My Dearest Sister Deb . . . God Bless And Prayers Forever . . . I am Doing My Best To Bring About Your Wishes . . . And To Find Out And Reconcile What Happened . . . Your Loving Brother Dave

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For me and for Deb’s many family members and relatives and friends, Deb will always be remembered for the vibrant, loving, outgoing, happy and positive-looking, helping, and outdoorsy person that she is, was and had been. Deb loved the beach (thus the picture above), and as those close to her know, Deb loved her Annie (below).

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I received a phone call on Sunday, September 12, 2021 at about 8:30 am California time (11:30 am Florida time), during which I was told that my dearest sister Deborah Trotta (Tate) was missing, and had been missing since the day before on September 11. My responses several times were – yes, do immediately call the police. Following a couple of calls and texts (and I immediately left a phone message and texted Deb on her phone), and a short time later, I was told that Deb’s body had been found on the beach which was near her home (Martin County, Florida).

This is in memory of Deb and to honor and remember her for the fully-beautiful person that she is and was, and to wish for God’s blessings and prayers for her. I am also working to bring about Deb’s wishes and what she would have wanted, and to find out and reconcile whatever happened, achieve whatever closure is possible, and express sadness for Deb and what she must have been feeling and went through.

In the best of worlds and for some situations what is said above might be enough, and for people to have their memories. But this is not the best of worlds or the standard situation. Deb’s death and her situation can only be described as a tragedy. People who care about Deb, and there are many, naturally want to share, and to know and are asking what happened – how could this happen? I have been asking and trying to obtain information since the first phone call that I received on September 12. Information is missing, information has been requested, and very unfortunately information and access to that information are not being provided. What aren’t fully known are the “what” and the “why” of what happened? Except from family and relatives and close friends who care and are concerned, information and documents about Deb and specifically what happened and what was communicated on September 10-12, 2021, and the week(s) before are not forthcoming. Thus, it is impossible to reconcile what might or might not have occurred, and why, and to reach closure. Instead, the tragedy, the grief and grieving, and the wondering are made worse and are prolonged for those who care.

I have been told that Deb sent a text at 5:37 pm Florida time on September 11. I requested a copy of the text – my request has been denied – I have been told that the text is private. Deb wasn’t a private person and wouldn’t have been a private person about these types of matters, at least not with me or with her family and relatives and close friends.

It is my understanding that Deb made a phone call on September 11, and asked about Annie. I have been told that Annie wasn’t with Deb – it would have been very out-of-place and unnatural for Deb to have been without Annie, and at night, and all night, and all the next morning until almost 12 Noon the next day.

I have been told that Deb left a note. I requested the actual wording, and a copy. Neither of which have been provided.  I have been told a couple of different but somewhat similar versions. If there is a note, and if it is in fact by Deb, from what I have been told it sounds to me like the possible note is out of despair and final resignation – and Deb’s then lack of the control and ability to complete and to bring about what I and others had been working on with Deb – like there had been an event or a catalyst on September 11. There are also any number of different scenarios about what could have occurred, and did occur, prior to and at the beach, including interactions with other people. Deb could be a fighter, and she had a natural forward-looking generally positive view of and approach to things and life. The possible note also sounds like Deb named Annie as a recipient or the recipient of Deb’s worldly things and possessions. Deb deeply loved and cared for and about Annie, who was Deb’s greatest and closest in-person and always present joy and solace. On September 13, I communicated that we will take Annie. Our having Annie also has been denied. In addition to her wishes, Deb had communicated who she would have considered acceptable for Annie, and who definitely was not.

All of this and what occurred should be an open book. But it isn’t. What happened needs to be known – for Deb, and for me, and our family and the many relatives, and Deb’s friends and very long-time friends, and our Dad (deceased 2015), and the Tate and Zitter families both alive and deceased, and Anne Tate (Zitter) (deceased), and for legacy and family to follow, and hopefully for some closure.

Deb used her phone as a primary means of communication, as do many people – calls, messages, texts, emails, pictures, recordings, internet, etc. Her phone is another key. Did she have it with her, and when? When did Deb use or try to use her phone on September 10-12? When did other people contact or try to contact Deb? I was told on the morning of September 12, that Deb did not have her phone with her. If true, that also would have been very strange and unnatural, concerning, troubling and alarming, including as the time and the day and then the night progressed and moved on.

I am informed that the Sheriff’s Office has Deb’s phone – I don’t know where they found it, or when. I have asked the Sheriff’s Office to safeguard and to preserve Deb’s phone and what is on it. I have also asked for access.

I am informed that under Florida law the “next of kin” or “representative” (husband) of Deb has apparent authority over her phone and what is on it – and what to do with it – whether to safeguard, preserve and share the information and memories that are on Deb’s phone, or to keep them hidden or secret, or to delete, destroy or erase forever the memories, information and life of activities – Deb’s life and activities. I have requested access to Deb’s phone, that Deb’s phone information be shared, and that Deb’s phone and what is on her phone, and her phone account access be safeguarded, kept active, and preserved, and not be deleted, destroyed or erased. This request also has not been agreed to, which in this case means that it has been denied. Florida, California and other states need legislation and law changes on phone access and information for the close family and relatives.

I’m not prone to supposition. Presumably Deb was at the beach (alive) for a considerable length of time beginning on September 11. People probably or certainly might well have seen her and her car during the day and the night. From my view, if I had known that Deb, my beloved sister, should have or normally would have been at her home on September 11 or by a certain time, but wasn’t, and also was out of the house without her Annie, and at night, and all night, and all the next morning until almost 12 Noon, I would have known and certainly would have thought that something was very wrong and out-of-place beginning on September 11 and thereafter. I would have been calling and texting Deb, and her friends and family and relatives. Anyone who might know or have information. I would have been out looking for Deb including at the beach which she frequented, and looking for Deb’s car (found in the beach parking lot, I am told), and asking others to look for Deb, and contacting the Sheriff’s Office. After calls and texts, the beach and the parking lot would have been my next frantic search. Most people would have done so, I believe. Perhaps that happened, but if it did, I haven’t been so told. There is a dearth of information being provided.

