Author Archives: David Tate, Esq.

Fraudsters’ Latest Target: The Already Defrauded – NY Times

Posted on by

2016-02-16_11-43-30

The below is a link to a good article in the NY Times, fraudsters target the already defrauded by promising to recover their originally lost money for a fee and then doing little or nothing to recover the originally lost money – clearly preying on the already victims. Strong people who are good need to take action – stay regularly in touch with the elder, in person if possible, really talk about and share things that are happening in the elder’s life, and consider helping or taking control over finances [you might legally be required to], but while leaving the elder with freedoms and self-respect. These are difficult situations. Call me if you have a situation where legal help is needed – (415) 917-4030 – San Francisco Bay Area and throughout California. For the article CLICK HERE.
Best,
Dave Tate, Esq., Trust/Estate Blog: http://californiaestatetrust.com, Website: http://tateattorney.com.

My recent blog posts to the trust, estate and elder abuse litigation blog and the audit committee and D&O blog

Posted on by

Greetings all. The below are recent posts to both of my blogs, the trust, estate and elder abuse litigation blog http://californiaestatetrust.com and the audit committee, D&O, etc. blog http://auditcommitteeupdate.com. Take a look at both blogs, and register to receive updates by email. My website is http://tateattorney.com. Thanks. Dave Tate, Esq., San Francisco and California.

RSS California Estate Trust Conservatorship & Elder Abuse Litigation

The Year of the Fiduciary Rule

Posted on by

Here is a link to a discussion about anticipated new investment/investment advisor legislation, CLICK HERE.

I don’t usually publish a blog post about proposed legislation because the legislation might happen, or not, and what the legislation actually says, if enacted, is uncertain. And that’s definitely the situation with possible fiduciary legislation. Nevertheless, I have posted this link and discussion about possible fiduciary legislation because this legislation has been in the works, it is important legislation, and it might actually have some importance, although I’ll believe it when I see it. In particular, I am interested in this legislation if it addresses or begins to address elder and dependent adult abuse, mental capacity and cognitive or understanding issues, and reporting and other protective actions. We’ll see . . . more to follow.

Enjoy, Dave Tate, Esq. (San Francisco and California), http://tateattorney.com

California Trustee Discretionary Powers – Video

Posted on by

California Trustee Discretionary Powers – see the video immediately below, and the primary text for the video at the bottom of this post. Thank you. Please pass this information to other people who would be interested. Dave Tate

Text: California Trustee Discretionary Powers

Hello, I’m Dave Tate. I am a San Francisco litigation attorney and I handle cases throughout California in trust, estate, conservatorship, elder abuse and civil litigation, and I also represent fiduciaries and beneficiaries in administrations.

This discussion is about trustee discretionary powers. You can find additional information on my blog at http://californiaestatetrust.com.

A trust will typically contain provisions that give the trustee discretionary powers, that is, the power to use his or her own judgment in specific circumstances. The courts will strictly construe the amount of the discretion from the language in the trust document and the intent of the trustor.

Be cautious, however—and this is important, even if the trust provides sole, absolute or uncontrolled discretion, courts still require the trustee to act within the fiduciary standards, to not self-deal, and to not act in bad faith or in disregard of the purposes and interests of the trust and of the beneficiaries. You can refer to Probate Code §§16080-81.

In other words, if the issue of a trustee’s discretion is presented to the court, the judge will make a determination based on his or her own evaluation of the trust, the trustor’s intent, and the circumstances at issue.

Unless limited by the terms of the trust, the trustee will also have other statutory powers. You should review the powers and limitations specified in the trust document, and also the powers listed at Probate Code §§16200-16249. These sections are important – however, they are too detailed to include in this discussion.

That’s it for now. There are of course other cases and statutes that can apply, and the facts of each situation are different. This discussion doesn’t constitute legal advice. You need to consult a lawyer or professional for your situation. You can find more information on my blog at http://californiaestatetrust.com. Thanks for listening.

Dave Tate, Esq. (San Francisco / California)

California Trustee Investment Portfolio Risk Management and Responsibilities, Elder Abuse, Etc.

