Working on Slides and a Video – You Can Resolve and Settle Your Conservatorship Dispute, Issues and Case

Dave Tate, Esq. (San Francisco and California) – dave@tateattorney.com – Litigation, Governance, Administrations, Investigations, Mediator & Conflict Resolution

Greetings All: I am working on some materials (slides and an anticipated video) which I have titled: You Can Resolve and Settle Your Conservatorship Dispute, Issues and Case. I am aiming for the materials will be completed by the beginning of next week.

In a conservatorship there are a lot of potential moving parts and issues, and relationships, and they can be present before the initiation of a conservatorship petition, during the initial petition stage, and at all later times including during review of a conservatorship that has been approved – for example, below are some of the potential moving parts, issues and relationships:

  • Are there options that are less restrictive than a conservatorship?
  • Is or will it be a conservatorship of the estate?
  • Is or will it be a conservatorship of the person?
  • Does the conservatee have or need an attorney?
  • Will it be a court trial or a jury trial?
  • Is who the conservator will be an issue?
  • Are there placement or housing issues?
  • Are there medical care and treatment, or related capacity issues?
  • Are there medication issues?
  • Are there daily living needs issues?
  • Are there caregiver issues?
  • Are there other issues re the proposed/conservatee’s capacity?
  • Are there conservator special power issues?
  • Who are all of the people who are involved in the dispute or unresolved issues?
  • Are there relationship issues between the people who are involved?
  • Are there spouse or domestic partner, or girlfriend or boyfriend issues?
  • Are there visitation issues?
  • Are there elder or dependent adult about issues – financial, physical, undue influence, emotional, abandonment, etc.?
  • Are there liquidity or sufficiency of assets issues?
  • Are there estate planning or benefits needs?
  • Are there voting issues?
  • Are there married or marrying issues?
  • What facts and circumstances and issues are fluid, i.e., changing (undoubtedly some are)?
  • What options are available for each of the issues that are in dispute or are unresolved?
  • And also consider the other areas, and related issues, from my mediation and conflict resolution hexagon matrix.

Best to you, Dave Tate, Esq. (San Francisco and California) – dave@tateattorney.com

Litigation, Governance, Administrations, Investigations, Mediator & Conflict Resolution

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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.

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 and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

      • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; 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, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental 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.
      • Insurance coverage and bad faith.
      • Access to corporate and business records disputes.
      • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

      • Corporate, business, nonprofit and governmental internal investigations.
      • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediator Services and Conflict Resolution

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More On Banks Taking Actions In Response To Suspected Or Actual Financial Elder Abuse

David W. Tate, Esq., San Francisco and California – dave@tateattorney.com

Below I have provided a link to an ABA Banking Journal article discussing bank efforts to protect order Americans from financial abuse.

In addition to other steps, the article states “When elder fraud is suspected, banks most commonly respond by flagging the account for further monitoring (82%), reporting the incident to adult protective services (81%) and closing existing accounts and opening new ones for the customer (68%).” The article also states that ” . . . an overwhelming majority of banks – 80% – said they place holds on suspicious transactions . . . . ”

The following is a snapshot of a paragraph in the article – discussing that “about half of the banks said they have procedures in place to offer the account-holders the opportunity to consent to have their account information disclosed to a designated financial caregiver.”

I have previously written some of my views about procedures for preventing, stopping, and remedying financial (and physical) elder abuse. Placing a hold on an account is a good temporary step to safeguard and preserve the account. Reporting the incident to adult protective services or another accepted organization is another good step and is required by law in many circumstances (California, for example, has mandated reporting requirements in circumstances that are described in the applicable statutes relating to financial abuse, and also for or relating to physical and other types of abuse – I have written about and presented talks on these topics). Encouraging an account holder to designate a trusted person who the bank can call when the bank sees suspicious activities also is a good step. And, of course, training on these topics should be ongoing.

