A Dearest Deb Update – husband has controlled and kept (or maybe disposed of) all of Deb’s personal and Tate legacy property and Deb’s ashes – written in memory of Deborah (Tate) Trotta

On October 20, 2021, I wrote a post about the tragic death of my sister Deborah (Tate) Trotta. Deb’s body was found on a beach near her house in Hobe Sound, Florida on September 12, 2021. Deb loved walking on the beach. In my October 20, post I got some things correct, I definitely got some things incorrect, and the post was significantly incomplete as at that point I had relatively little information, and in part I had also been provided an incorrect or even misleading for false narrative and information. I have now also reached a point of being able to discuss Deb and her tragic situation while keeping my sadness emotions under better control.

Although for years I have represented clients in extremely contentious and sometimes nasty trust, probate, and elder abuse litigation, Deb’s tragic circumstances both before and after her death are arguably the worst that I have ever seen, and, of course, Deb’s circumstances are also personal to me.

Here is the link to my original October 20, post https://californiaestatetrust.com/2021/10/20/2353/

Since October 20, I now have the sheriff’s report and the medical examiner report and the information contained in both of those reports. I have also heard from and talked with relatives and close long-time (essentially life-long) friends of Deb who I had not talked with for years and years. I also now have had the experience of dealing with husband. It would be more correct to say trying to deal with husband as he stopped communicating with me on September 22, 2021 (just 10 days after Deb’s death) as it was on that day that I requested that he send to me the text that he said Deb sent at 5:37 pm on September 11, which supposedly was Deb’s last text. My request for the text was denied. As was also my request for Deb’s phone or what was on her phone including pictures that she had taken, texts, emails, and a log of calls, etc. I was told that Deb was a private person – Deb wasn’t private, at least not with me and her close relatives and long-time friends. We all have a large number of texts from Deb in which she described her situation and provided pictures and videos.

I did not understand that on September 22, husband had folded shop and had actually stopped communicating – I kept trying to communicate, but I now understand in hindsight that husband had stopped and was done.

I will be writing a number of posts in which I discuss Deb and her situation. Instead of writing long blog posts, I am going to break these discussions into smaller specific topics and discussions. Perhaps as many as 10 or so topics and posts. I am doing this for two reasons: out of memory and respect for Deb and because she would not want her story kept hidden, and possibly as lessons that other people should consider or might learn from.

For example, just as a sampling, I will be discussing the sheriff’s report, the medical examiner report, don’t let someone who you don’t trust control your phone service plan (get our own plan), don’t let anyone who you don’t trust have essentially all of the access to, possession of, and information about the financial accounts and assets, make sure your estate planning documents are in order and that the documents are provided to people who you trust and love, have sufficient access to money and assets yourself, tell other people what is happening and just how bad it is, and have a plan and get out of and leave the situation (just leave) when you become sufficiently uncomfortable with what is happening.

For example, I did not know or understand how insecure Deb was about finances and her long-term financial security – I had told Deb that she should just leave, but I now understand why she had difficulty doing that. Ultimately on the morning of September 11, there was an argument, and Deb finally said that she was divorcing husband – Deb had texted that husband had threatened her with divorce and other things for a time. I now understand that Deb was so hesitant to just leave because she did not have information about, or possession or access to or control over the significant financial assets and accounts, and she was insecure and afraid of her financial risk if she left. She didn’t feel like she could just leave.

I had been working with Deb for her to retain a divorce attorney. This was no secret. Other friends and relatives had been working with Deb on the same. One or two days before September 11, Deb communicated that she was finally ready to go forward. And then there was “the argument” on the morning of September 11. I will have more to say about “the argument” and what was said in a later post – Deb finally said that she was leaving. I have been told that terms of her leaving and what would happen next were dictated to her.

Since Deb’s death husband has controlled all of the information and possessed all of Deb’s personal property and Tate legacy pictures, jewelry, assets and other items, all of the financial accounts and information, Deb’s ashes, and Deb’s poodle Annie. Husband has offered and provided nothing. Although their relationship had become very bad and abusive, and they were getting divorced, husband has held, withheld and refused to provide absolutely everything that was Deb’s including Deb’s ashes. One of our cousins lives 20-30 minutes from Deb’s house – the transfer of personal property and Deb’s ashes would have been extremely easy. Instead, there is complete control and denial.

Husband told me, and other people, that within a month of Deb’s death he himself would bring Deb’s ashes to California to be spread in two Marin and Sonoma County locations in accord with Deb’s wishes. He of course hasn’t done that. The disrespect, and possible desecration or sacrilege, of Deb and her ashes, and disregard for her known wishes has been absolute. We had also offered to arrange and pay for the secure transport of Deb’s ashes to California. I now have a personal understanding of what Deb had communicated in her many texts and during our phone calls, and what relatives and friends have said to me.

This week I retained legal counsel in Florida. In litigation and in my cases some issues and options can fall into a sort of gray zone, but sometimes the options are narrowed and the possible choices become clear. For Deb and in her situation the options have become clear – there are only two choices as nothing has happened and nothing is going to happen – (1) let it go and allow husband to continue control and to keep everything even including Deb’s ashes, personal and Tate legacy things and property, and the assets, or (2) bring legal action to honor Deb and her wishes. For me, seeking to honor Deb and her wishes is the obvious decision.

More to follow.

* * * * * * *

Best to you,

David Tate, Esq. (and inactive CPA)

  • Litigation, Disputes and Trials – Business, Contract/Commercial, Owner, and Founder; and Trust, Estate, Elder/Dependent Abuse, Conservatorships, POA, Real Property, Health and Care, Contentious Administrations, etc.
  • Mediator
  • D&O, Governance, Workplace, Boards, Committees, and Executives, Investigations, Internal Controls and Auditing, Law, Laws and Legislation, Responsibilities and Duties, Rights, Liability, and Damages, etc.

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.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that doesn’t mean that I don’t or might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

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

My two blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

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

David Tate, Esq. (and inactive California CPA) – practicing as an attorney in California only.

Elder Abuse Restraining Orders – White v. Wear – And Forward From Jeffrey Galvin, Downey Brand

Elder abuse restraining orders are in the California news. See my prior post New law expands legal standing in California to petition for a restraining order to stop and prevent elder and dependent adult isolation abuse at https://wordpress.com/post/californiaestatetrust.com/2385.

The following is a link to a new post by Jeffrey Galvin of the Downey Brand law firm in the Trust on Trial blog discussing new California case White v. Wear https://www.trustontrial.com/2022/03/elder-abuse-restraining-orders-may-prevent-estate-planning-changes/

As Mr. Galvin writes “In White v. Wear (2022) ___ Cal.App.5th ___, the Court of Appeal reviewed the issuance of an elder abuse restraining order that precluded the respondent from making or facilitating any change to the estate plan of her 94-year-old stepfather.  Such an order might preempt an estate planning change and thereby avoid a future contest over a will or trust.”

In White v. Wear the Court of Appeal held that the trial court did not abuse its discretion in entering a restraining order against a step child who tried to unduly influence her mother’s elderly husband to change his estate plan to benefit the mother and the step child. California has long had statutes prohibiting elder and dependent adult abuse – however, there still are relatively few court decisions that interpret or apply those statutes. In White v. Wear the Court discussed restraining orders under California Welfare and Institutions Code section 15657.03 under which a court may issue a restraining order to prevent threatened or actual physical and financial abuse of an elder or a dependent adult.

Quoting from White v. Wear, the following is additional overview from the Court’s Opinion:

“The parties to this appeal are no strangers to this court. This case is yet another skirmish in a long series of disagreements about the control of the multi-million-dollar estate[1] of nonagenarian[2] Thomas S. Tedesco.[3] Plaintiff and respondent Laura White is one of Thomas’s three biological daughters and a cotrustee of his living trust. (Conservatorship of Tedesco (Sept. 19, 2019, E070316) [nonpub. opn.] review denied Dec. 18, 2019, S258835 (Conservatorship, E070316).) Defendant and appellant Debra Wear aka Debbie Basara Wear is one of Thomas’s stepdaughters. In 2013, Thomas suffered serious health issues, which resulted in significant cognitive impairment, leaving him susceptible to being unduly influenced by anyone close to him. Gloria Tedesco, Thomas’s second wife, began denying White and her sisters access to their father, causing him to believe that they were stealing from him. Wear assisted Gloria, her mother, in unduly influencing Thomas via contacting, or facilitating access to, attorneys in order to change Thomas’s estate plan to disinherit his biological family in favor of Gloria and her family. Thus, on August 13, 2015, a permanent conservator of Thomas’s estate was appointed.

Despite the existence of the conservatorship, Wear continued to assist Gloria in taking actions to unduly influence Thomas to change his 30-plus-year estate plan. Consequently, upon White’s petition, the superior court issued an elder abuse restraining order (EARO), restraining Wear for three years from, among other things, financially abusing Thomas, contacting him (either directly or indirectly), facilitating any change to his estate plan, coming within 100 yards of him, and possessing any guns, other firearms, and ammunition. (Welf. & Inst. Code,[4] § 15657.03.) Wear contends the EARO is void because (1) the judge was disqualified and (2) he violated due process by substantially amending the allegations in the petition and prohibiting her from possessing firearms and ammunition. She further asserts the petition fails to state a cause of action for elder financial abuse. We agree the court erred in including a firearms and ammunition restriction in the EARO and direct the court to strike it. Otherwise, we affirm.[5]

Slowly, over time, California is adding additional teeth to its elder and dependent adult abuse statutes and cases, and to the toolbox that attorneys and other professionals can use to prevent and remedy elder and dependent adult abuse. If you scroll through this blog you will find other blog posts discussing conservatorships, elder and dependent adult abuse, mental and physical capacity and limitations, undue influence, litigation, mediation, and other related topics.