There is more – much more is known, including things about divorce and what was being worked on for and with Deb. As Deb’s surviving brother I cannot be silent on this. Deb would want me and others to speak and to take action and to find out in this situation when Deb cannot. Deb also would not want the information and documents, and her memories and life of activities, and access to them, to be controlled and withheld and erased from the people who care about Deb and who are asking and wondering and thinking about her and what happened. From the first phone calls on September 12, I requested a full investigation and complete information to learn what had happened that would lead to what has at this point been referred to as death by gun shot.

This is a summary. I’m also not discussing the tragedy as a lot of information isn’t known. It is my experience in cases that what happened remains speculative or at least unconvincing unless all of the significant information is obtained, shared, recreated, and critically evaluated. And in this case information, documents and events also are in conflict or are simply strange and out-of-place and don’t make sense. In any event, whatever the eventual analysis, the “why” and the “how” did this happen, and how could or should this have been avoided and prevented are important and are needed, as are also honoring and bringing about Deb’s wishes.

Please say a prayer for Deb and for other people who you know who are in her or similar situations. Deb is remembered and will be remembered always and thought about often. I can tell you that this is definitely true for me and for other of Deb’s family and relatives and friends.

Deb made known her wishes and intentions, what she wanted and would have wanted, and what she would not have wanted, including for her beloved Annie. We do need to find out and attempt to reconcile what happened, and to bring about Deb’s wishes – to care for Annie as Deb wanted – to get Deb’s ashes to California as she wished (and where Deb long wanted to be able to move) – and for Deb’s things and belongings and what she had and owned in this world to go for the purposes and to whom she wanted, and would have wanted in this situation, and as she wished.

I also thank everyone who is asking about Deb, and about what happened, and who is concerned, and who is sharing information and what they know or have heard. Please, yes, I am requesting that anyone who has any information or who has heard something or anything, whatever it might be, that might be relevant to what happened, or possibly why, or what was going on, to help reconcile and piece all of this together and possibly bring some closure, and to please reach out to me or to other of Deb’s family, relatives and friends. I am easy to find – try email at tateatty@yahoo.com or if that doesn’t seem to work try davetateesq@gmail.com.

My dearest Deb, my sadness for you is absolute. You will always and everywhere be with me and in my thoughts and prayers. Your loving brother, God bless, and prayers, and always, Dave

That’s all for now. More to follow.

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Next in Britney Spears conservatorship? Possibly no changes, or new conservator(s), or the lessening of restrictions, or termination . . . .

If you have been following the news and developments in Britney Spears’ conservatorship case, undoubtedly you have come to realize that the Judge in a conservatorship case, and, indeed, in almost all probate court cases, has significant discretionary decision-making authority within the parameters of the law and the facts of the specific case.

Most logically it would be up to Ms. Spears to file a petition or petitions with the Court if she wants to change anything significant relating to her conservatorship. Other interested persons also can have legal standing to file their own petitions in the case; however, most likely it would be more persuasive with the Court for Ms. Spears to be the person who would file a petition to remove a conservator or to appoint a new conservator or co-conservator, or to lessen the conservatorship limitations or restrictions on Ms. Spears, or possibly to terminate the conservatorship.

Assuming that the conservatorship continues, and for as long as it continues, the Judge does have the authority to appoint, remove and replace a conservator. In Ms. Spears’ case conservators have already been appointed and added, and have resigned.

California Probate Code section 2650 (Causes for Removal) states the reasons for which a conservator may be removed. Again, the Judge has significant discretion. Section 2650 primarily is focused on the conservator’s actions and inactions and whether or not those actions and inactions are in breach of his or her fiduciary duties. Section 2650 also lists as one criteria the risk that the conservator’s actions might in the future be in breach of his or her fiduciary duties.

Interestingly, section 2650 does not specifically list difficulty or inability of the conservatee and the conservator to communicate or the conservatee’s wishes; however, in Ms. Spears’ situation I would argue that her wishes should carry significant importance, and that the communications and ability to communicate or the lack thereof between Ms. Spears and her conservator also should be considered. Also note that in some situations pertaining to a conservatorship, or to a power of attorney, or to a trust administration, consent or informed consent when possible also might have some relevance – in other words, communicating with the conservatee, or with the principal, or with the settlor/trustor to inquire about her or his wishes won’t necessarily control the decision-making, but those communications and the ability to communicate or not might have relevance.

A conservatorship is a court (i.e., State or Government) action that limits the conservatee’s rights. Thus, it is recognized the restrictions upon a conservatee that a Court orders should be the least restrictive under the circumstances. Accordingly, a conservatorship also can be modified to lessen the restrictions that have been ordered on the conservatee.

Below I have pasted California Probate Code sections 1861, 1862, and 1863 which pertain to terminating a conservatorship. Section 1861 states who has legal standing to petition for termination of the conservatorship. Section 1862 provides that the petition must be brought by way of a noticed hearing.

Section 1863 provides additional legal and procedural requirements including that the conservatee can request a trial by jury, and that witnesses may appear or be presented both in support of the conservatorship and in opposition to the continuance of the conservatorship.

Section 1863(b) provides as follows: “(b) If the court determines that the conservatorship is no longer required or that grounds for establishment of a conservatorship of the person or estate, or both, no longer exist, the court shall make this finding and shall enter judgment terminating the conservatorship accordingly.” Thus, in support of termination, it can be argued that the conservatorship is no longer required, and also that the grounds for establishment of the conservatorship no longer exist. Those are two entirely different standards. Depending on the facts of the case, it might be easier to argue to the Court that the grounds for the establishment of the conservatorship no longer exist, or, perhaps, that if the conservatorship petition was just now being brought, under the current facts the conservatorship would not be granted. Both arguments should be made if they can be supported by the current facts.

Section 1863(d) also adds: “(d) Termination of conservatorship does not preclude a new proceeding for appointment of a conservator on the same or other grounds.” Thus, termination of the conservatorship does not mean that a new petition for conservatorship cannot or won’t be brought in the future if it it believed that a conservatorship is again warranted.

The following are California Probate Code sections 1861, 1862 and 1863:

California Probate Code, Conservatorship, Chapter 3, Termination

Probate Code Section 1861

(a) A petition for the termination of the conservatorship may be filed by any of the following:

(1) The conservator.