All of the above actions are good first steps. Then the really hard and time consuming part starts, and it typically must involve good family members and friends as, given the large numbers of financial elder abuse, the banks, adult protective services, the district attorney’s offices, and the police do not have the resources to pursue most situations for the long haul. An elder typically believes that the perpetrator is a good and trustworthy person or business or other entity, and I can tell you that it is amazing how persistent a perpetrator of financial elder abuse can be – in situations where a typical person would willingly exit the situation or agree to restrictions and limitations, and even repayment, it can be amazing for how long a perpetrator of financial elder abuse will persist. And also be mindful that we have only been discussing bank situations and responses, whereas the great majority of financial elder abuse will not be visible to or noticed by a bank.

Below is a link to the complete article:

Survey: Banks Ramp Up Efforts to Protect Older Americans from Financial Abuse

Best to you, Dave Tate, Esq. (San Francisco and California) – dave@tateattorney.com

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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.

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 and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

      • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; 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, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental 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.
      • Insurance coverage and bad faith.
      • Access to corporate and business records disputes.
      • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

      • Corporate, business, nonprofit and governmental internal investigations.
      • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediator Services and Conflict Resolution

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Questions to Consider to Facilitate Dispute and Conflict Resolution – Dave Tate, Esq.

David W. Tate, Esq., San Francisco and California – dave@tateattorney.com

I have provided a link below to my paper “Questions to Consider to Facilitate Dispute and Conflict Resolution, and a snapshot of the paper’s first page. I have also provided below a link to a recent blog post with a short video summarizing my mediator services. Enjoy, and have a good day.  Dave Tate, Esq.

The following is a link to my paper “Questions to Consider to Facilitate Dispute and Conflict Resolution: QUESTIONS TO CONSIDER TO FACILITATE DISPUTE AND CONFLICT RESOLUTION, David Tate, Esq. 05242020

The following is a link to my blog post with a short video summarizing my mediator services: https://wp.me/p75iWX-x7

The following is a snapshot of the first page to my paper “Questions to Consider to Facilitate Dispute and Conflict Resolution:

 

Mediation and Conflict Resolution Hexagon Matrix to Help Achieve Resolution and Settlement

 

Best to you, Dave Tate, Esq. (San Francisco and California) – dave@tateattorney.com

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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.

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 and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

      • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; 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, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental 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.
      • Insurance coverage and bad faith.
      • Access to corporate and business records disputes.
      • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

      • Corporate, business, nonprofit and governmental internal investigations.
      • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediator Services and Conflict Resolution

* * * * *

Mediation and Conflict Resolution Hexagon Matrix to Help Achieve Resolution and Settlement – Dave Tate, Esq.

David W. Tate, Esq., San Francisco and California – dave@tateattorney.com

I have found that obtaining the best understanding from and about the parties and stakeholders with respect to their views pertaining to the six primary areas that are identified in my mediation and conflict resolution hexagon matrix will greatly increase the likelihood of reaching a resolution and settlement. Of course there are sub-parts to each of the six areas – however, the hexagon matrix does help to provide focus.

Best to you, Dave Tate, Esq. (San Francisco and California) – dave@tateattorney.com

———————————————————————-

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 and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

      • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; 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, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental 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.
      • Insurance coverage and bad faith.
      • Access to corporate and business records disputes.
      • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

      • Corporate, business, nonprofit and governmental internal investigations.
      • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediator Services and Conflict Resolution

* * * * *

Dave Tate, Esq. – expanding my mediator and conflict resolution part of the practice – video

David W. Tate, Esq., San Francisco and California – dave@tateattorney.com

To all of my friends, colleagues and connections – I am expanding my mediator and conflict resolution practice, and, as you see below, continuing to experiment with video. Below is a video discussing my mediator and conflict resolution qualifications and experience. The goal is to make the mediator and conflict resolution engagements up to 20% or so of my practice. The remainder of my practice will remain the same – heavy duty litigation and trials, governance, administrations, and investigations. Thank you, and please do pass the word to people who would be interested.

