What is “mild cognitive impairment”? – forwarding a post by Dr. Mikol Davis and Carolyn Rosenblatt

I am forwarding below a link to a post by Dr. Mikol Davis and Carolyn Rosenblatt in which they discuss mild cognitive impairment (“MCI”). In my will and trust contest and financial elder abuse cases it is not uncommon for there to be issues relating to cognitive impairment, weakness or limitation vulnerabilities. In Court these can present challenging legal, evidentiary, and burden of proof issues. See also, for example, California Probate Code §86, and California Welfare & Institutions Code §15610.70 relating to undue influence, which are also copied and pasted below (and you should also note that additional statutes and case law pertain to these issues).

Thanks for reading. Best to you, David Tate, Esq.

The following is the link to the post by Dr. Mikol Davis and Carolyn Rosenblatt at aginginvestor.com:

https://www.aginginvestor.com/blog/what-is-mild-cognitive-impairment/?inf_contact_key=92cb029f002eadfe0044d6a1379ef77b1190ab49470cf8074c7b0b733b9b30c7

The following are California Probate Code §§86 and 15610.70:

California Probate Code §86

“Undue influence” has the same meaning as defined in Section 15610.70 of the Welfare and Institutions Code. It is the intent of the Legislature that this section supplement the common law meaning of undue influence without superseding or interfering with the operation of that law.

California Welfare & Institutions Code §15610.70

(a) “Undue influence” means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity. In determining whether a result was produced by undue influence, all of the following shall be considered:

(1) The vulnerability of the victim. Evidence of vulnerability may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability.

(2) The influencer’s apparent authority. Evidence of apparent authority may include, but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification.

(3) The actions or tactics used by the influencer. Evidence of actions or tactics used may include, but is not limited to, all of the following:

(A) Controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep.

(B) Use of affection, intimidation, or coercion.

(C) Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes.

(4) The equity of the result. Evidence of the equity of the result may include, but is not limited to, the economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship.

(b) Evidence of an inequitable result, without more, is not sufficient to prove undue influence.

* * * * *

Advertisements

John Trasviña for San Francisco School Board – I endorse John

I seldom get publicly involved in politics, but this time I am, and I endorse John Trasviña for the San Francisco School Board. Below I have provided a link to the website for John Trasviña in his run for the San Francisco School Board.

John would make a tremendous San Francisco School Board member. John’s San Francisco roots are deep. John attended San Francisco public schools while growing up, and John is experienced with San Francisco public schools. John has also served as a San Francisco Deputy City attorney, he was Dean of the University of San Francisco School of Law, and he was President Obama’s Assistant Secretary for Fair Housing & Equal Opportunity and President Clinton’s special counsel for immigrant workplace rights at the US Department of Justice. Obviously, John also understands how to run an organization and a school, governmental processes, and budgeting.

John cares about people, young people, students, and education, he is very approachable and good interacting with people of diverse backgrounds about challenging and difficult issues, and he is very good at dealing with issues and making improvements. John stands for excellence in education and opportunities for everyone. I endorse John for San Francisco School Board.

For information I am providing you with the link to John’s website. I ask that you also click on the About, Issues, Donate, and Endorsements links. The following is the link to John Trasviña’s website for San Francisco School Board https://www.johnforsf.com/

Thank you, David Tate

Consumer Financial Protection Bureau – Recommendations for financial institutions on preventing and responding to elder financial exploitation – to my connections – was something like this ever mandated or adopted as best practices?

I came across a March 2016, “Recommendations and report for financial institutions on preventing and responding to elder financial exploitation” prepared by the Consumer Financial Protection Bureau. The following is a link to the lengthy report, https://www.consumerfinance.gov/data-research/research-reports/recommendations-and-report-financial-institutions-preventing-and-responding-elder-financial-exploitation/

Many of the recommendations are worthwhile, particularly beginning with the recommendations on pages 12-57. I would like to know more about the steps or processes that financial institutions are taking to prevent and respond to financial elder abuse and exploitation, including elective best practices, and if there are requirements that are mandated by statute, regulation, rule, etc. I am particularly interested in financial institutions that are located in California, but practices or requirements outside of California are also of interest.