(2) The conservatee.

(3) The spouse, or domestic partner, or any relative or friend of the conservatee or other interested person.

(b) The petition shall state facts showing that the conservatorship is no longer required.

(Amended by Stats. 2001, Ch. 893, Sec. 21. Effective January 1, 2002.)

Probate Code Section 1862

Notice of the hearing on the petition shall be given for the period and in the manner provided in Chapter 3 (commencing with Section 1460) of Part 1.

(Enacted by Stats. 1990, Ch. 79.)

Probate Code Section 1863

(a) The court shall hear and determine the matter according to the law and procedure relating to the trial of civil actions, including trial by jury if demanded by the conservatee. The conservator, the conservatee, or the spouse, or domestic partner, or any relative or friend of the conservatee or other interested person may appear and support or oppose the petition.

(b) If the court determines that the conservatorship is no longer required or that grounds for establishment of a conservatorship of the person or estate, or both, no longer exist, the court shall make this finding and shall enter judgment terminating the conservatorship accordingly.

(c) At the hearing, or thereafter on further notice and hearing, the conservator may be discharged and the bond given by the conservator may be exonerated upon the settlement and approval of the conservator’s final account by the court.

(d) Termination of conservatorship does not preclude a new proceeding for appointment of a conservator on the same or other grounds.

(Amended by Stats. 2001, Ch. 893, Sec. 22. Effective January 1, 2002.)

There are no Westlaw Notes of Decisions for section 1863 – meaning that there appear to be no California cases that discuss section 1863 or how it is or is not to be applied by the Court.

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Best to you. David Tate, Esq. (and inactive CPA)

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Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My two blogs are:

Business, D&O, audit committee, governance, compliance, etc. http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only

Litigation, Disputes, Mediator & Governance: Business and Commercial, Trust/Probate, Real Property, Governance, Elder Abuse, Workplace, Investigations, Other Areas

HOW WOULD YOU RATE THE ESG AT YOUR LAW FIRM OR SERVICE PROVIDER BUSINESS OR ORGANIZATION – MENTAL HEALTH, INCLUSIVENESS AND SUSTAINABILITY?

While at least some of the public company investment world is focused on or interested in ESG, the fact is that ESG criteria can be applied to every business (public and private), governmental entity, nonprofit, and other organization, and also to every industry and profession. I have written previously, for example, that governmental entities, education (schools), medical/medicine, and some nonprofits would be well-positioned to apply and report ESG criteria as a means of demonstrating how other public and private businesses might go about doing the same, while perhaps at the same time raise community and public awareness and expectations and reducing the need or push for legislation. In the end, unless ESG becomes overly or too expensive and starts to not insignificantly negatively impact jobs, I expect that we will have both additional mandated legislation and regulations, and increasing community and public awareness.   

The discussion in this blog post is about law firm ESG, applying ESG to law firms, and rating the ESG at your law firm. For reference and a useful discussion about ESG criteria, I have copied and pasted below my December 29, 2020 blog post titled ESG and the “E” and the “S” and the “G” – ESG + Sustainability + Climate Action.

With respect to law firms, and for that matter also for other service and professional service businesses, governmental entities, nonprofits and other organizations (including, for example, education/schools and medical/medicine, I would view the “S” and the “G” and “Sustainability” to be the most challenging and important. That is not to suggest that the “E” and the “Climate Action” are unimportant, but merely to recognize that in service and professional service type organizations, such as law firms, people, governance, services and related risk management lift the organization and keep it operating, sustainable and perhaps growing.

Let’s look at “S” for a law firm. Some law firms and partners or owners are satisfied to operate their own practices and have a reduced interest in associate and mid-level experience attorneys, other than to the extent that those worker type attorneys support the partners or owners. Typically that type of firm also will not provide much in the way of mentorship, development, guidance, allowing involvement, or at some point upward mobility opportunities (including little dissemination of information that would help provide direction in those areas). Whether and to what extent to provide “S” to associates and mid-level experienced attorneys is a partner and owner choice. Without much “S” the firm and its partners and owners still can do well, but in my view not as well as they could by providing “S.” “S” also relates to community involvement – again, without community involvement the firm and its partners and owners still can do well, but in my view not as well as they could. See below from my December 29, 2020, blog post examples of some possible “S” criteria. In the context of law firms and the atmosphere and opportunities that are present two words that come to mind are mental health and inclusiveness, both of which are related to both “S” and “G” criteria. You might be aware that there has been a general increased focus on mental health in the legal profession and at firms, and this increased focus started pre-COVID. The following is a link to a post on the California Lawyers Association page discussing a new, recent study about attorney mental health and wellbeing (including the extent of stress, anxiety, drinking and depression) https://calawyers.org/california-lawyers-association/california-lawyers-association-and-the-d-c-bar-announce-results-of-groundbreaking-study-on-attorney-mental-health-and-well-being/.

Let’s look at “G” for a law firm. Some of these topic areas also relate to the firm atmosphere and environment for associate and mid-level experience attorneys, including, for example, whether and the extent to which they are allowed and encouraged to be involved in the governance or growth or marketing of the firm. Importantly, “G” also relates to the relationships and interactions of and between the partners and owners, and to other “S” criteria. Lack of governance, or inadequate or improper governance, and definitely bad governance can or will negatively impact the entire firm and its longevity, whereas “good” governance will have a positive impact. See below from my December 29, 2020, blog post examples of some possible “G” criteria.

Finally, for the purpose of this post “sustainability.” Law firms come and go, grow, or shrink or stagnate, but they and the legal profession and market are always changing. Laws change. The demand for legal services change. The competition changes. The people with or at the firm change. The abilities of the firm change. Sustainability involves “S” and “G,” the experiences, abilities, strengths, weaknesses, personalities, and hard work of the attorneys and other people at the firm, services and practice areas that are and that can be offered, the ability to personally reach and communicate with clients and prospective clients, and collaboration and working together.

I have not covered “E” or Climate Action – those can be topics for another post, and with comments and suggestions by other people relating to law firms and service and professional service businesses and organizations. As, for example, you may have seen recent articles discussing “E” as it pertains to cryptocurrencies, certainty law firm “E” extends beyond the use of paper and ink, office energy use, waste, and recycling.

Obviously the above discussion is not intended to be a treatise – certainly many attorneys and other people who work or who have worked at law firms, and at other service and professional service organizations, could add considerably more discussions.  Immediately below is the copy and paste of my December 29, 2020, blog post.

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December 29, 2020, blog post

ESG and the “E” and the “S” and the “G” – ESG + Sustainability + Climate Action

ESG criteria refers to an organization’s environmental, social and governance policies, practices and processes, some of which depend upon whether the organization is a public corporation or business, private corporation or business, nonprofit, not for profit or NGO, governmental organization or entity, or a hybrid or mixed organization or entity. ESG criteria will also vary depending on the size of the organization or entity, its industry, and whether it primarily provides a service, a product or manufacturing, or a combination of both.

The following criteria can be used for reference; indeed, however, whereas applicable criteria have been set in some circumstances or for some situations, applicable criteria otherwise often remain in a state of change, discretion, suggestion or proposal, and choice. The various services that evaluate and rate ESG also each individually decide which criteria they will use. Indeed, the below listed possible criteria are intended to be fairly encompassing so as to promote thought and consideration, but are not necessarily in the whole a list of required criteria. Each organization and entity must evaluate its own requirements and circumstances.

Environmental criteria broadly refer to some or all of the following:

Resource materials and energy evaluation, selection, use, and discharge, management and conservation;

Environmental risks and management;

Waste;

Emissions;

Pollution;

Hazardous and toxic wastes and emissions;

Ownership and management of contaminated materials and land;

Treatment of animals; and

Compliance with laws and regulations.

Depending on the processes that are being used sometimes the environmental component of ESG can be the more clear-cut or direct component to identify and measure.

Social criteria broadly refer to some or all of the following:

The organization’s or entity’s internal and external relationships, values and culture and its adherence to and enforcement of values with employees and independent contractors in the workplace and work environment;

Its working relationship employees, independent contractors and in the workplace, with customers, with suppliers, in the community, and with other stakeholders;

Human capital, as it has been called – I don’t particularly like the term “human capital” as to me it sounds a bit faceless or depersonalized – instead I prefer something such as simply the category “People”;

Health and safety;

Well-being;

Diversity;

Opportunities provided, inclusiveness and equality, training, mentorship, advancement and advancement opportunities;

Talent acquisition and retention;

Social engagement and active involvement;

Discrimination;

Organizational openness and communications;

Organizational trust, integrity and reputation; and

Compliance with laws and regulations.

I view the social criteria component of ESG as being the more currently challenging component because of the very large numbers of criteria that people can argue are or should be included, and its sometimes difficulty of measurement or more subjective nature.

Governance criteria broadly refer to some or all of the following:

The organization or entity overall, and to its leaders and their actions and leadership including such criteria as:

Board and management roles, makeup, structure, policies, processes and practices;

Decision making;

Accounting methods and related transparency;

Shareholder engagement and shareholder rights;

Avoidance of unlawful practices, and legally or ethically questionable business practices;

Strong, transparent and enforced governance policies and practices;

Codes of conduct and ethics, and enforcement;

Board, executive officer and senior management diversity;

Measurement of corporate and organization performance;

Corporate and organization values, trust, integrity, and reputation;

Board oversight;

Accountability for actions;

Oversight of internal controls;

Oversight of compliance with laws and regulations;

Compensation;

Avoidance of unlawful conflicts of interest;

Information disclosure;

Corporate and organization sustainability;

Oversight of environmental, social and governance criteria;

The organization’s use of information and private information, and information and cyber security;

Protection of the organization’s assets including intellectual property;

Officer, director, and management openness to appropriate challenges, disagreement, and criticism, and the manner and processes for learning about, addressing, evaluating and debating, decision making, and resolving those ongoing occurrences and situations; and

Board and director structure, agenda setting, demeanor, meeting processes, independence, and adherence to prudent business judgment and diligent, active and proactive business judgment rule practices.

Whereas the above list of possible governance criteria might suggest that the governance component of ESG is more well-defined, I view the governance criteria as currently being perhaps the more challenging component of ESG because a large number of possible criteria can be identified but in practice the criteria that are recognized as being accepted tend to be less numerous, and as a group governance criteria still tend to be more vague, undefined and less agreed upon, and identification, evaluation and measurement of governance criteria also tend to vary more from organization and entity to organization and entity.

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Best to you. David Tate, Esq. (and inactive CPA)

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Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My two blogs are:

Business, D&O, audit committee, governance, compliance, etc. http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only

Litigation, Disputes, Mediator & Governance: Business, Trust/Probate, Real Property, Governance, Elder Abuse, Workplace, Investigations, Other Areas

Dunlap v. Mayer – a new, important California trust case in so many ways: accounting standing and periods of time, notice, court discretion, evidentiary hearings, survival actions, etc.

Dunlap v. Mayer  (California Court of Appeal, Fourth Appellate District (April 23, 2021))

Below I have provided a summary of the facts and holdings in Dunlap v Mayer. In a move that is unusual for me, for the most part the great majority of the below discussions are taken directly from the case, with only a few additions or changes by me. You will, of course, have to read the case for yourself. Dunlap v. Mayer has a lot of helpful discussions and holdings under the facts of the case. In the discussion below I have tried to identify and separate or divide different discussion areas or topics by inserting a dividing line ( ———–) and by adding topic area titles. I have some or all of these issues in basically each of my probate court cases.

Enjoy, Dave Tate, Esq.

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BACKGROUND FACTS

Plaintiff John T. Dunlap is the executor of the New York estate (Estate) of Josephine A. Mayer, who passed away in 2016. Josephine was the lifetime beneficiary of a testamentary trust (Marital Trust) established by Josephine’s husband, Erwin Mayer. The Estate [i.e., the successor in interest to Josephine’s interest in the trust] petitioned the trustee of the Marital Trust, defendant Maria E. Mayer, for an accounting for the period from Erwin’s death until Josephine’s death (a period from January 21, 1995 through September 30, 2016). Maria objected to the petition, alleging that she was never a trustee of the Marital Trust and that she never had possession or control of the assets of the trust. The court dismissed the petition at a case management conference, without an evidentiary hearing to resolve the contested facts. The dismissal was pursuant to Cal. Probate Code §§17202 and 17206.