* * * * * * *

Best to you,

David Tate, Esq. (and inactive CPA)

  • Litigation, Disputes and Trials – Business, Contract/Commercial, Owner, and Founder; and Trust, Estate, Elder/Dependent Abuse, Conservatorships, POA, Real Property, Health and Care, Contentious Administrations, etc.
  • Mediator
  • D&O, Governance, Workplace, Boards, Committees, and Executives, Investigations, Internal Controls and Auditing, Law, Laws and Legislation, Responsibilities and Duties, Rights, Liability, and Damages, etc.

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.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that doesn’t mean that I don’t or might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

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

My two blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

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

David Tate, Esq. (and inactive California CPA) – practicing as an attorney in California only.

Dave Tate, Esq. – looking for collaborating and growing law firm and attorney relationships, in multiple California locations – trust/estate litigation, business litigation, etc.

Looking for collaborating and growing law firm and attorney relationships. My practice is primarily trust/estate and business litigation, with some mediator services, and some owner, officer, director, board, governance, workplace and other legal areas.

I am looking to connect with a growing, collaborating law firm, and to grow my relationships with collaborating attorneys, and in multiple locations or footprints in northern and southern California. At the risk of being a bit redundant, the collaboration and working or sharing together are an important aspect of this.  

  • It could be a northern California law firm or relationship that is looking for litigation help in northern California and that has a footprint in southern California.
  • It could be a southern California law firm or relationship that is looking for litigation help in northern California.
  • It could be a firm or relationship with multiple northern California locations or footprints.
  • Or it could be a relationship with a single attorney or small firm that is collaborating.

I am available in both northern and southern California. I am also available to help with marketing, mentoring, and management. The relationship needs to be collaborating and growth oriented. A variety of arrangements are possible.

Regards, Dave Tate, Esq. (and inactive CPA)

* * * * * * *

Best to you,

David Tate, Esq. (and inactive CPA)

  • Litigation, Disputes and Trials – Business, Contract/Commercial, Owner, and Founder; and Trust, Estate, Elder/Dependent Abuse, Conservatorships, POA, Real Property, Health and Care, Contentious Administrations, etc.
  • Mediator
  • D&O, Governance, Workplace, Boards, Committees, and Executives, Investigations, Internal Controls and Auditing, Law, Laws and Legislation, Responsibilities and Duties, Rights, Liability, and Damages, etc.

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.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that doesn’t mean that I don’t or might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

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

My two blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

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

David Tate, Esq. (and inactive California CPA) – practicing as an attorney in California only.

Representing clients with diminished mental capacity – scenarios 1 and 2 – California State Bar Standing Committee ethics Opinion 2021-207

Representing Diminished Capacity Clients. It goes without saying that an attorney might be approached by a prospective client for representation, or might be representing a client, who has or who might have “diminished mental capacity.” These are or can be extremely difficult issues and situations. I put “diminished mental capacity” in quotes to acknowledge the issue; however, it is not a purpose of this post to start discussing exactly what that means or might mean.

Instead, I am writing to provide you with a link to new California State Bar Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 2021-207, and to provide you with scenarios 1 and 2 and their respective evaluations as provided in Opinion NO. 2021-207. I have added yellow highlight to certain wording in scenarios 1 and 2 and their respective evaluations. A link to the Opinion, and scenarios 1 and 2 in pdf are provided below.

A couple of additional quick comments relating to scenarios 1 and 2.

Scenario 1 involves a conservatorship or possible conservatorship scenario. The attorney believes that the client or prospective client has mental capacity to make the decision to oppose the conservatorship, but the attorney believes that the client’s decision in that regard is imprudent.

But what if the attorney believes that the client or prospective client’s decision is imprudent and that the client or prospective client for whatever reason lacks mental capacity to make that decision? Of course, every situation is different and unique in at least some regards. Nevertheless, I believe that in that situation the Opinion would require that the attorney not represent or not continue to represent the prospective client. However, declining to represent, and withdrawing representation also present other issues, and possibly other options, as in part discussed in the Opinion. Additionally, as a prospective conservatee is entitled to legal counsel and is entitled to a jury trial, at least the Court would need to address the issue of the conservatee’s legal representation, and recent case authority states that generally the prospective conservatee is entitled to be represented by the attorney of the prospective conservatee’s choice.