Best to you, Dave Tate, Esq. (San Francisco and California) – dave@tateattorney.com

———————————————————————-

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 and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

      • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; 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, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental 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.
      • Insurance coverage and bad faith.
      • Access to corporate and business records disputes.
      • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

      • Corporate, business, nonprofit and governmental internal investigations.
      • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediator Services and Conflict Resolution

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Independence Of Government Department As Investigator And Attorney General As Counsel Raised (In This Example – In Regard To The NY Nursing Home Investigation)

I am forwarding this post from my other blog: http://auditcommitteeupdate.com

David W. Tate, Esq., San Francisco and California – dave@tateattorney.com

Investigator independence or lack of conflict of interest, and the independence or lack of conflict of interest of legal counsel representing the investigator are important and can carry significant legal ramifications, in addition to the optics that are presented and possible issues of investigation trustworthiness in the particular situation.

As I have written, these are issues that should be considered and vetted while initially forming the investigation team, and throughout the investigation as the issues and the situations that are being investigated, and the people and stakeholders who are at issue or who are involved can change and expand or grow.

See pasted below a snapshot of an article out of New York discussing an investigation of nursing homes that was recently ordered by the Governor. The investigation is being done by the state Health Department which is being represented by the Attorney General’s Office. Some people have questioned whether the Health Department and the Attorney General are the appropriate departments or offices to be involved in the investigation in this circumstance. In addition to the departments or offices that are involved, I will add that interpersonal relationships can also be or become an issue.

While the Health Department certainly is an appropriate department to conduct a nursing home investigation, and the Attorney General’s Office appropriately represents the Health Department, as it has been noted, in the current investigation it is possible that the policies of the Governor and/or the policies and procedures of the Health Department with respect to COVID-19 and nursing home residents might be or become in play. And as also noted, the situation could be akin to the investigator and its counsel investigating their own policies and procedures or those of their boss. These are issues or possible issues to consider in every investigation depending on the facts and circumstances of the particular situation, and as the fact and circumstances might change over time and during the course of the investigation.

Best to you, Dave Tate, Esq. (San Francisco and California) – dave@tateattorney.com

———————————————————————-

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 and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

      • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; 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, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental 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.
      • Insurance coverage and bad faith.
      • Access to corporate and business records disputes.
      • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

      • Corporate, business, nonprofit and governmental internal investigations.
      • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediations and Services as a Mediator

* * * * *

California Department of Public Health Monitors Some Nursing Home Resident COVID-19 Reporting – What Does It Mean, Do They Investigate, Prosecute? Forwarded From http://auditcommitteeupdate.com

David W. Tate, Esq., San Francisco and California – dave@tateattorney.com

The following post was originally made on my other blog at http://auditcommitteeupdate.com

I have provided below two snapshots from the California Department of Public Health’s website discussing and disclosing some information pertaining to nursing home resident COVID-19 cases and deaths, as reported to the Department by the nursing homes themselves. I took both snapshots today, May 9, 2020. I have also provided below a link to the Department’s website page pertaining to nursing home residence COVID-19.

The first snapshot contains the Department’s top-of-the-page introductory paragraphs, indicating that the information provided by the nursing homes is as of May 7, 2020, and describes how that information is reported. The second snapshot is a random snapshot of some of the information that is provided by the Department in the chart of information further down the Department’s page. Note that the actual chart does contain an additional column to the left which provides the name for each nursing home that is listed – I left that information off because it is not related to the purpose of this post, and because you can also find that information yourself if you would like.

Nursing home resident care, processes and procedures, risk management, and reporting are always of absolutely key importance, and are of even more deadly importance in this COVID-19 time. You will also find other prior elder care and nursing home related posts on this blog.

As indicated in the first snapshot, the information that the Department has and provides only is information that is reported by the nursing home facilities themselves to the best of each nursing home’s knowledge. The Department does not discuss the actual criteria or evaluation processes were used by each nursing home, the extent to which the information that has been provided is reliable, whether reliability is evaluated, or how reliability is evaluated if in fact it is. Thus, I would have to assume that the information is not comparable as between different nursing homes. And I would also have to assume that some of the information that has been provided is not accurate or does not satisfy whatever reporting requirements the Department communicated.

