Summary of California Trustee and Beneficiary Responsibilities and Rights, and Handling Contentious Trust Administrations and Other Family Situations (PPT slides saved as PDF)

The following is a link to a PDF of my PowerPoint slides for a Summary of California Trustee and Beneficiary Responsibilities and Rights, and Handling Contentious Trust Administrations and Other Family Situations: David Tate, Esq. – Summary of California Trustee and Beneficiary Responsibilities and Rights 02252020 Slides Saved as PDF

And below is a snapshot of page 1 of the slides. Best to you, Dave Tate, Esq.

 

 

When do you not have the right to remain silent in conservatorship proceedings (Weintraub Tobin) – with Tate’s comments added

I have provided below a link to a Weintraub Tobin post about conservatorship proceedings and when a conservatee or prospective conservatee might have or might not have the right to remain silent (i.e., the right to not be compelled to testify). The post references Conservatorship of Bryan S. which was a LPS conservatorship; however, some of the same arguments might also be made in regular or general conservatorship proceedings.

A conservatorship proceeding is a state action in which the court is petitioned to order that there be a limitation on the conservatee’s freedom of choice or decision making, and in some circumstances the conservatee’s personal freedom of movement, or of living condition, or of right to not be medicated.

This post by Weintraub is also timely in light of the State of California’s initiative to use conservatorship proceedings more often.

As noted, in Conservatorship of Bryan S. the Court held that the prospective conservatee did not have the right to refuse to testify unless the questions and the answers thereto may incriminate the prospective conservatee in a criminal matter – and that question or issue, i.e., about possible incrimination, could be relevant for consideration in at least some conservatorship proceedings. And I also note that Conservatorship of Bryan S. involved only one Court of Appeals – other Court of Appeals might differ and at some point this issue might be brought up to the California Supreme Court.

You can find other posts about conservatorship proceedings throughout this blog – in the search box type in the word conservatorship.

The following is a link to the Weintraub Tobin discussion: https://www.weintraub.com/blogs/when-do-you-not-have-the-right-to-remain-silent-conservatorship-proceedings-and-equal-protection-clause-claims

—————————————————————

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.

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

I am also the Chair of the Business Law Section of the Bar Association of San Francisco.

Blogs: Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com; Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

Status Of The California State Auditor’s Recommendations To Improve Oversight Of Substandard Nursing Home (SNF) Quality Of Care – Nothing Has Been Implemented? – And What About ESG And/Or GRC?

On occasion I look at the website of the California State Auditor. The Auditor audits State of California agencies and State of California programs that pay or distribute money to other organizations or entities. The Auditor also provides status updates relating to its recommendations.

Quite a while ago (it looks like 2018) the Auditor made some recommendations to improve oversight of substandard nursing home (SNF) conditions. Nursing homes are highly regulated by both federal and California statutes and regulations, although those statutes and regulations proscribe only minimum levels of care and for only those areas for which the statutes and regulations have been enacted.

Some nursing homes meet, or sometimes exceed, the minimum requirements, whereas other nursing homes fail to meet some or all of the minimum requirements.

Based on my experience in nursing home cases (suing on behalf of residents and their families for improper care and elder abuse) and as a past board member of a county Long-Term Care Ombudsman Services program, and based on observations and comments by other people for many years, it has long been clear that residents are better cared for when the care and daily living conditions that they are provided, and that they are not provided, and detailed documentation of those matters, are and can be observable and obtained by family members, friends, family councils, Ombudsman Services, and other outside stakeholders and interested people.

Everyone would agree that nursing home residents individually and as a group are vulnerable and are dependent on other people for their health, care, and well-being. So I came across the below status update by the California State Auditor about recommendations (apparently made in 2018) for improved oversight of substandard nursing home conditions, and it is with great disappointment that apparently none of the recommendations have actually come to be.

I have provided below a link to the Auditor’s status update report, and snapshots of the report (please note that the length of the report really is too long for a good single snapshot so I have divided the report into the three snapshots that I have provided below (the snapshots are one after the other just as they appear in the Auditor’s report), and you can also click on the below link).

And I add, briefly, where do ESG (environmental, social, and governance) reporting and expectations come into play and requirement for nursing homes. I’m not seeing that it is required. Or a prior acronym that mostly isn’t used anymore but which would also be relevant for nursing home care and its oversight: GRC or governance, risk, and compliance. Nothing of the sort will become implemented or voluntarily standard for nursing homes and other providers of care and services to elders, dependent adults, and other people with disabilities unless there is interest and push by their family members, friends, stakeholders, and other people and organizations.

