More on Lillian Glasser
As I indicated here, the Lillian Glasser case has received a fair amount of attention recently. In my post last week, I mentioned Mrs. Glasser's power of attorney, and the actions of her daughter, Suzanne Mathews (the agent), thereunder (including Ms. Mathews' creation of partnerships, and Ms. Mathews' making of gifts to pay for her son's tuition). Evidently Mrs. Glasser's son Mark was monitoring her case on the internet, as he left a phone message for me on Friday. We spoke for about a half hour yesterday morning, and Mr. Glasser has forwarded me two documents of note:
1. A copy of Mrs. Glasser's power of attorney dated December 9, 2002, appointing Ms. Mathews as her agent. The document does indeed allow Ms. Mathews the power "[t]o make gifts or other transfers... without consideration either outright or in trust to such a person or organizations." I have no idea what "such person or organizations" means, but I do know that when I draft a power of attorney that includes the power to make gifts, I (a) limit the power of gifting to a carefully defined class (i.e. "my descendants and their spouses") and (b) clearly specify whether the agent may make gifts to himself or herself, or to his or her relatives.
2. A letter from Mrs. Glasser's physician, Michael J. Lichtenstein, MD, to Ms. Mathews dated April 30, 2002. This letter states that Dr. Lichtenstein evaluated Mrs. Glasser on April 3, 2002 and April 5, 2002, and found that "[y]our mother's cognitive deficits... are severe enough at this point that I do not believe Mrs. Glasser has the mental capacity to manage her finances.... [T]hese deficits are likely to become progressively worse in the years ahead." Dr. Lichtenstein's recommendation? "Under the present circumstances, you should activate the Power of Attorney that your mother executed years ago in anticipation of a time when situations such as her present condition might arise."
In other words, more than 8 months before Mrs. Glasser signed the power of attorney naming Ms. Mathews as her agent, her physician told Ms. Mathews that Mrs. Glasser was incapacitated. You may recall that Ms. Mathews' attorney (Sharon B. Gardner) stated, in her e-mail to Professor Beyer posted here, that "... Mrs. Glasser designated her daughter to serve as her agent at a time that Mrs. Glasser had capacity." If the designation to which Ms. Gardner refers is the December 9, 2002 power of attorney, and the documents furnished to me by Mr. Glasser are accurate, then I don't know how this statement can be correct.
Some follow-up questions: Dr. Lichtenstein makes reference to a "Power of Attorney that your mother executed years ago." Did such a power of attorney exist? If so, what were its terms, and why was it not put into effect in April of 2002? (According to Mr. Glasser, such a power of attorney did not exist -- hence the need for the December 9 document.)
[added 1/11/06: These above questions weren't meant to be rhetorical -- I'm trying to do a little investigating to see what I can find out about a prior power of attorney. Unfortunately, I've hit a bit of a dead end. Mr. Glasser forwarded me his sister's testimony on this matter, in which she states that she believes an attorney named Henry Spritzer drafted a power of attorney for Mrs. Glasser prior to 2002. Unfortunately, Mr. Spritzer passed away a couple of years ago. I have placed a call to Joseph Purcell, the attorney who drafted the December 2002 power of attorney, to see if he has any insight on this matter. I haven't yet spoken with him, but I hope to review his testimony in Mrs. Glasser's case in the near future.]