Regarding evaluation of compliance programs the U.S. Department of Justice Criminal Division, just as an example, lists three primary criteria, plus subparts:

I.  Is the Corporation’s Compliance Program Well Designed?

II.  Is the Corporation’s Compliance Program Being Implemented Effectively?

III.  Does the Corporation’s Compliance Program Work in Practice?

It would be legitimate to ask the above three questions of each nursing home and of the Department of Public Health with respect to resident care, processes and procedures, risk management, and reporting in this COVID-19 time. The following is a link to an earlier post discussing the Department of Justice’s guidelines for its evaluation of compliance programs: https://wp.me/p75iWX-nb

The first snapshot is provided immediately below. Snapshot two and comments about snapshot two are provided following the first snapshot.

Below is the second snapshot. As I have stated above, the actual chart on the Department’s page contains an additional column to the left which provides the nursing home’s name. Let’s look at the chart. First I noticed that while most nursing homes have provided information, throughout the chart and in the snapshot below, there are facilities for which the information is N/A, or, in other words, there is no information provided. I do not know why there is no information provided, but if I was the Department I would want to investigate the reason for each such facility, and most likely report the reason. And for each such facility I would also need to decide how to proceed on the issue of reporting and there being no information. Of the sixteen facilities in the snapshot below, two are N/A, which is 8% based on a random sampling.

Many nursing homes report no COVID-19 cases or deaths, which is good, but only if the information is reliable. The first column in the snapshot below lists the county in which the nursing home is located, the second column lists confirmed health care worker COVID-19 cases reported that day (May 7, 2020), the third column reports confirmed resident COVID-19 cases reported that day, the fourth column reports confirmed health care worker COVID-19-related deaths cumulative, and the fifth column lists confirmed resident COVID-19-related deaths cumulative. For unknown reason if there are occurrences but those occurrences are less than 11, the actual number of occurrences is not listed. You can view the information provided yourself and reach your own opinions. If you have a loved one in a nursing home you should also ask the facility the questions for which you want information.

You might also be interested, the following is a link to a recent short blog post about family councils: https://wp.me/p1wbl8-w0.  And you can find the Department’s COVID-19 page at https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/SNFsCOVID_19.aspx.

Best to you, Dave Tate, Esq. (San Francisco and California) – dave@tateattorney.com

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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.

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 and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

      • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; 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, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental 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.
      • Insurance coverage and bad faith.
      • Access to corporate and business records disputes.
      • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

      • Corporate, business, nonprofit and governmental internal investigations.
      • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediations and Services as a Mediator

* * * * *

 

May is Mental Health Month – Every Month Should Be

May is mental health month – every month should be. This is not a long blog post (I already wrote a post this morning about Caremark, CAMs and audit committees on my other blog, and I need to move to my cases) – this post is simply a comment or observation, and a link. I will be spending more time on this topic in the future, including about both physical and mental health and care including for seniors and dependent adults, and discussing nursing homes (SNF), assisted living facilities, and residential care facilities for the elderly (RCFE). The following is a link to a page from the website for Mental Health America that you might find thoughtful https://mhanational.org/mental-health-month (note that I have no affiliation with MHA or their materials – I’m simply passing materials along to you).

Take care in this challenging time. Best to you, Dave Tate, Esq. (San Francisco and California)

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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.

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 and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

      • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; 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, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental 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.
      • Insurance coverage and bad faith.
      • Access to corporate and business records disputes.
      • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

      • Corporate, business, nonprofit and governmental internal investigations.
      • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediations and Services as a Mediator

* * * * *

 

 

 

 

IT’S A GOOD TIME FOR NURSING HOME AND RESIDENTIAL CARE FACILITY FAMILY COUNCILS TO GET ACTIVE

California nursing homes and residential care facilities must permit, and assist, family councils. You can refer to California Health and Safety Code §§1418.4 and §1569.158. An active family council can be effective in improving care at the facility.