Thank you for your response – any information that you have is appreciated. If you wish, you can also respond to me by email at dtate@rroyselaw.com

Thank you, and best to you. David Tate, Esq.

Unpacking Undue Influence – forwarding a CEJC blog post by Mary Joy Quinn

Below I have provided a link to a recent post by Mary Joy Quinn on the California Elder Justice Coalition blog. The post in part discusses aspects of undue influence as viewed in the court system and also a possible undue influence screening tool. The post by Ms. Quinn is a worthwhile read.

The following is a quote from the post:

“The case review of 25 newly established conservatorships revealed that 88% of the people lacked judgment and insight.  Influencers were family, friends, and neighbors in the bulk of cases.  In 13% of cases, romantic partners were the influencers while telemarketers or lottery scammers were influencers in 20% of the cases.  The most common type of abuse was financial abuse, either cash or real estate, that could not be remedied without a conservatorship.  Tactics included playing on weakness of the victim, lying and deception, and repeated solicitations.”  

And below is a link to the blog post by Ms. Quinn. Thank you for reading. David Tate, Esq.

https://www.elderjusticecal.org/blog/unpacking-undue-influence

Paper from California Trustee and Beneficiary Responsibilities and Rights Presentation

Below is a link to my paper discussing California trustee and beneficiary responsibilities and right presentation – click the link for the paper and please also pass it along to other people who would be interested. Note: the paper does not provide legal advice, is not a solicitation for services, and every situation is different – you should consult with an attorney for your particular situation. Wishing you the best, David Tate, Esq.

Here is the link to the paper: A Summary of California Trustee and Beneficiary Responsibilities and Rights Dave Tate Esq for 05242018 presentation

Below is a screen shot of the paper discussion areas:

 

David Tate Presentation About Trustee and Beneficiary Responsibilities and Rights, and Contentious Trust Administrations and Other Situations (May 24, 2018)

Attend My Upcoming Presentation About Trustee and Beneficiary Responsibilities and Rights, and Contentious Trust Administrations and Other Situations

Date: May 24, 2018

Time: 6:00 P.M. – 7:45 P.M.

Location: Royse Law Firm, PC, 149 Commonwealth Drive, Ste. 1001, Menlo Park, CA 94025, (650) 813-9700

I will be presenting a discussion about California trustee and beneficiary responsibilities and rights, and contentious trust administrations on May 24, 2018, from 6 p.m. to 7:45 p.m., at the Royse Law Firm, PC, at 149 Commonwealth Drive, Ste. 1001, Menlo Park, CA 94025, (650) 813-9700. The presentation is free. At the bottom of this post I have provided a link to register if you would like to attend. Please also tell other people who would be interested. The presentation and handout are detailed, but the discussion is primarily directed toward non-lawyers and other people who are not experts in the subject areas.

The presentation covers the following primary topic areas. Many of the discussion areas also apply to wills and estates:

  1. Overview of trust interpretation, responsibilities and rights
  2. Investments and management
  3. Accountings and information
  4. Uncertainties and disputes
  5. Additional select trust, estate, elder, and planning issues depending on the attendees, such as conservatorships, elder abuse, powers of attorney, mental capacity, transfers to prohibited people, when a trustor dies, planning, etc.

Please click on the following link for additional detail and to register to attend the presentation, and please also tell other people who would be interested: https://www.eventbrite.com/e/trustees-beneficiaries-responsibilities-rights-and-handling-disputes-tickets-44921355985

 

Widow’s $500K lawsuit the latest battle over Glen Campell’s estate

Classic divided family post-death issues – a will contest including allegations of lack of mental capacity and possibly undue influence, in addition to a request for reimbursement of pre-death care, medical and other expenses. Click on the link below for the article.

https://www.yahoo.com/entertainment/battle-glen-campbells-estate-whos-whos-whos-suing-222503944.html