Posted on by

The following are links to posts discussing California trustee investment risk management and responsibilities. This is one of the trustee responsibility areas that would keep me up at night if as a trustee I had responsibility over a significant investment portfolio. But the issue doesn’t stop there – it isn’t just a matter of having a prudent portfolio approach to investing, the California Probate Code also contains other specific statutory investment related provisions that the trustee should consider. Stock markets go up and down – for every buyer there is a seller – a loss in value by itself doesn’t necessarily mean that the trustee breached his or her duties – and risk of adverse events cannot be eliminated, but a trustee should want feel covered to the extent possible. The following are links to blog posts discussing these topics.

The Stock Market Dropped Today – Trustee Portfolio Investment Strategy Risk Management – Very Relevant Now and Always, http://wp.me/p1wbl8-cM

California Trustee Investment and Management Responsibilities (Part 2 of 2), http://wp.me/p1wbl8-9c

California Trustee Investment and Management Responsibilities (Part 1 of 2), http://wp.me/p1wbl8-97

See Discussion Paper – A Summary of California Trustee and Beneficiary Responsibilities and Rights, http://wp.me/p1wbl8-eB

California Trustee – What Would Keep Me Up At Night – February 2015, http://wp.me/p1wbl8-ak 

And for those of you who are interested in undue influence, mental capacity and consent, elder abuse and related topics, here’s a link to some presentation slides – Updated Elder Abuse and Protection Presentation Slides – Please Read and Forward, http://wp.me/p1wbl8-dm

Dave Tate, Esq. (San Francisco and California), http://californiaestatetrust.com and http://auditcommitteeupdate.com, including Tate’s Excellent Audit Committee Guide (updated January 2016, 183 pages)

The purpose of this blog – to inform and educate, and personally connect with people who need legal help with trust, estate, conservatorship, power of attorney, and elder and dependent adult abuse litigation, and administrations

Posted on by

This year in 2016, I’m taking a more specific, targeted, pragmatic and personal approach to my two blogs – and a view toward what’s the goal; what’s working; what isn’t working; ROI; what are the options; what to change, improve and stop; and are we taking a too long-term or short-term view with the approach? I have used the word “personal” twice, in the heading and in the body of this post – “personal” is a definite goal. This really isn’t rocket science – but it’s just good to keep in mind. Have a good day.

Best. Dave Tate, Esq. (San Francisco/California)

 

Our Elder and Dependent Adult Abuse Prevention and Remedies Are Ridiculously Inadequate and Archaic – Insufficient Resources and Boots on the Ground, and No Collaboration

Posted on by

Let’s talk more about elder and dependent adult abuse and protection, and why we are failing in California. Prevention and remedies are ridiculously inadequate and archaic, particularly taking into account the numbers of cases of abuse.

I first started bringing elder and dependent adult abuse cases in 1993. My cases were primarily for physical, care, mental, undue influence, duress, fraud, financial, theft, real property, trust, and will abuse. I have to say that the more that things change they also stay the same. The same types of abuse still occur, and they always will. The cases were difficult then, and they still are. These cases take time and expertise. There is often difficulty obtaining evidence. And defendants really fight these cases, always arguing that nothing wrongful occurred, that the victim rightfully knew what they were doing and of their own free will, and in physical abuse cases that the injury naturally occurred due to the victim’s naturally poor condition. In other words, everything was known and on the up-and-up. Defendants in these cases count on the prospect that you will have difficulty proving the case, and that you will go away eventually for lack of resources and time. Nothing has really changed.

We should ask, what resources are available to fight elder and dependent adult abuse?  The first line of prevention and defense includes good people who are family, friends, professionals such as doctors, bankers, caregivers, accountants and financial advisors, and sometimes other third parties. Will these people recognize the possible or actual abuse, and then also take action? Do they even know what action might be possible and who to contact?  If so, most likely only to a certain limited extent.

The next line of defense probably includes law enforcement, adult protective services and the district attorney. Most likely these people only get involved because someone in the first line of defense has contacted them. I have previously discussed the inadequacy of the second line of defense – they simply do not have the time and people power and resources to handle the numbers of possible or actual abuse cases, or to stick with the cases long-term. They can pick some cases to attempt to handle.