Best to you, Dave Tate, Esq.

Here is the link to the California State Auditor’s status report http://www.bsa.ca.gov/reports/recommendations/2017-109

And below are the best that I could do for snapshots of the report:

—————————————————————

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.

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

I am also the Chair of the Business Law Section of the Bar Association of San Francisco.

Blogs: Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com; Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

Barefoot v. Jennings, Supreme Court of California (January 23, 2020), Standing Under Cal. Probate Code §17200, and More . . .

Barefoot v. Jennings, Supreme Court of California (January 23, 2020), S251574, 2020 WL 372523

Summary and Holding: (1) Settlor Maynord executed eight amendments (amendment numbers 17 through 24) to the trust through which petitioner’s/plaintiff’s share of the trust as set out in the 16th amendment was eliminated; (2) the Court held that petitioner/plaintiff, an ex-beneficiary, has standing to bring an action under Cal. Probate Code §17200 to challenge the validity of the trust amendments where she alleges that the amendments that disinherited her were invalid because Maynord was incompetent to make the amendments; the amendments were the product of respondents’/defendants’ undue influence; and the amendments were the product of respondents’/defendants’ fraud; (3) §17200 allows a trustee or a beneficiary to petition the Court; (4) petitioner/plaintiff had standing under §17200 because although she is not currently a beneficiary, she would or will be a beneficiary if her allegations are proven.

The following are my initial comments:

  1. I don’t understand why the Court went down this path – petitioner already had standing to challenge or contest the trust amendments under her three theories (lack of mental capacity, undue influence, and fraud) – §17200 wasn’t necessary to provide petitioner with standing. Nevertheless, the holding is as it is.
  2. Allegations of lack of mental capacity, undue influence, and fraud can or might trigger a no contest clause – does bringing the action under §17200 in some manner change (lower or eliminate) that argument? See also footnote 3 in this regard.
  3. It is interesting that since petitioner was provided benefits under the 16th amendment, she had to argue that the 17th through 24th amendments are all invalid.
  4. The Court’s decision is not based on the Legislative intent – I would have thought that it would be, or at least that the Court would have thought that the Legislative intent would be relevant.
  5. In its decision the Court specifically declines to discuss or interpret Cal. Probate Code §850. That would have been an interesting discussion as I have had cases involving allegations pertaining to §850 (and §859) and when someone has standing or not – there is almost no case law on this topic although there is Legislative history. For example, one provision of §850 provides that in particular circumstances a trustee or an interested person has standing to bring a petition – but absent case law, I would not view “interested person” under §850 as being the same as “beneficiary” in the context of the Barefoot v. Jennings discussion under §17200.
  6. The Court’s decision is of interest for additional reasons, including, for example, the Court’s affirmation that in construing a trust the Court’s primary duty is to give effect to the settlor’s intentions, and the Probate Court has extremely broad power and authority to apply equitable and legal principles in order to assist its function as a Probate Court, and is given broad jurisdiction over practically all controversies that might arise between trustees and those claiming to be beneficiaries of the trust (including to preserve trust assets and the rights of all purported beneficiaries while the Court adjudicates the standing issue).

We can expect that more decisions will be forthcoming relating to the impact of the holding in Barefoot v. Jennings, potential issues that I have discussed above, standing under §17200, and the entirety of §850, et seq.

You can click on the following link for a copy of Barefoot v. Jennings Barefoot v Jennings California Supreme Court

—————————————————————

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.

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

I am also the Chair of the Business Law Section of the Bar Association of San Francisco.

Blogs: Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com; Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Probate Court Disputes and Litigation

  • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries and beneficiaries; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business and Business-Related Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; and Nonprofit Entities

  • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
  • Misappropriation of trade secrets
  • M&A disputes
  • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes
  • Buy-sell disputes
  • Funding and share dilution disputes
  • Accounting, lost profits, and royalty disputes and damages
  • Access to corporate and business records disputes
  • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations and Governance

  • Corporate and business internal investigations
  • Board, audit committee and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.