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LIMITATION ON COURT’S DISCRETION TO DISMISS UNDER PROBATE CODE SECTIONS 17202 AND 17206

Section 17202 states: “The court may dismiss a petition if it appears that the proceeding is not reasonably necessary for the protection of the interests of the trustee or beneficiary.”

Section 17206 states: “The court in its discretion may make any orders and take any other action necessary or proper to dispose of the matters presented by the petition, including appointment of a temporary trustee to administer the trust in whole or in part.”

Sections 17202 and 17206 both provide the court with discretion to make orders regarding trusts. (Gregge v. Hugill (2016) 1 Cal.App.5th 561, 567.) The court must exercise its discretion within the “ ‘ “limitations of legal principles governing the subject of its action.” ’ ”  (Id. at p. 568.) A court abuses its discretion if “ ‘it exceeded the bounds of reason or contravened the uncontradicted evidence [citation], failed to follow proper procedure in reaching its decision [citation], or applied the wrong legal standard to the determination.’ ” (Conservatorship of Becerra (2009) 175 Cal.App.4th 1474, 1482 (Becerra).)

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WITHOUT AN EVIDENTIARY HEARING – ACCEPT THE ALLEGATIONS OF THE PETITION AS BEING TRUE

Because the court dismissed the petition based solely on the pleadings, without an evidentiary hearing, we must accept the allegations of the petition as true. (Chacon v. Union Pacific Railroad (2018) 56 Cal.App.5th 565, 572.)

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STANDING OF A SUCCESSOR IN INTEREST BENEFICIARY TO DEMAND A TRUST ACCOUNTING FOR THE PERIOD OF TIME OF THE PRIOR BENEFICIARY

Maria contends that the Estate had no standing to petition for an accounting pursuant to section 17200 because the Estate was not a present beneficiary of the trust. She relies on section 24, subdivision (c), which states that a beneficiary is “a person who has any present or future interest, vested or contingent.” The complete definition of a trust beneficiary under section 24, however, states: “ ‘Beneficiary’ means a person to whom a donative transfer of property is made or that person’s successor in interest; and [¶] . . . [¶] (c) As it relates to a trust, means a person who has any present or future interest, vested or contingent.” (Italics added.)

In interpreting section 24, our Supreme Court has recently reminded us that “the Probate Code ‘ “was intended to broaden the jurisdiction of the probate court so as to give that court jurisdiction over practically all controversies which might arise between the trustees and those claiming to be beneficiaries under the trust.” ’ [Citations.] . . . [A]n expansive reading of the standing afforded to trust challenges under section 17200 ‘not only makes sense as a matter of judicial economy, but it also recognizes the probate court’s inherent power to decide all incidental issues necessary to carry out its express powers to supervise the administration of the trust.’ [Citation.]” (Barefoot v. Jennings (2020) 8 Cal.5th 822, 827–828.) Construing the words of section 24 with these precepts in mind, and with general tenets of statutory interpretation (see People v. Salcido (2008) 166 Cal.App.4th 1303, 1310–1311), persons with a present or future interest in a trust include those persons’ successors in interest. The Estate, as successor in interest to Josephine’s interest in the trust, can pursue an accounting for the time when Josephine was the beneficiary of the trust, i.e. during her lifetime.

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THE RULES OF THE SURIVABILITY OF THE PRIOR BENEFICIARY’S CAUSE OF ACTION

Probate Code section 1000 states: “Except to the extent that [the Probate Code] provides applicable rules, the rules of practice applicable to civil actions . . . apply to, and constitute the rules of practice in, proceedingsunder this code.”

Code of Civil Procedure section 377.30 provides as relevant: “A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent’s successor in interest, . . . and an action may be commenced by the decedent’s personal representative or, if none, by the decedent’s successor in interest.”

The general rules of survivability apply to proceedings under the Probate Code. (Code Civ. Proc., § 377.30; Elliott v. Superior Court (1968) 265 Cal.App.2d 825, 831 (Elliott).) The court in Elliott held that a beneficiary’s cause of action against the trustee survives the death of the beneficiary. (Id. at p. 831.) The court relied on former section 573, which was repealed in 1992 and “restated without substantive change in Code of Civil Procedure sections 377.20(a) (survival of actions), [and] 377.30 (commencement of action decedent could have brought) . . . .”  (Former § 573, repealed by Stats. 1992, ch. 178 (S.B. 1496) § 31, Law Revision Commission Comm.) The court said that the Legislature created “a comprehensive rule of survivability, and . . . there are no longer any nonsurvivable causes of action.” (Elliott, at p. 831.) Maria distinguishes Elliott because it involved the survivability of a cause of action when the beneficiary died while the action was pending. The Elliott court’s legal interpretation of former section 573 applies to both of its two successors in the Code of Civil Procedure, sections 377.20 and 377.30, regarding survivability and commencement of actions respectively.

In sum, Josephine’s right to request an accounting of the Marital Trust during her lifetime, when she was a beneficiary, continued after her death. The Estate, as the successor in interest to Josephine, was authorized to initiate this petition for an accounting from the trustee. (Code Civ. Proc., § 377.30; Elliott, supra, 265 Cal.App.2d at p. 831.)

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ERROR TO DISMISS PETITION FOR TRUST ACCOUNTING AND TO ACCEPT VERIFIED OBJECTIONS AND AFFIDAVITS OR DECLARATIONS WITHOUT AN EVIDENTIARY HEARING

The probate court erred in dismissing the petition at a case management conference, without an evidentiary hearing or completion of discovery and without giving the Estate notice that the conference could result in dismissal of the petition.

When matters within the purview of the Probate Code are contested, “[t]he court shall hear and determine any matter at issue and any response or objection presented, consider evidence presented, and make appropriate orders.” (§ 1046.) There was no hearing here, and no evidence was presented. The court relied on Maria’s objection to the petition, which stated that Maria did not know if the Marital Trust was ever funded, she never took title to or controlled any of the assets of the Marital Trust, and two businesses that were to fund the trust were defunct. The latter two statements were “to the best of her knowledge” and “upon information and belief,” respectively. The Estate contested these statements and produced documents showing that in 1996 money was transferred to the two entities that were the assets of the Marital Trust.

