the case of Jackson, temporary custody has been given to his mother, Katherine, pending a hearing in August.
Now, parents should distinguish between establishing a testamentary trust and a testamentary guardian. The will can include express language establishing a trust (and a separate instrument will be drawn setting forth the trust’s parameters). The testator (in this case the parent) can say how the trust will be funded; appoint a trustee; set forth how disbursements will be made and under what conditions, etc. That deals with assets and finances. However, suggesting who will care for their children is something they can only suggest and hope that in the end the court will follow their wishes. If you have minor children, it is imperative that you consult an experienced estate attorney in your state.
In the case of Michael Jackson, we can only guess as to whether or not he left a will. Today’s NY Times reports that his mother Katherine has petitioned the court to be administrator of his estate. That would suggest that there is no will because court’s appoint an administrator in the absence of a will which would appoint an executor or executrix.
Westchester attorney asks nation to focus on real issue with Governor Sanford and other wayward pols
Let he who is without sin cast the first stone. Now, men of politics and the media, that comment is addressed specifically to you. It seems the headline for the past few days about South Carolina Governor Mark Sanford has been that he’s cheated on his wife……….ooooooh, alert the media, call in the National Guard. This is generally coupled with comparisons to John Edwards, Bill Clinton and Elliot Spitzer with terms of “entitlement” and “arrogance” thrown in for good measure.
First, let’s clarify a few things. What Spitzer did was criminal – she was a hooker. What Edwards and Clinton did was just plain stupid. Now, what Sanford did was grossly negligent and without knowing the statutes of South Carolina state government, he might have violated a few; I don’t know nor do I care.
Governor Mark Sanford/Getty Images
Yes, Sanford was a dick (no pun intended) but the affair is between him and his wife. The more important problem for taxpayers is his serious lapse in judgment to leave the state without telling anyone. He gave up that right to privacy and to come and go as he pleases when he was elected to represent the people of South Carolina. They pay his salary (fringe benefits included) to be the state’s chief executive. He had a duty, at the very least, to inform his Lieutenant Governor Andre Bauer. What if there was a terrorist attack and this nut job was out of the country. We all remember how easy it was to get a commercial flight from/to anywhere the last time that happened. Good going Mark.
What if there was a tornado or a hurricane? Again, Mark, how would you handle that? Call up Andre and say, “Hey, Bubba, can you handle this for me; I’m tied up at the moment?”
As Clinton did, and as most other men would if given the opportunity, weaken when it comes to anything sexual – they are just wired that way. It has nothing to do with being Governor. The issue is he was lying down on the job. If that was anyone else in any other job as important, he’d be sacked. So sack him. Then the poor schlub can go back in the sack with whomever he desires.
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Retired Racehorses Turning into Deputy Dog?
Deputy Dog Fights Crime but what about Horses?
They shoot horses don’t they? OK, so that was a bad reference to a really bad movie but I couldn’t resist the line before my morning coffee. Yet I loved starting the day, this day, knowing that retired racehorses are fighting crime in downtown Newark (I am glad someone is!).
Deputy Dog it’s a real horse race now! (Oh, please someone stop me!!!!)
Photo by Mike Derer/Associated Press
Instead of sending the poor thoroughbreds off to fates of the worst kind, they take a bit of money and re-train them to help fight crime.
And they’re off……………………….Crossing the finish line, one perp followed by whoooooooooa Nellie. Hope you have a winning day!
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Westchester entertainment lawyer on Ozzy’s doc hitting sour note in NY libel case against The Post
Back in the day when this nation’s standard for libel was set forth in N.Y. Times Co. v. Sullivan, 376 US 254 (1964), the U.S. Supreme Court held that in order for a plaintiff to prove that he was defamed, if he was a public figure, he had to prove actual malice or a reckless disregard for the truth by the alleged miscreant. However, as more and more people are seeking and getting their 15 minutes of fame, courts have held more and more of us to the public figure standard when it comes to proving actual malice as set forth in the Times case. (Thank reality TV for that!)
Just recently in Kipper v. NYP Holdings Co., 12 N.Y. 3d 348, —N.Y.S.2d — (April 30, 2009), New York’s high court, the Court of Appeals, held in a 6 – to – 1 decision, that a Los Angeles doctor was not defamed by the N.Y. Post, which reprinted a wire service article from the L.A. Times, when it said the doctor’s license had been revoked for the alleged overdosing of entertainers, including Ozzy Osbourne.
The Los Angeles Times had reported back in 2003, according to Osbourne, that Dr. David Kipper had over-prescribed various meds to him to during the time that Osbourne starred in a television reality series.
Ozzy Osbourne by Martin Schoeller/Rolling Stone magazine
In addition, the Times article accurately stated that the California Medical Board had “moved to revoke” Kipper’s license due to his alleged gross negligence in the treatment of other patients. Well, a few days later the New York Post picked up the story and changed it up a bit, stating that the doc’s license had already been revoked.
Naturally, this drove Kipper into a tizzy and he demanded and received a retraction in a comparable placement within the Post to the original story but Kipper sued them anyway. Shortly after discovery was completed, the Post moved for summary judgment and while it lost at the trial court level, the decision was reversed in the Appellate Division and finally affirmed by the Court of Appeals.
Now, you may be asking yourself did Dr. Kipper become a “public figure” by virtue of rubbing elbows with his celebrity clientele. That answer would be a resounding “no.”
Physician or Public Figure?
The Court held Kipper was a public figure in his own right, “due to the extensive media coverage of his detoxification practice, his more than 100 television appearances as a medical expert, and his roles as a doctor in several films,” and was therefore held to the actual malice standard for proving defamation. The Court upheld the premise that the “actual malice” standard recognizes that public figures need to develop a thicker skin because the occasional falsehood is “inevitable in free debate” and publishers must have sufficient “breathing space.” So, if you want to step into the deep end of the pond for notoriety, be prepared to swim with the sharks.
By the way, the California Medical Board, in November 2007, ended a nine-year investigation of the doc with a public reprimand for bad record-keeping.
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