June 8, 2018
CapitalPress.com
Washington agriculture department
discontinues strawberry commission
Mental competence a key
factor in estate planning
Growers
sought end to
assessments
10 million acres of
farmland to change
ownership over
next two decades
By DON JENKINS
Capital Press
By GEORGE PLAVEN
Capital Press
It is no secret farmers and
ranchers are getting older
across the West.
According to a 2016 study
by Oregon State University
and Portland State Universi-
ty, the average age of farmers
and ranchers is now 60. As
more baby boomers prepare
for retirement, an estimated
10 million acres of farmland
will change ownership over
the next two decades, making
farm succession and estate
planning that much more im-
portant.
But what happens when
the farm or ranch owner is no
longer mentally capable of
making those decisions?
That was the subject of a
lecture May 31 at Providence
Benedictine Nursing Center
in Mt. Angel, Ore., dealing
with mental competency in
estate planning.
About 40 guests heard
from Maria Schmidlkofer,
a Salem attorney focused
on estate planning and farm
succession, as well as Ho-
Yann Jong, a neurologist for
Providence Medical Group
in Portland, and Amy Friday,
a licensed clinical psycholo-
gist for the Oregon Passionate
Aging and Living Institute in
Portland.
Schmidlkofer related a few
of her experiences working
with clients, and highlighted
some high profile cases like
wealthy New York philanthro-
pist Brooke Astor and L’Oréal
heiress Liliane Bettencourt.
Both women had Alzheimer’s
disease before they died, and
disputes erupted whether they
were being taken advantage
of for personal gain by friends
and family.
“Mental competency af-
fects a lot of people,” Schmid-
lkofer said. “Even if you’re
wealthy, it comes up quite a
bit.”
Statistics show that 38
percent of people 85 or older
have dementia or some type
of cognitive impairment,
Schmidlkofer said, yet attor-
9
George Plaven/Capital Press
Maria Schmidlkofer, a Salem, Ore., attorney who specializes in
estate and farm succession planning, speaks at the podium during
a lecture on mental competency in estate planning at Providence
Benedictine Nursing Center in Mt. Angel, Ore. Neurologist Ho-Yann
Jong and clinical psychologist Amy Friday were also on hand to
share their expertise.
“You want to make sure you put special
guidelines in the document about the farm and
what’s supposed to happen to it.”
Maria Schmidlkofer
A Salem attorney focused on estate planning and farm succession
neys like herself must begin
with the assumption that a
client is competent — mean-
ing they have legal capacity to
sign a document. However, to
sign a will or a trust requires
just the most basic level of
competency, Schmidlkofer
said, which opens the door
to pressures like undue influ-
ence, which could invalidate
the agreement.
Disability planning is
key to any good estate plan,
Schmidlkofer said. In some
cases, a court-appointed
guardian or conservator may
be required to step in and help
manage finances.
The goal is to protect your-
self and protect your assets for
future generations, Schmid-
lkofer said.
“I really think it’s an ex-
pression of love for your fam-
ily when you have your estate
planning done,” she said.
Jong went into further de-
tail about how doctors distin-
guish between normal aging,
mild impairment and more
serious forms of dementia.
In terms of decision-mak-
ing, Jong said there is a differ-
ence between mental capacity
and competency. Competen-
cy, he said, is a purely legal
term defined by the courts,
while capacity is related to a
specific decision, specific ac-
tion and specific context. A
person may have the capacity
to make some decisions but
not others, and that capacity
may change over time.
Financial capacity is the
ability to manage money and
assets consistent with a per-
son’s values and self-interest.
It is often the first thing to slip,
Jong said, indicating the onset
of dementia. A physician’s
role is to screen for impair-
ments, educate patients and
families about their options
and refer them to specialists,
like Friday with the OPAL In-
stitute.
Friday was quick to point
out that because someone is
physically disabled, or has a
different set of values, does
not mean they are not men-
tally capable of handling their
estate plans.
“We don’t want to confuse
normal aging with having a
problem,” Friday said.
Qualified
professionals
can evaluate a person’s basic
brain functions to determine
if they lack capacity, Friday
said. At that point, legal rep-
resentation may be required in
estate planning.