The court could not rely on Maria’s objections, even though verified, as a basis for its ruling because the facts were contested. “[W]hen challenged in a lower court, affidavits and verified petitions may not be considered as evidence at a contested probate hearing.” (Evangelho (1998) 67 Cal.App.4th 615, 620.) “[S]ection 1022 authorizes the use of declarations only in an ‘uncontested proceeding.’ ”  (Estate of Bennett (2008) 163 Cal.App.4th 1303, 1309.) “When a petition is contested, as it was here, . . . absent a stipulation among the parties to the contrary, each allegation in a verified petition and each fact set forth in a supporting affidavit must be established by competent evidence. [Citations.]” (Estate of Lensch (2009) 177 Cal.App.4th 667, 676.) The Estate contested Maria’s declarations about the trust. There was no competent evidence establishing the allegations stated by Maria in her objection to the petition.

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THE COURT’S DISCRETION TO MAKE ORDERS UNDER PROBATE CODE SECTION 17206

Maria contends that under section 17206, the court has the discretion to “make any orders and take any action necessary or proper to dispose of the matters presented by the petition . . . .”  (§ 17206; see Schwartz v. Labow (2008) 164 Cal.App.4th 417, 427.) “The probate court has general power and duty to supervise the administration of trusts.” (Schwartz, at p. 427.) This power, however, comprises only the “ ‘inherent power to decide all incidental issues necessary to carry out [the court’s] express powers to supervise the administration of the trust.’ ”  (Ibid., emphasis added.) In Schwartz, the court suspended the trustee and appointed an interim trustee pending a hearing. The court took these actions sua sponte, as part of its duties to supervise administration of the trust, and to inquire into the prudence of the trustee’s actions. (Ibid.) In another case, a probate court’s sua sponte request for an accounting under section 17206 was affirmed as part of the probate court’s duty to supervise the administration of the trust. (Christie v. Kimball (2012) 202 Cal.App.4th 1407, 1413.)

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DISMISSAL IS NOT AN INCIDENTAL ISSUE OR ACTION; THERE ALSO WAS NO NOTICE AND MOTION FOR HEARING ON DISMISSAL; AND THE COURT WAS REQUIRED TO HOLD AN EVIDENTIARY HEARING

Dismissal of a petition altogether is not an incidental issue; it is the complete resolution of the petition. The probate court does not have the power to dismiss an action sua sponte and without notice when, as here, there are disputed issues. The Probate Code requires that “[a] hearing under this code shall be on notice unless the statute that provides for the hearing dispenses with notice.” (§ 1042.) Neither section 17206 nor section 17202 dispense with notice for a hearing on a motion to dismiss. There was no notice of dismissal before the conference. Notice of the hearing stated only that it was set for a “[p]rogress report on pending discovery.” There was no notice to the Estate that dismissal of the petition would be considered, much less granted. (See Lee v. An (2008) 168 Cal.App.4th 558, 565 [court erred in imposing sanctions that resulted in a default judgment at case management conference when party had no notice that sanctions leading to dismissal could be imposed if party failed to appear].)

We note that reviewing courts are “increasingly wary” of using procedural shortcuts because they “circumvent procedural protections provided by the statutory motions or by trial on the merits; they risk blindsiding the nonmoving party; and, in some cases, they could infringe a litigant’s right to a jury trial.” (Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1594 [discussing in limine motions used to dispose of causes of action].) “The purpose of the pretrial is to expedite the proceedings and to facilitate the correct determination of the issues. The pretrial proceeding should not become a trap for the unwary.” (Mays v. Disneyland, Inc. (1963) 213 Cal.App.2d 297, 300.)

The court was required to hold a hearing and consider competent evidence on the contested issue concerning an accounting of the assets of the Marital Trust during Josephine’s lifetime. (§ 1046.) The court abused its discretion because it failed to follow the proper procedure in reaching its decision. (Becerra, supra, 175 Cal.App.4th at p. 1482; Gregge, supra, 1 Cal.App.5th at p. 571 [court abused its discretion in accepting dismissal that deprived petitioner of trial].)

* * * * *

Best to you. David Tate, Esq. (and inactive CPA)

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Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My two blogs are:

Business, D&O, audit committee, governance, compliance, etc. http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only

Litigation, Disputes, Mediator & Governance: Business, Trust/Probate, Real Property, Governance, Elder Abuse, Workplace, Investigations, Other Areas

Dave Tate, Esq. recent blog posts video

The following is an April 17, 2021 video that I am inserting into an email in which I have included links to recent blog posts:

Best to you. David Tate, Esq. (and inactive CPA)

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Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My two blogs are:

Business, D&O, audit committee, governance, compliance, etc. http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only

Litigation, Disputes, Mediator & Governance: Business, Trust/Probate, Real Property, Governance, Elder Abuse, Workplace, Investigations, Other Areas

BATNA doesn’t get you to settlement or resolution – instead, looking for answers does –

BATNA is an acronym that stands for Best Alternative To a Negotiated Agreement. It is defined as the best or most advantageous alternative that a negotiating or mediating party can take or has if negotiations and reaching settlement or resolution are failing or are not moving forward and if it is believed that settlement is breaking down cannot be reached. BATNA was presented in the book Getting to YES: Negotiating Agreement Without Giving In (first published in 1981), and it continues to be used as a consideration that a negotiating or mediating party can and should use when deciding whether or not to engage in negotiation or mediation, or whether or not to continue negotiating or mediating when things seem to have stalled or reached an impasse.

Whereas considering BATNA (i.e., why a party should negotiate or keep negotiating) is a good means of moving the parties or a party back from a precipice or position wherein negotiations or mediation breakdown or breakdown at least temporarily, BATNA doesn’t get you to settlement – instead, moving beyond or back from BANTA, being openminded, continuing to explore options, looking for answers, considering the negatives and unknowns, and moving forward toward resolution do move the parties toward settlement and resolution or at least in part on some of the issues.