Scenario 2 involves estate planning for a client who the attorney reasonably believes lacks testamentary capacity and that but for that diminished capacity the client would not be making the new testamentary dispositions (and that the client is at substantial risk of being unduly influenced by the client’s younger companion). Scenario 2 states that the attorney is required to provide the client with candid advice concerning the attorney’s conclusions, and that if the client declines to accept the attorney’s advice, the attorney should decline to prepare the will. And, of course, there are other issues, and possible options that will or that might arise. See also, footnote 31, for example, which is discussing pre-engagement inquiry into or perhaps assessment of client capacity and ability to give informed consent v. doing so after engagement – under either situation, however, it appears that the attorney should not prepare the will (or trust).

It might also be interesting to compare duties and responsibilities of other professionals who sometimes are involved in estate planning or financial advising, such as CPAs, and financial, investment, and wealth advisors and professionals.

Here is a link to Opinion 2021-207 https://www.calbar.ca.gov/Portals/0/documents/publicComment/2021/COPRAC-Formal-Opinion-No.2021-207.pdf

And below are Scenarios 1 and 2, and their respective evaluations, as copied from Opinion 2021-207, with my yellow highlights added.

* * * * * * *

Best to you,

David Tate, Esq. (and inactive CPA)

  • Litigation, Disputes and Trials – Business, Contract/Commercial, Owner, and Founder; and Trust, Estate, Elder/Dependent Abuse, Conservatorships, POA, Real Property, Health and Care, Contentious Administrations, etc.
  • Mediator
  • D&O, Governance, Workplace, Boards, Committees, and Executives, Investigations, Internal Controls and Auditing, Law, Laws and Legislation, Responsibilities and Duties, Rights, Liability, and Damages, etc.

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.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that doesn’t mean that I don’t or might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

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

My two blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

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

David Tate, Esq. (and inactive California CPA) – practicing as an attorney in California only.

Proposed California CARE Court – sounds close to a conservatorship

I have attached below a clip from the Governor’s fact sheet discussing the new proposed California CARE Court. I added the yellow. These are difficult situations and issues. Any proposed improvement is welcome. I note, however, that when the Legislature works on this legislation they consider that this proposal sounds very close to a conservatorship or a limited conservatorship. It would be a State action (legislation and Court) that limits or restricts a person’s freedoms and personal decision making, and also that perhaps results in forced or ordered medications and living conditions.

Several California cases have addressed some of the issues and rights in conservatorship cases – the proposed conservatee is entitled to have legal counsel, and legal counsel of the proposed conservatee’s choice, and a jury trial. Additionally, the medical diagnosis and the name of the medical diagnosis are not determinative of whether or not the conservatorship will be granted or the powers and restrictions that are ordered – instead, the questions pertain to the proposed conservatee’s actual abilities and limitations, and need, or not, for help. Any conservatorship ordered must be the least restrictive possible, and the alternatives must be considered. The conservatorship also must be reviewed annually or more often. See also my post about the recent enactment of Assembly Bill No. 1194 including burden of proof and other issues https://wordpress.com/post/californiaestatetrust.com/2367

The following is the clip from the Governor’s fact sheet discussing the new proposed California CARE Court.

* * * * * * *

Best to you,

David Tate, Esq. (and inactive CPA)

  • Litigation, Disputes and Trials – Business, Contract/Commercial, Owner, and Founder; and Trust, Estate, Elder/Dependent Abuse, Conservatorships, POA, Real Property, Health and Care, Contentious Administrations, etc.
  • Mediator
  • D&O, Governance, Workplace, Boards, Committees, and Executives, Investigations, Internal Controls and Auditing, Law, Laws and Legislation, Responsibilities and Duties, Rights, Liability, and Damages, etc.

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.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that doesn’t mean that I don’t or might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

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

My two blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

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

David Tate, Esq. (and inactive California CPA) – practicing as an attorney in California only.

Focus on Domestic Violence and Abuse, Animal Cruelty as Domestic Violence, and Cluster B Personality Disorders – Controlling and Threatening Personalities, Bullies, Liars, Narcissists . . .

This past week the Washington State Supreme Court held that animal cruelty can constitute domestic violence, see animal cruelty can qualify as domestic violence, Washington State Supreme Court: https://www.abajournal.com/news/article/animal-cruelty-can-qualify-as-domestic-violence-state-supreme-court-says

Seven types of abuse (click on the below link for detail):

Physical Abuse (including intimidation)

Mental Abuse (including anxiety, threats, and lying)

Verbal Abuse (including intimidation, browbeating, blame, and personal attacks)

Emotional Abuse (including insecurity, anger/fear, duress, coercion, and hostility)

Financial Abuse (including secrecy, forbidden access, control, possession, and dependency)

Sexual Abuse

Spiritual Abuse

These are starting points for discussion.

https://growwithchristine.com/the-7-main-types-of-abuse/

Cluster B personality disorders (click on the below link for detail):

Antisocial personality disorders include but are not limited to:

