Analyze contract defenses.
Johann and Mary are brother and sister. They are assisting Jacob, their grandfather. Jacob has been diagnosed with dementia, with a poor short-term memory and some difficulty reasoning. The doctor recommended a conservatorship, but Johann and Mary declined to seek one.
A month before the doctorâ€™s appointment, Jacob gave $100,000 of his $400,000 401K pension plan to Johann and Mary. After that, they assisted him for one month with light housekeeping. Jacob has no other assets of value, so this has cut his wealth substantially. He rents a house and receives a small social security check. They asked for this money in advance before they would assist him. He normally does whatever they ask. They remind him often that he has failed them because he has not done enough for them. Their parents became estranged from them when they were age 24 and 26 due to their refusal to get jobs. They left their parentsâ€™ home and lived with their grandfather after that. They prefer not to get outside jobs, even though they are both capable of doing so.
It is not 100% clear when his dementia began, but the doctorâ€™s report indicates that it started before the $100,000 was paid. Jacob can carry on a normal conversation, so Johann and Mary describe the doctorâ€™s report as nonsense.
Johann and Mary want to receive the rest of Jacobâ€™s assets, but are aware that they may be accused of elder abuse by cousins or other family members, so they have asked your supervising attorney to prepare a contract for Jacob to sign. They will do normal weekly housekeeping and look in on Jacob at least three times per week in return for the remaining funds, payable over a three-year period. They will not do any personal care but will arrange for care as needed. They will each receive a salary each month, from Jacobâ€™s social security and monthly 401K earnings and a lump sum of $50,000 each at the end of each year. Should Jacob outlive his assets, they plan for him to go on Medicaid and Assisted Living at state expense.
Issues in the case are both ethical and legal. Ethical challenges include the role of the attorney and whether Jacob should have his own attorney.
By submitting your assignment to this drop box you agree to abide by the Academic Misconduct Policy set forth in the course syllabus. You acknowledge that your failure to do so could result in being expelled from the course.
- Find the very latest case in Lexis Advance or Fastcase in any state, using a search like this: â€œvoidable contractsâ€ and incapacity. The first two words are in quotes to make sure the search finds cases that include those two as a phrase.
Here is an example from summer 2019, but your case should be the newest one you can find nationally: Rice v. Music Royalty Consulting, Inc. 2019 U.S. District LEXIS 102469
- Next, find and cite the most recent available case in any state that is on Fastcase on contract law and undue influence. Use this search or a similar search to get to contract law and not criminal law: undue influence & contract NOT crim* Sort results by recent decision date so you get the most recent one.
- Take a position on the legal and ethical issues presented in the scenario and support it with your sources. The following two questions are the â€œIâ€ in the IRAC:
- Legal Issue: Is fraud or incapacity involved?
- Ethical Issue: If the attorney does the contract and no attorney reviews it for Jacob, is that unethical under the ABA Code or a state code that is similar to the ABA Code of Professional Responsibility?
Complete the rest of the IRAC analysis for these two issues. Additionally, use and cite the module readings, applicable ABA Rules of Professional Conduct, and use your own moral compass to support your position. You may use a table or memorandum format.
- In addition, identify your ideas on what the other side may say in response to your position.