Thus, the parties, and the mediator need to consider the toolbox of options, and approaches and ways for the parties to continue talking and moving forward from the current position and from their current positions toward resolution or resolutions.

Parties can move off of their positions – or can be willing or induced to move off of their positions, by any number of means, such as, for example:

Persuasion;

Moving within the or their perceived global range of options;

Expanding the or their global range of options;

Disclosing or making known more about or what was previously known about their global range of options;

Force or threat, so to speak;

Changed circumstances;

Optics or disclosure to or about outside stakeholders or influencers;

Additional examination, discovery, evidence or related information, documents, or disclosure;

Additional understanding about the applicable law, burdens of proof, and presumptions;

Additional information about the possible trier of fact; and

More – that is, the long list depends on the particular situation at issue.

Best to you. David Tate, Esq. (and inactive CPA)

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Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My two blogs are:

Business, D&O, audit committee, governance, compliance, etc. http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only

Litigation, Disputes, Mediator & Governance: Business, Trust/Probate, Real Property, Governance, Elder Abuse, Workplace, Investigations, Other Areas

Conservatorship of the Estate of Brokken – Probate Court could not award attorneys’ fees when a conservator was not appointed – plus Tate comments, and a video about mediating conservatorship disputes and cases

Conservatorship of the Estate of Brokken, California Court of Appeal, Second Appellate District Division Six (March 15, 2021) 2d Civ. No. B303898 (Super. Ct. No. 17PR00194) (Santa Barbara County).

Summary. A petition for the conservatorship of Doris Mae Brokken was filed by her adult children over Doris’ strong objection. It was alleged that Doris suffered from ongoing mental health issues and that her behavior had become increasingly erratic. After two years of litigation and negotiation, the parties settled the matter without the need for a conservatorship. Doris voluntarily agreed to engage in professional mental health services and the petition was dismissed. The petitioners sought to recover their attorney fees as part of the settlement. Doris did not believe they were legally entitled to fees, but to facilitate settlement, she agreed to let the Probate Court decide whether the petitioners are entitled to fees and, if so, the amount of such fees. Petitioners filed a petition requesting the Probate Court to award them attorneys’ fees under Cal. Probate Code §2640.1. Doris opposed the petition. The Court awarded attorneys’ fees. Doris appealed the Court’s decision. On appeal, the Court of Appeal held that petitioners could not petition for an award of attorneys’ fees because no conservator (temporary or permanent) was appointed, and that §2640.1 applied, if at all, only if a conservator is appointed.

I have pasted copies of both Probate Code §§2640.1 and 2640 below.

Takeaway. Brokken is both legally and factually specific. The case does highlight one of the risks that a petitioner takes when filing a petition for conservatorship, i.e., attorneys’ fees incurred. The petitioners would have been able to petition for the recovery of attorneys’ fees if a temporary or permanent conservator was appointed; however, even in that circumstance the Court would have had discretion over the amount of fees to award. An additional difficulty for the petitioners was that Doris would not agree to the recovery of attorneys’ fees in the settlement agreement.  

If Doris had agreed to the recovery of attorneys’ fees in the settlement agreement, and if a petition for Court approval of the settlement agreement had been filed, would the Court have approved the attorneys’ fees? We don’t know. However, and assuming that the settlement agreement did not specify the fees pursuant to §2640.1, my view is that the Court probably would have approved the settlement because the fees would have been agreed upon in the settlement agreement which is a contract.

If Doris had agreed to the recovery of attorneys’ fees in the settlement agreement, but then suit had to be brought to enforce the settlement agreement, would the Court have enforced the payment of attorneys’ fees? Again, we don’t know. However, and assuming that the settlement agreement did not specify the fees pursuant to §2640.1, again my view is that the Court probably would have enforced payment of the fees because the fees would have been agreed upon in the settlement agreement which is a contract.

There are a lot of moving parts in a conservatorship case. You will find other posts about conservatorships in this blog. Here is a link to a copy of a video about mediating conservatorship disputes and cases https://californiaestatetrust.com/2020/08/15/video-you-can-resolve-and-settle-your-convervatorship-dispute-and-case-dave-tate-esq-litigation-disputes-and-mediator-california/

Below I have pasted copies of both Probate Code §§2640.1 and 2640.

California Probate Code §2640.1

(a) If a person has petitioned for the appointment of a particular conservator and another conservator was appointed while the petition was pending, but not before the expiration of 90 days from the issuance of letters, the person who petitioned for the appointment of a conservator but was not appointed and that person’s attorney may petition the court for an order fixing and allowing compensation and reimbursement of costs, provided that the court determines that the petition was filed in the best interests of the conservatee.

(b) Notice of the hearing shall be given for the period and in the manner provided in Chapter 3 (commencing with Section 1460) of Part 1.

(c) Upon the hearing, the court shall make an order to allow both of the following:

(1) Any compensation or costs requested in the petition the court determines is just and reasonable to the person who petitioned for the appointment of a conservator but was not appointed, for his or her services rendered in connection with and to facilitate the appointment of a conservator, and costs incurred in connection therewith.

(2) Any compensation or costs requested in the petition the court determines is just and reasonable to the attorney for that person, for his or her services rendered in connection with and to facilitate the appointment of a conservator, and costs incurred in connection therewith.

Any compensation and costs allowed shall be charged to the estate of the conservatee. If a conservator of the estate is not appointed, but a conservator of the person is appointed, the compensation and costs allowed shall be ordered by the court to be paid from property belonging to the conservatee, whether held outright, in trust, or otherwise.

(d) It is the intent of the Legislature for this section to have retroactive effect.

(Amended by Stats. 2006, Ch. 493, Sec. 28. Effective January 1, 2007.)

California Probate Code §2640

(a) At any time after the filing of the inventory and appraisal, but not before the expiration of 90 days from the issuance of letters or any other period of time as the court for good cause orders, the guardian or conservator of the estate may petition the court for an order fixing and allowing compensation to any one or more of the following:

(1) The guardian or conservator of the estate for services rendered to that time.

(2) The guardian or conservator of the person for services rendered to that time.