  • manipulative or deceitful behavior for personal gain, such as lying or assuming false identities
  • repeated antisocial actions, such as harassment or theft
  • impulsive behavior, which might lead to frequent job or relationship changes
  • irresponsible actions, which can affect occupational, social, and financial aspects of life, for example
  • disregard for personal safety or the safety of others, such as speeding, driving while intoxicated, or neglecting a child
  • irritable or aggressive behavior, which can include physical fights

https://www.webmd.com/mental-health/what-are-cluster-b-personality-disorders

In memory of my dearest sister Deb – it has been 5+ months, and we are still working through this, but a lot more is known – Deb died on September 12, 2021 (or was found dead on that date) – below is a link to my October 20, 2021, post discussing what was known at that time. A lot has happened, and a lot more is known since that time – for example, although husband would not provide me with a copy of Deb’s supposed note, the Sheriff’s report which I now have contains the wording (but not a copy – just the wording – thus, the supposed note cannot be authenticated – and I will be posting the wording – the supposed note isn’t the narrative that it was represented to be), I also have a copy of the medical examiner’s report (and toxicology report), I know the narrative that husband told the Sheriff (pursuant to the Sheriff’s report), I have spoken with several of Deb’s life-long friends, family and relatives, husband stopped responding to me on September 22 (just 10 days after Deb’s body was found, and when I requested that he provide me with a copy of what he told me was Deb’s last text to him at 5:37 pm on September 11), and there have been at least several other important events and developments since Deb’s body was found. Thus, here is a link to my October 20 post, but the post will be updated with additional information: https://wordpress.com/post/californiaestatetrust.com/2353

* * * * * * *

Best to you,

David Tate, Esq. (and inactive CPA)

  • Litigation, Disputes and Trials – Business, Contract/Commercial, Owner, and Founder; and Trust, Estate, Elder/Dependent Abuse, Conservatorships, POA, Real Property, Health and Care, Contentious Administrations, etc.
  • Mediator
  • D&O, Governance, Workplace, Boards, Committees, and Executives, Investigations, Internal Controls and Auditing, Law, Laws and Legislation, Responsibilities and Duties, Rights, Liability, and Damages, etc.

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.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that doesn’t mean that I don’t or might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

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

My two blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

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

David Tate, Esq. (and inactive California CPA) – practicing as an attorney in California only.

New law expands legal standing in California to petition for a restraining order to stop and prevent elder and dependent adult isolation abuse

California Assembly Bill No. 1243, signed by Governor Newsom  on September 23, 2021, in relevant part expands the definition of an “interested party” who has legal standing to petition the court for a restraining order to enjoin (i.e., stop and prevent) elder and dependent adult isolation abuse. Assembly Bill No. 1243 is effective beginning January 1, 2023.

For the purpose of seeking the restraining order to enjoin (i.e., to stop and prevent) the isolation, pursuant to Assembly Bill No. 1243, beginning January 1, 2023 the term interested party will be expanded to include the following: “Interested party” means an individual with a personal, preexisting relationship with the elder or dependent adult. Thus, for example, if the requisite factual circumstances exist, friends and family members will now (beginning January 1, 2023) have legal standing to file a petition requesting the court to issue an order enjoining the wrongdoer from isolating the elder or dependent adult victim.

Elder and dependent adult cases present challenging legal issues relating to proof and remedies. And the elder or dependent adult victim can feel torn and pulled in different emotional and relationship directions. For example, situations are common where a wrongdoer is trying to unduly influence or take financial advantage of and to be alone with and isolate the elder or dependent adult victim so the wrongdoer can more easily badmouth others or take or steal or get the victim to change her or his estate planning documents, while good family members and friends are also trying to protect the elder or dependent adult and to keep the wrongdoer away. I have seen in these situations a wrongdoer who tries to use the law to help the wrongdoer to be able to continue to see and be with the elder or dependent adult victim including petitioning the court for an order to prevent the good people from keeping the wrongdoer away. And the victim is torn because she or he mistakenly believes the wrongdoer is actually a benevolent friend or family member.

Although California law does tend to extend legal standing in elder and dependent adult abuse cases more broadly than the laws in some other states (such as Florida, for example, where it is still too limited), even in California legal standing needs to be expanded to the greatest extent possible so that wrongdoers aren’t able to hide behind the law as a shield, and Assembly Bill No. 1243 will be helpful in that regard (beginning January 1, 2023). But, of course, this new provision would be even more helpful if it is made effective immediately.  

The following are select relevant wording provisions from Assembly Bill No. 1243:

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1.

(a) It is the intent of the Legislature to prevent domestic violence, including elder and dependent adult abuse, and particularly to preserve the physical and mental health of vulnerable Californians.

            * * * * *

(b) The Legislature finds and declares that one way perpetrators of domestic violence, including elder and dependent adult abuse, are able to continue with their abuse is by preventing trusted friends and family members from seeing or contacting a vulnerable adult. As the vulnerable adult is isolated, it becomes more and more difficult for others to identify signs of abuse. The isolation also allows the perpetrator to potentially take over finances and hide any indications that they are doing so.

            * * * * *

A court order is not required for an elder or dependent adult to engage in visitation from anyone from whom the elder or dependent adult desires visitation.

(c) The Legislature further finds and declares that it is extremely important that the health and well-being of a vulnerable adult be front and center in any decision affecting them.

(d) It is the intent of the Legislature that the changes made by this act ensure that vulnerable adults are able to protect and preserve their physical and mental health, by making certain that these vulnerable adults are able to maintain important familial and social connections that they desire, and that a perpetrator does not cut off those relationships in an attempt to take advantage of the vulnerable adult.

            * * * * *

SEC. 3.

Section 15657.03 is added to the Welfare and Institutions Code, to read:

15657.03.

 (a) (1) An elder or dependent adult who has suffered abuse, as defined in Section 15610.07, may seek protective orders as provided in this section.

(2) (A) A petition may be brought on behalf of an abused elder or dependent adult by a conservator or a trustee of the elder or dependent adult, an attorney-in-fact of an elder or dependent adult who acts within the authority of a power of attorney, a person appointed as a guardian ad litem for the elder or dependent adult, or other person legally authorized to seek the relief.

(B) (i) Subject to clause (ii), if the petition alleges abuse of an elder or dependent adult in the form of isolation, the term “other person legally authorized to seek the relief” as used in subparagraph (A) includes an interested party as defined in paragraph (3) of subdivision (b) [DTate: see below].

(ii) Clause (i) shall apply only for the purpose of seeking an order enjoining isolation under subparagraph (E) of paragraph (5) of subdivision (b).

            * * * * *

(b) For purposes of this section:

(1) “Abuse” has the meaning set forth in Section 15610.07.

(2) “Conservator” means the legally appointed conservator of the person or estate of the petitioner, or both.

(3) “Interested party” means an individual with a personal, preexisting relationship with the elder or dependent adult. A preexisting relationship may be shown by a description of past involvement with the elder or dependent adult, time spent together, and any other proof that the individual spent time with the elder or dependent adult.

            * * * * *

(5)(E) (i) After notice and a hearing only, an order enjoining a party from abusing an elder or dependent adult by isolating them. An order may be issued under this subparagraph to restrain the respondent for the purpose of preventing a recurrence of isolation if the court finds by a preponderance of the evidence, to the satisfaction of the court, that the following requirements are met:

(I) The respondent’s past act or acts of isolation of the elder or dependent adult repeatedly prevented contact with the interested party.

(II) The elder or dependent adult expressly desires contact with the interested party. A court shall use all means at its disposal to determine whether the elder or dependent adult desires contact with the person and has the capacity to consent to that contact.

(III) The respondent’s isolation of the elder or dependent adult from the interested party was not in response to an actual or threatened abuse of the elder or dependent adult by the interested party or the elder or dependent adult’s desire not to have contact with the interested party.

(ii) The order may specify the actions to be enjoined, including enjoining the respondent from preventing the interested party from in-person or remote online visits with the elder or dependent adult, including telephone and online contact.

(iii) An order enjoining isolation under this section is not required for an elder or dependent adult to visit with anyone with whom the elder or dependent adult desires visitation.

(iv) An order enjoining isolation shall not be issued under this section if the elder or dependent adult resides in a long-term care facility, as defined in Section 9701, or a residential facility, as defined in Section 1502 of the Health and Safety Code. In those cases, action may be taken under appropriate federal law.

(v) An order enjoining isolation shall not be issued under this section if the elder or dependent adult is a patient of a health facility as defined in subdivision (a), (b), or (f) of Section 1250 of the Health and Safety Code. In those cases, action may be taken under other appropriate state or federal law.

            * * * * *

* * * * * * *

Best to you,

David Tate, Esq. (and inactive CPA)

  • Litigation and Disputes – Business, Contract, Owner, and Founder; and Trust, Estate, Elder/Dependent Abuse, Conservatorships, POA, Real Property, Administrations, etc.
  • Mediator
  • D&O, Governance, Workplace, Boards, Committees, and Executives, Investigations, Internal Controls and Auditing, etc.

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

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

My two blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

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

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

⁃  Litigation, disputes and trials (primarily in the following areas):

Commercial and business, and business owner, investor, shareholder, D&O, officer, director, governance, accountings, lost income, profits and royalties, and business-related;

Trust, estate, elder abuse, POA, conservatorship, contentious administrations, ethics, etc.;

Workplace and employment, and real property; and

Various other cases and areas (environmental contamination, accidents, insurance, etc.).

⁃  Boards and committees including audit and governance committees, investigations, independence, conflicts, governance, diligence, risk management, ESG, etc. – representation and advising re conduct, authority, duties and responsibilities, rights, and liability.

⁃  Services as a mediator, and dispute resolution.

COVID restricting nursing home visits again – must ensure residents, family and friends have communications and access

COVID deaths and cases are rising again at US nursing homes https://news.yahoo.com/covid-deaths-cases-rising-again-131807076.html

Please also consider subscribing to ihaveadifferentview.com

If you subscribe to this blog, please also consider subscribing to a new blog that I am starting http://ihaveadifferentview.com. The new blog (I HAVE A DIFFERENT VIEW) is a bit of a different approach – I will start also posting on the new blog posts that I make to this blog – if the new blog is sufficiently successful, eventually I hope to move all of my posts to just the new blog. The new blog will also present an expanded subject matter.

Thanks and best to you. Dave Tate

A conservatorship game changer – California Assembly Bill No. 1194 – two provisions: the right to be represented by an attorney (a zealous, independent advocate), and the clear and convincing standard of proof

California Assembly Bill No. 1194, Low, Conservatorship, was approved by the Governor and filed with the Secretary of State on September 30, 2021. The Bill is long, has many sections, and amends many sections of the Probate Code or makes new sections. Some of the provisions do not necessarily become mandatory immediately – typical wording that is included in many of the new provisions states something similar to: “A superior court shall not be required to perform any duties imposed pursuant to this section until the legislature makes an appropriation identified for this purpose.” Nevertheless, as to a certain extent the Probate Court in each Superior Court sometimes can operate as it wishes, although not “required” to perform the specified duties, a Probate Court still might decide to do so prior to an appropriation being made by the legislature. If a Probate Court decides to perform the new duties earlier than required to do so, the Probate Court should be sure to make that decision known to practicing attorneys, the public, and others.

Some of the new provisions apply to conservatorships in general, whereas other provisions specifically apply only to limited conservatorships, or temporary conservatorships, or other specific situations.    

You can find other conservatorship related posts throughout this blog. Conservatorships are a developing area of law. The new provisions strengthen conservatee and prospective conservatee rights, which is appropriate given that a conservatorship is a state action that limits the conservatee’s constitution rights of freedom and personal choice. It is also true that, in the real world, recognizing and specifying the additional rights most likely will create or cause new processes and procedures which might well cause fewer conservatorships to be granted, more conservatorships might be terminated, conservatorships that are ordered might involve fewer limitations or restrictions on conservatees, and additional court time and attention might be required in conservatorship cases. The result might also be that if there are fewer conservatorships, people who would have been but who are not being conserved might need additional help or assistance from an attorney in fact under a power of attorney, or from a trustee, or from a spouse or domestic partner, family and friends.

The following are two significant sections in AB 1194 which are effective immediately. The first section amends Probate Code section 1471. The second section amends Probate Code section 1863.

The amendment to Probate Code section 1471 specifies that a conservatee or a prospective conservatee, or a person alleged to lack legal capacity is entitled to be represented by an attorney, whether the attorney is the public defender or private counsel, and that the conservatee or prospective conservatee also in most situations is entitled to be represented by an attorney of her or his choice (or, perhaps, by the choice of her or his attorney in fact?). Amended section 1471 also appears to require the court to appoint legal counsel for the conservatee, prospective conservatee or person alleged to lack legal capacity even when legal counsel wasn’t requested – see below at section 1471(b).

The amendment to Probate Code section 1863 is perhaps even more significant. Amended sections 1863(c) and (d) provide that when a court is determining whether the granting of a conservatorship is appropriate, and when reviewing the appropriateness of a conservatorship continuing or not (which is required at least annually and sometimes can be required more often), unless the court determines by clear and convincing evidence that the conservatee meets the criteria for the appointment of a conservator or still meets that criteria (i.e., that the order for a conservatorship is appropriate), and that the conservatorship and the powers that have been granted to the conservator are the least restrictive means of providing help and assistance to the conservatee or prospective conservatee, the court shall terminate the conservatorship or modify the terms to be the least restrictive.

As the clear and convincing standard is a higher standard of proof than for example the preponderance of the evidence, the result might be fewer conservatorships being granted, or less restrictive conservatorship terms, or more conservatorships being terminated. As in many circumstances a conservatee or prospective conservatee also is entitled to have a trial on the matter (i.e., with witness testimony instead of the judge simply making a decision from the bench), and also might be entitled to have a trial by jury instead of simply by the judge, there is the prospect that more conservatorship cases will result in trials, and in jury trials (see also section 1471(e) below in reference to the attorney being a “zealous, independent advocate representing the wishes of their client”).   

Below I have copied and pasted the new amended Probate Code sections 1471 and 1863. You can also search this blog for other “conservatorship” posts.

Thanks for reading, and best to you, Dave Tate, Esq.

SEC. 6.

Section 1471 of the Probate Code is amended to read:

1471.

(a) If a conservatee, proposed conservatee, or person alleged to lack legal capacity is unable to retain legal counsel and requests the appointment of counsel to assist in the particular matter, whether or not that person lacks or appears to lack legal capacity, the court shall, at or before the time of the hearing, appoint the public defender or private counsel to represent the person in the following proceedings under this division:

(1) A proceeding to establish or transfer a conservatorship or to appoint a proposed conservator.

(2) A proceeding to terminate the conservatorship.

(3) A proceeding to remove the conservator.

(4) A proceeding for a court order affecting the legal capacity of the conservatee.

(5) A proceeding to obtain an order authorizing removal of a temporary conservatee from the temporary conservatee’s place of residence.

(b) If a conservatee or proposed conservatee has not retained legal counsel and does not plan to retain legal counsel, whether or not that person lacks or appears to lack legal capacity, the court shall, at or before the time of the hearing, appoint the public defender or private counsel to represent the person in any proceeding listed in subdivision (a).

(c) In any proceeding to establish a limited conservatorship, if the proposed limited conservatee has not retained legal counsel and does not plan to retain legal counsel, the court shall immediately appoint the public defender or private counsel to represent the proposed limited conservatee. The proposed limited conservatee shall pay the cost for that legal service if they are able. This subdivision applies irrespective of any medical or psychological inability to attend the hearing on the part of the proposed limited conservatee as allowed in Section 1825.

(d) If a conservatee, proposed conservatee, or person alleged to lack legal capacity expresses a preference for a particular attorney to represent them, the court shall allow representation by the preferred attorney, even if the attorney is not on the court’s list of a court-appointed attorneys, and the attorney shall provide zealous representation as provided in subdivision (e). However, an attorney who cannot provide zealous advocacy or who has any conflict of interest with respect to the representation of the conservatee, proposed conservatee, or person alleged to lack legal capacity shall be disqualified.

(e) The role of legal counsel of a conservatee, proposed conservatee, or a person alleged to lack legal capacity is that of a zealous, independent advocate representing the wishes of their client, consistent with the duties set forth in Section 6068 of the Business and Professions Code and the California Rules of Professional Conduct.

(f) In an appeal or writ proceeding arising out of a proceeding described in this section, if a conservatee or proposed conservatee is not represented by legal counsel, the reviewing court shall appoint legal counsel to represent the conservatee or proposed conservatee before the court.

______________________

SEC. 16.

Section 1863 of the Probate Code is amended to read:

1863.

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

(b) (1) The conservatee shall be produced at the hearing except in the following cases:

(A) When the conservatee is out of the state and is not the petitioner.

(B) When the conservatee is unable to attend the hearing by reason of medical inability.

(C) When the court investigator has reported to the court that the conservatee has expressly communicated that the conservatee (i) is not willing to attend the hearing, (ii) does not wish to contest the continuation of the conservatorship, and (iii) does not object to the current conservator or prefer that another person act as conservator, and the court makes an order that the conservatee need not attend the hearing.

(2) If the conservatee is unable to attend the hearing because of medical inability, that inability shall be established by the affidavit or certificate of a licensed medical practitioner or, if the conservatee is an adherent of a religion whose tenets and practices call for reliance on prayer alone for healing and is under treatment by an accredited practitioner of that religion, by the affidavit of the practitioner. The affidavit or certificate is evidence only of the conservatee’s inability to attend the hearing and shall not be considered in determining the issue of need for the continuation of the conservatorship.

(3) Emotional or psychological instability is not good cause for the absence of the conservatee from the hearing unless, by reason of that instability, attendance at the hearing is likely to cause serious and immediate physiological damage to the conservatee.

(c) Unless the court determines, on the record and by clear and convincing evidence, that (1) the conservatee still meets the criteria for appointment of a conservator of the person under subdivision (a) of Section 1801, a conservator of the estate under subdivision (b) of Section 1801, or both; and (2) a conservatorship remains the least restrictive alternative needed for the conservatee’s protection, as required by subdivision (b) of Section 1800.3, the court shall enter judgment terminating the conservatorship.

(d) If the court determines, by clear and convincing evidence, that the conservatee meets the criteria for appointment of a conservator of the person under subdivision (a) of Section 1801, a conservator of the estate under subdivision (b) of Section 1801, or both, the court shall determine whether to modify the existing powers of the conservator to ensure that the conservatorship remains the least restrictive alternative needed for the conservatee’s protection and shall order the conservatorship to continue accordingly. If the court modifies the existing powers of the conservator, new letters shall issue.

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

(f) This section does not apply to limited conservatorships.

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

* * * * *