Schmidlkofer
advised
against a one-size-fits-all ap-
proach to estate plans, espe-
cially for farms and ranches.
“Every farm has a lit-
tle different plan,” she said.
“You want to make sure you
put special guidelines in the
document about the farm and
what’s supposed to happen
to it.”
The dormant Washington
Strawberry Commission has
been terminated by the state
Department of Agriculture, a
year after the commission’s
board asked that it be dis-
banded.
The commission official-
ly will cease to function June
30, according to a depart-
ment memo sent to strawber-
ry growers. The commission
did not collect assessments
on the 2017 crop and won’t
on this year’s harvest either.
The strawberry com-
mission had struggled to
fill board positions. Straw-
berry production has been
declining, and growers said
the commission’s primary
functions, promotion and re-
search, provided little benefit
to farmers who sell berries to
processors.
Based on the industry’s
position, ending the commis-
sion was the right decision,
the commission’s interim
chairman, Richard Sakuma
of Sakuma Brothers Farms in
Skagit County, said Monday.
He said there are no plans
to form an association this
year to promote fresh straw-
berries.
“I’m not saying it’s out of
Don Jenkins/Capital Press
The state Department of Agriculture has terminated the Wash-
ington Strawberry Commission. Growers petitioned to end the
assessments that supported the commission.
the question (in the future),
but it would be starting from
scratch and would be a little
difficult,” Sakuma said.
Growers were assessed
one-half cent per pound to
support the commission. In
2016, the commission col-
lected from 35 growers a
total of $36,144, less than
one-third the amount raised
15 years ago. Growers cit-
ed the shortage of labor and
California’s dominance as
factors contributing to the
decline.
When the commission’s
books are closed, there will
be no money left over to re-
turn to growers, according to
the department.
Half of the positions on
its eight-seat board were va-
cant when the commission
petitioned Agriculture Direc-
tor Derek Sandison last year
to terminate the commission.
The agriculture depart-
ment held a referendum
on the request, but too few
growers returned ballots to
validate the election. Subse-
quently, three large growers
petitioned to disband the
commission.
The demise of the straw-
berry commission will leave
Washington with 21 agricul-
tural commodity commis-
sions.
Appeal request denied in Oregon timber suit
Class action over
logging practices
will go to trial
By MATEUSZ PERKOWSKI
Capital Press
A class action lawsuit that
alleges insufficient logging
of Oregon’s forests can go
to trial without first being re-
viewed by the Oregon Court
of Appeals.
Linn County Circuit Judge
Daniel Murphy has rejected a
motion by the State of Oregon
to allow for an “interlocutory
appeal” on thorny legal ques-
tions before the Oregon Court
of Appeals.
The complaint seeks more
than $1 billion in damages on
behalf of 14 counties and nu-
merous taxing districts, which
claim they’ve received inade-
quate logging revenues from
forestland they donated to the
state government in the early
20th century.
Contractual agreements
require those forests to be
managed for maximum tim-
ber revenue, but for the past
20 years, Oregon has instead
focused on environmental and
recreational values, according
to the plaintiffs.
Over the past two years of
litigation, Murphy has ruled
on several points of law in the
case, such as whether “sover-
eign immunity” bars counties
from suing the state govern-
ment in this context.
In January, the judge de-
nied a request by Oregon’s
attorneys to dismiss the law-
suit on that basis, but the state
government had hoped to
raise the matter and others in
an “interlocutory appeal” be-
fore a trial.
While the state’s attorneys
claimed the Oregon Court
of Appeals would provide a
“road map to the key issues,”
the counties argued such an
appeal would unnecessarily
delay the proceedings by up
to three years.
Postponing the trial would
prejudice the counties’ case
because witnesses and experts
“are already in advanced years
and may not be available, or
may have less clear recollec-
tion,” once finally called to
testify, said John DiLorenzo,
the plaintiffs’ attorney, in a
court brief.
With the judge deciding
against an appeal, a trial can
be expected to take place
within the first half of 2019,
most likely by March, he said.
Capital Press was unable
to reach an attorney for the
state for a comment on the
decision.
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