(3) The attorney for services rendered to that time by the attorney to the guardian or conservator of the person or estate or both.

(b) Notice of the hearing shall be given for the period and in the manner provided for in Chapter 3 (commencing with Section 1460) of Part 1.

(c) Upon the hearing, the court shall make an order allowing (1) any compensation requested in the petition the court determines is just and reasonable to the guardian or conservator of the estate for services rendered or to the guardian or conservator of the person for services rendered, or to both, and (2) any compensation requested in the petition the court determines is reasonable to the attorney for services rendered to the guardian or conservator of the person or estate or both. The compensation allowed to the guardian or conservator of the person, the guardian or conservator of the estate, and to the attorney may, in the discretion of the court, include compensation for services rendered before the date of the order appointing the guardian or conservator. The compensation allowed shall be charged to the estate. Legal services for which the attorney may be compensated include those services rendered by any paralegal performing legal services under the direction and supervision of an attorney. The petition or application for compensation shall set forth the hours spent and services performed by the paralegal.

(d) Notwithstanding subdivision (c), the guardian or conservator shall not be compensated from the estate for any costs or fees that the guardian or conservator incurred in unsuccessfully opposing a petition, or other request or action, made by or on behalf of the ward or conservatee, unless the court determines that the opposition was made in good faith, based on the best interests of the ward or conservatee.

(e) Notwithstanding subdivision (c), the guardian, conservator, or attorney shall not be compensated with any government benefits program moneys unless deemed by the court as necessary to sustain the support and maintenance of the ward or conservatee, but in no event may this exceed the amount permitted by federal laws and regulations.

(Amended by Stats. 2019, Ch. 847, Sec. 6. (SB 303) Effective January 1, 2020.)

Best to you. David Tate, Esq. (and inactive CPA)

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Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My two blogs are:

Business, D&O, audit committee, governance, compliance, etc. http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only

Litigation, Disputes, Mediator & Governance: Business, Trust/Probate, Real Property, Governance, Elder Abuse, Workplace, Investigations, Other Areas

If Your Estate Or Trust Holds Difficult To Value Assets – Get Your Valuation Experts In Order (Slide)

View the above jpg, or click on the below link for a more clear view.

Best to you. David Tate, Esq. (and inactive CPA)

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Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My two blogs are:

Business, D&O, audit committee, governance, compliance, etc. http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only

Litigation, Disputes, Mediator & Governance: Business, Trust/Probate, Real Property, Governance, Elder Abuse, Workplace, Investigations, Other Areas

 

Are California SNFs Prepared For Variants To The Extent Possible – See France’s Situation

Below is a link that I saw this morning, from Reuters discussing France’s increasing difficulties with the UK COVID variant. This and other variants are already in California (pursuant to news reports).

This falls under the categories of risk management, health and safety, compliance, and governance, and potentially litigation and liability, internal controls and processes, internal investigations, and mediation/mediator and dispute or conflict resolution.

It is appropriate to ask and determine: are and how are California SNFs prepared for the variants to the extent possible? And this is and will remain an ongoing issue that will develop and and change over time, and is always present under infectious controls. These are issues not just for individual SNFs to deal with, but also for government executives and legislators, regulatory agencies, SNF and health care professionals and organizations, nursing home residents, resident family members and family councils, and other people and stakeholders.

Here’s the link: https://mobile.reuters.com/article/amp/idUSKBN2AE0EX?__twitter_impression=true&s=09

Best to you, Dave Tate, Esq.

Comments about Britney Spears’ conservatorship following the February 11 hearing . . .

As you might be aware, it is still very difficult for the public to obtain information about the proceedings in the Spears conservatorship. That fact is unusual as the general rule is that court proceedings are supposed to be, and are required to be open to the public, unless there is very good reason for some, or all, of the proceeding to not be open. Court proceedings are open to the public unless the Court makes a ruling otherwise. But, again, the presumption and legal principle that a court proceeding will be open to the public is very strong.

My understanding, based on what I have been able to read, is that following the February 11, hearing, Bessemer Trust and Jamie Spears remain as co-conservators of the estate, apparently with equal shared powers and authority. And that Jodi Montgomery remains as the conservator of the person.

This conservatorship is an ongoing saga. Current primary issues appear to include at least the following:

Will the conservatorship of the estate continue as it is, or be modified, or be terminated?

Will Jamie Spears continue as co-conservator of the estate as it is, or will his powers and authorities be modified, or will his appointment as co-conservator of the estate be terminated?

How will Bessemer Trust and Jamie Spears be able to work together as co-conservators of the estate? Will they be able to work together?

How much weight will the Court give to the requests for changes in the conservatorship that are being made by Britney Spears?

Will any of the issues and orders at the trial Court level be taken up on appeal?

And, perhaps, will the conservatorship of the person continue as it is, or be modified, or be terminated?

The following are a few additional observations:

Generally, conservators are required to communicate with the conservatee and to ask her about her wishes on important matters. However, that doesn’t bind the conservator to the conservatee’s wishes. The Court also should take the conservatee’s wishes into consideration.

Less restrictive options to the conservatorship and to the terms of the conservatorship must be taken into consideration by the Court and the parties. A conservatorship is a restriction on the rights of the conservatee.

On some issues the conservatee is entitled to a jury trial. Otherwise, the Judge has very significant authority to decide issues in a conservatorship, but those decisions must be made based on and in accordance with the applicable laws, the various burdens of poof that might apply, the standards of decision making that might apply (e.g., preponderance of the evidence or some higher standard), and the evidence.

Unless the court orders otherwise, if two co-conservators are ordered, the two co-conservators both must “concur” to exercise a power. Cal. Probate Code §2105. Other than whether either or both of the conservatorships of the estate and of the person will continue, or be modified, or be terminated, I would view the interactions between Bessemer Trust and Jamie Spears as probably being the most difficult and pressing issue. News reports indicate or suggest that there are ongoing disagreements over co-conservator scope of authority and possibly co-conservator decision making and ability to agree. Disagreements of those types could prompt the Court to make changes to its co-conservator order. See, e.g., Cal. Probate Code §§2105.5, and Chapter 9 including §2650, in addition to other Probate Code sections.

Best to you. David Tate, Esq.