The following are copies of the tables of contents of three of the more formal materials that I have written over the years about accounting/auditing, audit committees, and related legal topics – Accounting and Its Legal Implications was my first formal effort, which resulted in a published book that had more of an accounting and auditing focus; Chapter 5A, Audit Committee Functions and Responsibilities, for the California Continuing Education of the Bar has a more legal focus; and the most recent Tate’s Excellent Audit Committee Guide (February 2017) also has a more legal focus:

Accounting and Its Legal Implications

Chapter 5A, Audit Committee Functions and Responsibilities, CEB Advising and Defending Corporate Directors and Officers

Tate’s Excellent Audit Committee Guide

The following are other summary materials that you might find useful:

OVERVIEW OF A RISK MANAGEMENT PROCESS THAT YOU CAN USE 03162018

Audit Committee 5 Lines of Success, Diligence, and Defense - David Tate, Esq, 05052018

COSO Enterprise Risk Management Framework ERM Components and Principles

From a prior blog post which you can find at https://wp.me/p75iWX-dk if the below scan is too difficult to read:

* * * * *

New Case Holding: Will Provisions Override Account Ownership Provisions

—————————————————————

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.

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

I am also the Chair of the Business Law Section of the Bar Association of San Francisco.

Blogs: Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com; Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Probate Court Disputes and Litigation

  • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries and beneficiaries; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business and Business-Related Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; and Nonprofit Entities

  • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
  • Misappropriation of trade secrets
  • M&A disputes
  • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes
  • Buy-sell disputes
  • Funding and share dilution disputes
  • Accounting, lost profits, and royalty disputes and damages
  • Access to corporate and business records disputes
  • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations and Governance

  • Corporate and business internal investigations
  • Board, audit committee and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.

The following are copies of the tables of contents of three of the more formal materials that I have written over the years about accounting/auditing, audit committees, and related legal topics – Accounting and Its Legal Implications was my first formal effort, which resulted in a published book that had more of an accounting and auditing focus; Chapter 5A, Audit Committee Functions and Responsibilities, for the California Continuing Education of the Bar has a more legal focus; and the most recent Tate’s Excellent Audit Committee Guide (February 2017) also has a more legal focus:

Accounting and Its Legal Implications

Chapter 5A, Audit Committee Functions and Responsibilities, CEB Advising and Defending Corporate Directors and Officers

Tate’s Excellent Audit Committee Guide

The following are other summary materials that you might find useful:

OVERVIEW OF A RISK MANAGEMENT PROCESS THAT YOU CAN USE 03162018

Audit Committee 5 Lines of Success, Diligence, and Defense - David Tate, Esq, 05052018

COSO Enterprise Risk Management Framework ERM Components and Principles

From a prior blog post which you can find at https://wp.me/p75iWX-dk if the below scan is too difficult to read:

* * * * *

Power of Attorney / Attorney in Fact Responsibilities and Rights – Slides 13, 14, 15 and 16

I seldom see discussions about power of attorney, principal, and attorney-in-fact responsibilities and rights. I am providing some of my power of attorney presentation slides. Click on the following links for my three prior posts containing my slide numbers 3, 4, and 5 https://wp.me/p1wbl8-tK, slide numbers 6, 7, and 8 https://wp.me/p1wbl8-u5, and slide numbers 9, 10, 11, and 12 https://wp.me/p1wbl8-uj. Below in this post I have provided slide numbers 13, 14, 15, and 16, which are the remaining slides that I am posting.

You should note, obviously these slides are a summary of what can be a complicated area of law and specific facts, they are not a solicitation for services inside or outside of California, and they do not pertain to any particular situation or to you and your situation. You need to consult with an appropriate professional for your specific situation.

Best to you, Dave Tate, Esq. (California)

Blogs:

 

 

 

Power of Attorney / Attorney in Fact Responsibilities and Rights – Slides 9, 10, 11 and 12

I seldom see discussions about power of attorney, principal, and attorney-in-fact responsibilities and rights. I am providing some of my power of attorney presentation slides. Click on the following links for my two prior posts containing my slide numbers 3, 4, and 5 https://wp.me/p1wbl8-tK and slide numbers 6, 7, and 8 https://wp.me/p1wbl8-u5. Below in this post I have provided slide numbers 9, 10, 11, and 12. Slide numbers 13, 14, 15, and 16 will be provided in a subsequent post.

You should note, obviously these slides are a summary of what can be a complicated area of law and specific facts, they are not a solicitation for services inside or outside of California, and they do not pertain to any particular situation or to you and your situation. You need to consult with an appropriate professional for your specific situation.

Best to you, Dave Tate, Esq. (California)

Blogs: