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.

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My Dearest Sister Deb . . . God Bless And Prayers Forever . . . I am Doing My Best To Bring About Your Wishes . . . And To Find Out And Reconcile What Happened . . . Your Loving Brother Dave

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For me and for Deb’s many family members and relatives and friends, Deb will always be remembered for the vibrant, loving, outgoing, happy and positive-looking, helping, and outdoorsy person that she is, was and had been. Deb loved the beach (thus the picture above), and as those close to her know, Deb loved her Annie (below).

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I received a phone call on Sunday, September 12, 2021 at about 8:30 am California time (11:30 am Florida time), during which I was told that my dearest sister Deborah Trotta (Tate) was missing, and had been missing since the day before on September 11. My responses several times were – yes, do immediately call the police. Following a couple of calls and texts (and I immediately left a phone message and texted Deb on her phone), and a short time later, I was told that Deb’s body had been found on the beach which was near her home (Martin County, Florida).

This is in memory of Deb and to honor and remember her for the fully-beautiful person that she is and was, and to wish for God’s blessings and prayers for her. I am also working to bring about Deb’s wishes and what she would have wanted, and to find out and reconcile whatever happened, achieve whatever closure is possible, and express sadness for Deb and what she must have been feeling and went through.

In the best of worlds and for some situations what is said above might be enough, and for people to have their memories. But this is not the best of worlds or the standard situation. Deb’s death and her situation can only be described as a tragedy. People who care about Deb, and there are many, naturally want to share, and to know and are asking what happened – how could this happen? I have been asking and trying to obtain information since the first phone call that I received on September 12. Information is missing, information has been requested, and very unfortunately information and access to that information are not being provided. What aren’t fully known are the “what” and the “why” of what happened? Except from family and relatives and close friends who care and are concerned, information and documents about Deb and specifically what happened and what was communicated on September 10-12, 2021, and the week(s) before are not forthcoming. Thus, it is impossible to reconcile what might or might not have occurred, and why, and to reach closure. Instead, the tragedy, the grief and grieving, and the wondering are made worse and are prolonged for those who care.

I have been told that Deb sent a text at 5:37 pm Florida time on September 11. I requested a copy of the text – my request has been denied – I have been told that the text is private. Deb wasn’t a private person and wouldn’t have been a private person about these types of matters, at least not with me or with her family and relatives and close friends.

It is my understanding that Deb made a phone call on September 11, and asked about Annie. I have been told that Annie wasn’t with Deb – it would have been very out-of-place and unnatural for Deb to have been without Annie, and at night, and all night, and all the next morning until almost 12 Noon the next day.

I have been told that Deb left a note. I requested the actual wording, and a copy. Neither of which have been provided.  I have been told a couple of different but somewhat similar versions. If there is a note, and if it is in fact by Deb, from what I have been told it sounds to me like the possible note is out of despair and final resignation – and Deb’s then lack of the control and ability to complete and to bring about what I and others had been working on with Deb – like there had been an event or a catalyst on September 11. There are also any number of different scenarios about what could have occurred, and did occur, prior to and at the beach, including interactions with other people. Deb could be a fighter, and she had a natural forward-looking generally positive view of and approach to things and life. The possible note also sounds like Deb named Annie as a recipient or the recipient of Deb’s worldly things and possessions. Deb deeply loved and cared for and about Annie, who was Deb’s greatest and closest in-person and always present joy and solace. On September 13, I communicated that we will take Annie. Our having Annie also has been denied. In addition to her wishes, Deb had communicated who she would have considered acceptable for Annie, and who definitely was not.

All of this and what occurred should be an open book. But it isn’t. What happened needs to be known – for Deb, and for me, and our family and the many relatives, and Deb’s friends and very long-time friends, and our Dad (deceased 2015), and the Tate and Zitter families both alive and deceased, and Anne Tate (Zitter) (deceased), and for legacy and family to follow, and hopefully for some closure.

Deb used her phone as a primary means of communication, as do many people – calls, messages, texts, emails, pictures, recordings, internet, etc. Her phone is another key. Did she have it with her, and when? When did Deb use or try to use her phone on September 10-12? When did other people contact or try to contact Deb? I was told on the morning of September 12, that Deb did not have her phone with her. If true, that also would have been very strange and unnatural, concerning, troubling and alarming, including as the time and the day and then the night progressed and moved on.

I am informed that the Sheriff’s Office has Deb’s phone – I don’t know where they found it, or when. I have asked the Sheriff’s Office to safeguard and to preserve Deb’s phone and what is on it. I have also asked for access.

I am informed that under Florida law the “next of kin” or “representative” (husband) of Deb has apparent authority over her phone and what is on it – and what to do with it – whether to safeguard, preserve and share the information and memories that are on Deb’s phone, or to keep them hidden or secret, or to delete, destroy or erase forever the memories, information and life of activities – Deb’s life and activities. I have requested access to Deb’s phone, that Deb’s phone information be shared, and that Deb’s phone and what is on her phone, and her phone account access be safeguarded, kept active, and preserved, and not be deleted, destroyed or erased. This request also has not been agreed to, which in this case means that it has been denied. Florida, California and other states need legislation and law changes on phone access and information for the close family and relatives.

I’m not prone to supposition. Presumably Deb was at the beach (alive) for a considerable length of time beginning on September 11. People probably or certainly might well have seen her and her car during the day and the night. From my view, if I had known that Deb, my beloved sister, should have or normally would have been at her home on September 11 or by a certain time, but wasn’t, and also was out of the house without her Annie, and at night, and all night, and all the next morning until almost 12 Noon, I would have known and certainly would have thought that something was very wrong and out-of-place beginning on September 11 and thereafter. I would have been calling and texting Deb, and her friends and family and relatives. Anyone who might know or have information. I would have been out looking for Deb including at the beach which she frequented, and looking for Deb’s car (found in the beach parking lot, I am told), and asking others to look for Deb, and contacting the Sheriff’s Office. After calls and texts, the beach and the parking lot would have been my next frantic search. Most people would have done so, I believe. Perhaps that happened, but if it did, I haven’t been so told. There is a dearth of information being provided.

There is more – much more is known, including things about divorce and what was being worked on for and with Deb. As Deb’s surviving brother I cannot be silent on this. Deb would want me and others to speak and to take action and to find out in this situation when Deb cannot. Deb also would not want the information and documents, and her memories and life of activities, and access to them, to be controlled and withheld and erased from the people who care about Deb and who are asking and wondering and thinking about her and what happened. From the first phone calls on September 12, I requested a full investigation and complete information to learn what had happened that would lead to what has at this point been referred to as death by gun shot.

This is a summary. I’m also not discussing the tragedy as a lot of information isn’t known. It is my experience in cases that what happened remains speculative or at least unconvincing unless all of the significant information is obtained, shared, recreated, and critically evaluated. And in this case information, documents and events also are in conflict or are simply strange and out-of-place and don’t make sense. In any event, whatever the eventual analysis, the “why” and the “how” did this happen, and how could or should this have been avoided and prevented are important and are needed, as are also honoring and bringing about Deb’s wishes.

Please say a prayer for Deb and for other people who you know who are in her or similar situations. Deb is remembered and will be remembered always and thought about often. I can tell you that this is definitely true for me and for other of Deb’s family and relatives and friends.

Deb made known her wishes and intentions, what she wanted and would have wanted, and what she would not have wanted, including for her beloved Annie. We do need to find out and attempt to reconcile what happened, and to bring about Deb’s wishes – to care for Annie as Deb wanted – to get Deb’s ashes to California as she wished (and where Deb long wanted to be able to move) – and for Deb’s things and belongings and what she had and owned in this world to go for the purposes and to whom she wanted, and would have wanted in this situation, and as she wished.

I also thank everyone who is asking about Deb, and about what happened, and who is concerned, and who is sharing information and what they know or have heard. Please, yes, I am requesting that anyone who has any information or who has heard something or anything, whatever it might be, that might be relevant to what happened, or possibly why, or what was going on, to help reconcile and piece all of this together and possibly bring some closure, and to please reach out to me or to other of Deb’s family, relatives and friends. I am easy to find – try email at tateatty@yahoo.com or if that doesn’t seem to work try davetateesq@gmail.com.

My dearest Deb, my sadness for you is absolute. You will always and everywhere be with me and in my thoughts and prayers. Your loving brother, God bless, and prayers, and always, Dave

That’s all for now. More to follow.

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Next in Britney Spears conservatorship? Possibly no changes, or new conservator(s), or the lessening of restrictions, or termination . . . .

If you have been following the news and developments in Britney Spears’ conservatorship case, undoubtedly you have come to realize that the Judge in a conservatorship case, and, indeed, in almost all probate court cases, has significant discretionary decision-making authority within the parameters of the law and the facts of the specific case.

Most logically it would be up to Ms. Spears to file a petition or petitions with the Court if she wants to change anything significant relating to her conservatorship. Other interested persons also can have legal standing to file their own petitions in the case; however, most likely it would be more persuasive with the Court for Ms. Spears to be the person who would file a petition to remove a conservator or to appoint a new conservator or co-conservator, or to lessen the conservatorship limitations or restrictions on Ms. Spears, or possibly to terminate the conservatorship.

Assuming that the conservatorship continues, and for as long as it continues, the Judge does have the authority to appoint, remove and replace a conservator. In Ms. Spears’ case conservators have already been appointed and added, and have resigned.

California Probate Code section 2650 (Causes for Removal) states the reasons for which a conservator may be removed. Again, the Judge has significant discretion. Section 2650 primarily is focused on the conservator’s actions and inactions and whether or not those actions and inactions are in breach of his or her fiduciary duties. Section 2650 also lists as one criteria the risk that the conservator’s actions might in the future be in breach of his or her fiduciary duties.

Interestingly, section 2650 does not specifically list difficulty or inability of the conservatee and the conservator to communicate or the conservatee’s wishes; however, in Ms. Spears’ situation I would argue that her wishes should carry significant importance, and that the communications and ability to communicate or the lack thereof between Ms. Spears and her conservator also should be considered. Also note that in some situations pertaining to a conservatorship, or to a power of attorney, or to a trust administration, consent or informed consent when possible also might have some relevance – in other words, communicating with the conservatee, or with the principal, or with the settlor/trustor to inquire about her or his wishes won’t necessarily control the decision-making, but those communications and the ability to communicate or not might have relevance.

A conservatorship is a court (i.e., State or Government) action that limits the conservatee’s rights. Thus, it is recognized the restrictions upon a conservatee that a Court orders should be the least restrictive under the circumstances. Accordingly, a conservatorship also can be modified to lessen the restrictions that have been ordered on the conservatee.

Below I have pasted California Probate Code sections 1861, 1862, and 1863 which pertain to terminating a conservatorship. Section 1861 states who has legal standing to petition for termination of the conservatorship. Section 1862 provides that the petition must be brought by way of a noticed hearing.

Section 1863 provides additional legal and procedural requirements including that the conservatee can request a trial by jury, and that witnesses may appear or be presented both in support of the conservatorship and in opposition to the continuance of the conservatorship.

Section 1863(b) provides as follows: “(b) If the court determines that the conservatorship is no longer required or that grounds for establishment of a conservatorship of the person or estate, or both, no longer exist, the court shall make this finding and shall enter judgment terminating the conservatorship accordingly.” Thus, in support of termination, it can be argued that the conservatorship is no longer required, and also that the grounds for establishment of the conservatorship no longer exist. Those are two entirely different standards. Depending on the facts of the case, it might be easier to argue to the Court that the grounds for the establishment of the conservatorship no longer exist, or, perhaps, that if the conservatorship petition was just now being brought, under the current facts the conservatorship would not be granted. Both arguments should be made if they can be supported by the current facts.

Section 1863(d) also adds: “(d) Termination of conservatorship does not preclude a new proceeding for appointment of a conservator on the same or other grounds.” Thus, termination of the conservatorship does not mean that a new petition for conservatorship cannot or won’t be brought in the future if it it believed that a conservatorship is again warranted.

The following are California Probate Code sections 1861, 1862 and 1863:

California Probate Code, Conservatorship, Chapter 3, Termination

Probate Code Section 1861

(a) A petition for the termination of the conservatorship may be filed by any of the following:

(1) The conservator.

(2) The conservatee.

(3) The spouse, or domestic partner, or any relative or friend of the conservatee or other interested person.

(b) The petition shall state facts showing that the conservatorship is no longer required.

(Amended by Stats. 2001, Ch. 893, Sec. 21. Effective January 1, 2002.)

Probate Code Section 1862

Notice of the hearing on the petition shall be given for the period and in the manner provided in Chapter 3 (commencing with Section 1460) of Part 1.

(Enacted by Stats. 1990, Ch. 79.)

Probate Code Section 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, or the spouse, or domestic partner, or any relative or friend of the conservatee or other interested person may appear and support or oppose the petition.

(b) If the court determines that the conservatorship is no longer required or that grounds for establishment of a conservatorship of the person or estate, or both, no longer exist, the court shall make this finding and shall enter judgment terminating the conservatorship accordingly.

(c) 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.

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

(Amended by Stats. 2001, Ch. 893, Sec. 22. Effective January 1, 2002.)

There are no Westlaw Notes of Decisions for section 1863 – meaning that there appear to be no California cases that discuss section 1863 or how it is or is not to be applied by the Court.

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Best to you. David Tate, Esq. (and inactive CPA)

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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.

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

Litigation, Disputes, Mediator & Governance: Business and Commercial, Trust/Probate, Real Property, Governance, Elder Abuse, Workplace, Investigations, Other Areas