I would say that the third line of defense includes the private attorneys. There are resources in this category that are under utilized, at least in part because people in the first category don’t know who to contact, people in the second category don’t know who to contact and aren’t authorized to contact or won’t contact people in the third line of defense, and it is also true that private attorneys also have resources and abilities that are not unlimited and each case must also be evaluated.

Improvements can be made to the situations described above. In particular, problems and issues relating to people in the first category, the first line of prevention and defense, can be improved by getting the information out so that they can better spot abuse or possible abuse and take action. Problems and issues relating to people in the second category, the second line of defense, can be improved with additional funding or monetary resources, and by having people in the second line of defense refer people or cases to the private attorneys in the third category or third line of defense.  And efforts can be made to further educate attorneys in the third line of defense about the procedures, causes of action, and remedies that are available to them. Similarly, additional effort needs to be made to educate the courts, judges, and other legal system professionals about types of abuse, evidence that abuse has occurred, and the procedures, causes of action and remedies available.

And let me discuss one additional program, the ombudsman program, which every county in California is supposed to have, and the members/volunteers of which go into the nursing homes (SNF) and residential care facilities (RCFE) and similar entities to check on the care provided and advocate on behalf of the residents. I’m a board member of Ombudsman Services of San Mateo County, California. This is a tremendous nonprofit organization. They do great work. Ombudsman Services organizations do vary from county to county – they are run different, they have different funding, they have different numbers of volunteers, they have different training, they have different decision-making processes, and some are county-run whereas other’s are separate nonprofit entities, etc. Here is a link to Ombudsman Services of San Mateo County, http://ossmc.org/. I ask that you also donate to them if you wish.

That’s all for now. These cases really haven’t changed for over 20 years, in my experience. You might hear a commercial about reporting elder abuse, and those commercials are important, but it is really about having numbers of boots on the ground that make a difference. If the boots and referrals aren’t there, nothing will be done or remedied, and it goes on and on.

Dave Tate, Esq., San Francisco and throughout California, http://californiaestatetrust.com

 

Thank You! 2015 Blog Results: 10,995 Views; 7,401 Visitors

Posted on by

Just a quick post about the 2015 results for this blog. We had 10,995 views, by 7,401 visitors. That’s a lot of views and visitors. Please spread the good word. Best wishes. Dave Tate, Esq. (San Francisco/California)

I have been working on an anti-SLAPP motion opposition – this statute really has problems, and should be changed . . .

Posted on by

I see that I haven’t posted for about 10 days. But I’m returning. I have been working on an opposition to an anti-SLAPP motion, and also detailed discovery meet and confer.

The anti-SLAPP motion is at Cal. Code Civ. Proc. section 425.16. I have not been involved in one of these motions previously. This is off topic for my blogs, but I just have to say that this statute has real problems, the Legislature and the courts have recognized that the statute is ripe for improper use and abuse, and, really, it should be amended or removed entirely.

In theory the purpose of the statute sounds fine, apparently it was believed that there were too many lawsuits being brought against defendants who were simply exercising their protected first amendment rights, so the Legislature enacted a statute allowing a defendant to file an anti-SLAPP motion within the first 60 days after being served with a complaint or a cross-complaint, requesting the court to dismiss the action, or certain of the causes of action, with prejudice, when those causes of action complained of are actions taken by the cross-defendant or defendant which were merely an exercise of his or her first amendment rights. I can agree with that in theory.

The problem is that any cross-defendant or defendant can file such a motion, for example when the cross-defendant/defendant first files a complaint as a plaintiff, and then the defendant in that lawsuit files a cross-complaint or a separate lawsuit against the original plaintiff. In that circumstance the original plaintiff, who is now a cross-defendant or a defendant in a new lawsuit claims that the cross-complaint or the new lawsuit was brought simply because the original plaintiff who is now the cross-defendant/defendant filed his or her original complaint, which is a protected first amendment action.