With respect to nursing homes, in relevant part, §1418.4(g) states that “The facility shall consider the views and act upon the grievances and recommendations of a family council concerning proposed policy and operational decisions affecting resident care and life in the facility,” and §1418.4(h) states that “The facility shall respond in writing to written requests or concerns of the family council, within 10 working days.”

And with respect to residential care facilities, in relevant part, §1569.158(f) states “If a family council submits written concerns or recommendations, the facility shall respond in writing regarding any action or inaction taken in response to the concerns or recommendations within 14 calendar days.”

The above wording is very broad as to the types of issues, grievances, concerns and recommendations that a family council might consider and raise with the facility.

Thus, for example, obviously facilities should have already reviewed their policies and procedures to prevent, minimize and remedy illnesses at the facility. Click on the following link  https://wp.me/p1wbl8-vG for my blog post entitled “An illness spreads through a nursing home . . . some of the possible issues and legal issues to evaluate . . .”

1.  Is the risk management and compliance program well designed, and how does the facility know that?

2.  Is the risk management and compliance program being implemented effectively, and how does the facility know that?

3.  Does the risk management and compliance program work in practice, and how does the facility know that?

Obviously the above 3 points are major considerations for which the facility would need to effectively and extensively drill down into the details.

Best to you, Dave Tate, Esq. (San Francisco and California)

———————————————————————-

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 and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

      • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; 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, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental 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.
      • Insurance coverage and bad faith.
      • Access to corporate and business records disputes.
      • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

      • Corporate, business, nonprofit and governmental internal investigations.
      • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediations and Services as a Mediator

* * * * *

 

California Department of Insurance Issues Alert for Insurers to Accept, Forward, Acknowledge, and Fairly Investigate All Business Interruption Insurance Claims

On April 14, 2020, the California Department of Insurance (by Insurance Commissioner Ricardo Lara) issued an Alert in reference to the COVID-19 pandemic, specifically to all admitted and non-admitted insurance companies, all licensed insurance adjusters and producers, and other licensees and interested parties entitled “Requirement to Accept, Forward, Acknowledge, and Fairly Investigate All Business Interruption Insurance Claims Caused by the COVID-19 Pandemic.” You can find the Alert at the following link: http://www.insurance.ca.gov/0250-insurers/0300-insurers/0200-bulletins/bulletin-notices-commiss-opinion/upload/Business-Interruption-Claims-Notice.pdf?inf_contact_key=44c76327a563a3b14bfebe52cf1546a1b7af0999dac2af6212784c39e05d2aef

You might be aware that possible insurance recovery by businesses for losses arising from COVID-19 already is a heavily discussed legal topic in the context of business interruption and other possible insurance policies and coverages. Each business should be evaluating each of its policies, not just its business interruption policy, for possible coverage. Such a discussion and evaluation requires specific policy analysis which is beyond the scope of this post or of any one post. Each insurance policy and its coverage, exclusions, etc., must be read and evaluated separately including such matters as the applicable jurisdiction and laws, not just the wording of the policy but also the intent of the policy and the parties, contract and insurance policy legal interpretation, presumptions, burden of proof, etc.

The Alert is also interesting for its citations to the California Code of Regulations at Sections 2695.5 and 2695.7, and requirements pertaining to the acceptance, forwarding, acknowledgement, and fair investigation, acceptance, or denial as those Sections apply to all insurance policies and claims. For example, in part, Section 2695.7(b) requires:

(b) Upon receiving proof of claim, every insurer, except as specified in subsection 2695.7(b)(4) below, shall immediately, but in no event more than forty (40) calendar days later, accept or deny the claim, in whole or in part. The amounts accepted or denied shall be clearly documented in the claim file unless the claim has been denied in its entirety.