If the now cross-defendant/defendant who brings the motion can establish a prima facie showing of his or her protected activity, the burden shifts to the now cross-complainant/plaintiff to show (1) that the cross-complaint or new lawsuit wasn’t brought because of the protected activity (the filing of the original lawsuit) or (2) that the cross-complainant/plaintiff has sufficient evidence to prevail on the cross-complaint or law lawsuit. Just describing this scenario is ridiculous.

The hearing is supposed to be within 30 days after the motion is filed, although it can be extended, which means that the cross-complainant/plaintiff most likely has very, very little time to produce sufficient admissible evidence that the lawsuit isn’t about protected activity, and that he or she already has sufficient evidence that he or she will prevail in the case. This puts a very high burden on the cross-complainant/plaintiff in a very short period of time before any discovery has been propounded or completed, and the cross-complaint or complaint is subject to dismissal with prejudice.

As you might guess, this creates a situation where a cross-defendant/defendant can abuse the statute and bring an anti-SLAPP motion where it really wasn’t intended to apply, but with the hope that the cross-defendant/defendant will get lucky with the judge’s discretionary perspective, or that the cross-complainant/plaintiff doesn’t have sufficient evidence yet or isn’t allowed sufficient time to put the evidence and legal authorities together. On a motion for summary judgment the opposing party gets 75-80 days, or more, to conduct discovery and prepare an opposition. On an anti-SLAPP motion the opposing party gets perhaps 17-18 days.

California Code of Civil Procedure section 425.16 really should be changed.

Onward. Enjoy.

Dave Tate, Esq., San Francisco and California, http://californiaestatetrust.com, http://auditcommitteeupdate.com

Is Your Trust, Estate, Power Of Attorney, Conservatorship, Or Care Situation Contentious?

Posted on by

Are there disagreements and disputes in your trust, estate, power of attorney, conservatorship or care situation? That’s not unusual. In fact, based on my experience, I would have to say that it’s pretty common. But it can also be a game changer.

Generally a fiduciary such as a trustee, executor or conservator, and sometimes an attorney in fact, should always hire an attorney when challenging or difficult issues or significant assets are involved. The question is whether one of the parties who is involved in the situation has, or needs to, or may, or likely will hire an attorney with a view toward litigation? That’s a game changer when that possibility might occur or actually does.

Trust, estate, conservatorship, power of attorney, care and elder abuse situations and litigation are complicated legal practice areas that typically can involve a lot of emotional feelings and mistrust, and that require the attorney to know multiple areas of law and court procedure.

If you are a fiduciary such as a trustee, executor, conservator or attorney in fact you need to hire an attorney who can advise you properly about your responsibilities and on the administration of the trust, estate and assets, or on the care and daily living needs of the conservatee or person in need, with a view toward helping you to satisfy your responsibilities effectively and correctly, practicing prudent risk management and documentation, avoiding liability and litigation, and prevailing in court if the situation ends up in court.

If you are a beneficiary you need to hire an attorney who can steer you correctly to help you protect your rights and obtain the assets that were intended for you, and not waste your resources and the resources of the trust or of the estate, or possibly cause you to be surcharged for the attorneys’ fees of the other side, with a view toward prevailing in court if the situation ends up in court. If you are a beneficiary you also don’t want to unknowingly contest a trust or will or possibly disinherit yourself.

And if you are a trustor who is no longer trustee, or a principal under a power of attorney, or a conservatee, you need to feel and know that your physical, mental and financial needs and rights are correctly and timely cared for and protected, and you might also need to be represented by legal counsel. In fact, if the situation ends up in court, in some situations, such as in a conservatorship, you have an absolute right to be represented by an attorney, and in other situations the court should and will on its own appoint legal counsel to represent and advocate for you.

For additional information, the following is a link to my summary paper discussing trustee and beneficiary responsibilities and rights, and you can also find helpful information about other situations on other posts on this blog, CLICK HERE

Contact me if you would like to discuss your situation. You can contact me by sending me an email at davetateesq@gmail.com. Before we discuss your situation I will need to know the names of the people and attorneys involved to check for any possible conflicts.

Wishing you the very best,

Dave Tate, Esq., San Francisco and throughout California

DTatePicture_Square