(1) Where an insurer denies or rejects a first party claim, in whole or in part, it shall do so in writing and shall provide to the claimant a statement listing all bases for such rejection or denial and the factual and legal bases for each reason given for such rejection or denial which is then within the insurer’s knowledge. Where an insurer’s denial of a first party claim, in whole or in part, is based on a specific statute, applicable law or policy provision, condition or exclusion, the written denial shall include reference thereto and provide an explanation of the application of the statute, applicable law or provision, condition or exclusion to the claim. Every insurer that denies or rejects a third party claim, in whole or in part, or disputes liability or damages shall do so in writing.

(2) Subject to the provisions of subsection 2695.7(k), nothing contained in subsection 2695.7(b)(1) shall require an insurer to disclose any information that could reasonably be expected to alert a claimant to the fact that the subject claim is being investigated as a suspected fraudulent claim.

(3) Written notification pursuant to this subsection shall include a statement that, if the claimant believes all or part of the claim has been wrongfully denied or rejected, he or she may have the matter reviewed by the California Department of Insurance, and shall include the address and telephone number of the unit of the Department which reviews claims practices.

However, in part, Sections 2695.7(c), (d), and (e) also provide:

(c)(1) If more time is required than is allotted in subsection 2695.7(b) to determine whether a claim should be accepted and/or denied in whole or in part, every insurer shall provide the claimant, within the time frame specified in subsection 2695.7(b), with written notice of the need for additional time. This written notice shall specify any additional information the insurer requires in order to make a determination and state any continuing reasons for the insurer’s inability to make a determination. Thereafter, the written notice shall be provided every thirty (30) calendar days until a determination is made or notice of legal action is served. If the determination cannot be made until some future event occurs, then the insurer shall comply with this continuing notice requirement by advising the claimant of the situation and providing an estimate as to when the determination can be made.

(2) Subject to the provisions of subsection 2695.7(k), nothing contained in subsection 2695.7(c)(1) shall require an insurer to disclose any information that could reasonably be expected to alert a claimant to the fact that the claim is being investigated as a possible suspected fraudulent claim.

(d) Every insurer shall conduct and diligently pursue a thorough, fair and objective investigation and shall not persist in seeking information not reasonably required for or material to the resolution of a claim dispute.

(e) No insurer shall delay or deny settlement of a first party claim on the basis that responsibility for payment should be assumed by others, except as may otherwise be provided by policy provisions, statutes or regulations, including those pertaining to coordination of benefits.

Obviously each individual insurance policy and coverage situation must be separately evaluated. Similarly, in this unusual time many contracts between suppliers and buyers also need to be evaluated – see my prior post at https://wp.me/p75iWX-sK.

In the insurance policy context whether or not an insurer has acted reasonably or unreasonably and possible bad faith are evaluated on many different actions and criteria, some but not all of which, can include the following:

  • The failure to investigate the claim or to investigate the claim thoroughly (and fairly to the insured);
  • The failure to evaluate the claim objectively;
  • Using incorrect, erroneous, improper or unduly restrictive standards or interpretations to delay, frustrate or deny the insured’s claim or the claim form;
  • Delay in claims handling;
  • Unreasonably and unfairly requesting additional and further unnecessary documents or evidence from the insured;
  • The failure to timely or with sufficient detail communicate acceptance or denial of the claim or acceptance or denial of the individual parts of the claim;
  • Unreasonable or unfair delay in payment on the claim;
  • Unreasonably low first party or third party claim or settlement offers;
  • Unreasonable litigation, or unreasonable litigation tactics to delay, frustrate or avoid payment on the insured’s claim;
  • Unreasonable or unfair post claim interpretation or underwriting practices;
  • And other unreasonable, unfair, deceptive, abusive, or coercive practices and tactics to delay or avoid the payment of claims.

Best to you, Dave Tate, Esq. (San Francisco and California)

———————————————————————-

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 and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

      • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; 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, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental 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.
      • Insurance coverage and bad faith.
      • Access to corporate and business records disputes.
      • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

      • Corporate, business, nonprofit and governmental internal investigations.
      • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.