Updated questions to consider to help facilitate dispute and litigation mediation and resolution . . .

I have attached as a pdf below my updated questions to consider to help facilitate dispute and litigation mediation and resolution . . . I hope that you find it useful. Please also pass it along to other people who would be interested. Dave Tate, Esq. (and inactive CPA).

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Best to you,

David Tate, Esq. (and inactive CPA)

  • Litigation, Disputes and Trials – Business, Contract/Commercial, Owner, Founder, Shareholder and Investor; Trust, Estate, Probate, Elder/Dependent Abuse, Conservatorships, POA, Real Property, Health and Care, and Contentious Administrations, etc.
  • Mediator and Dispute Resolution
  • D&O, Governance, Workplace/Employment, Officers, Boards, Investigations, IP, Auditing and Internal Controls, Law, Legislation, Communications, Authority, Duties, Responsibilities, Rights and Liability, Risk and Success Management, and Dispute Resolution and Mediation, 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 only as an attorney in California.

Spouse, partner, or other person exploitation by control and possession of the information and assets . . . a possible issue for estate planning attorneys, and FINRA, investment, and financial professionals.

The disputes in most of my litigation cases arise from genuine disagreement over an issue of fact or law – e.g., factually, what happened, what didn’t happen, what should have happened, what was intended, and what laws, presumptions, burdens of proof, and rules of evidence apply?

Unfortunately, a growing number of cases in which I represent clients arise from an element of wrongful control, possession, or dominance by the other person or persons. The person who wrongfully controls, possesses, dominates or manipulates, i.e., the abuser, has power, at least temporarily, and sometimes seems to enjoy or relish having that position of power and control. The person who is not in control or possession, or who is being dominated, and possibly even threatened, gaslighted or lied to, i.e., the victim, is put to the difficult decision of what, if anything, to do about the situation. Typically, the abuser seeks to control the narrative. Often the victim is at a disadvantage which is being exploited, including, for example, a lack of money resources, mental or physical limitations, dependency or a feeling of dependency, being scared, coerced, intimidated or threatened, or perhaps feeling or being isolated or alone – in these situations, a trusted contact person, someone who the victim has designated (such as a trustee or an attorney in fact), family members and friends need to provide help and support to the victim. Unfortunately, sometimes the supposed trusted contact or designated person is the abuser. There is no limit to possible scenarios.

In California an estate planning attorney who represents joint clients owes a duty to each client – for example, important information that is communicated to the attorney by one of the joint clients should be, or at least might need to be, communicated by the attorney to the other joint client. Thus, although an estate planning attorney does not have an affirmative duty to evaluate or assess whether there exists wrongful or inappropriate control, possession, dominance or manipulation by one joint client against the other joint client, the attorney might well be in a position whereby she or he becomes aware of information that might indicate a wrongful or inappropriate relationship between the joint clients, and the likelihood of becoming aware of that information might increase depending on the particular questions that the attorney asks each of the joint clients, the information that the attorney gathers, and the attorney separately, independently meeting with each client.

The attorney is then put to a decision or choices depending on the circumstances. Certainly, yes, discuss the situation and the information with, and advise the possible disadvantaged or victim client. However, if the disadvantaged or victim client doesn’t authorize the attorney to help or to tell a trusted contact person of the disadvantaged for victim client, the attorney cannot do so. And, if the disadvantaged or victim client decides to not take protective action, or perhaps even decides to put or to keep the controlling or possessive client in control (although perhaps out of fear or a feeling of helplessness), the attorney will need to decide whether to continue representation or to withdraw from the representation and engagement.

FINRA’s recent heightened rulemaking relating to the possibility that a client is being subjected to a wrongful or inappropriate relationship is more focused on senior and adult financial exploitation and abuse – specifically applying to “specified adults”: customers who are age 65 or older or who are age 18 and older who the FINRA member reasonably believes has a mental or physical impairment that renders the customer unable to protect his or her own interests (see FINRA Rule 2165).

Recently enacted FINRA rules require a FINRA member to ask (perhaps even encourage) the customer to designate a trusted contact person who the FINRA member can contact when the member reasonably believes that financial exploitation of the specified adult customer has occurred, is occurring, has been attempted or will be attempted (see FINRA Rule 4512). However, the customer does not have to designate a trusted contact person, and, similar to the estate planning situation, the customer might in fact designate the abuser or might designate a person who later becomes an abuser, or might even name that person to be the customer’s agent to have control and to make decisions for the customer.

A FINRA member is required to know her or his customer (see FINRA Rule 2090 (“Know Your Customer”), Rule 2111 (“Suitability”), Rule 4512 (“Customer Account Information”), and perhaps Rule 2010 (“Standards of Commercial Honor and Principles of Trade”). SEC Regulation Best Interest (effective September 10, 2019) and related SEC Rules and interpretations also contain extensive broker-dealer compliance and diligence requirements, and also for those persons who are associated with the broker-dealer. Thus, similar to the estate planning attorney, broker-dealers and FINRA members might well be in a position whereby they become aware of information that might indicate a wrongful or inappropriate relationship between the joint clients, particularly in light of the questions that are asked of the clients, the information that is gathered, and broker-dealer and FINRA member/customer meetings. Also similar to the estate planning attorney, broker-dealers and FINRA members may then be put to having to make decisions or to different options and choices depending on the circumstances. However, contrary to the estate planning attorney, even absent customer consent, at least under FINRA Rule 2165 the FINRA member does or may have important temporary hold and reporting options. Note that the FINRA Rules and SEC Regulation Best Interest are detailed and extensive, and any specific discussion exceeds the scope of this post.

These obviously are developing and important issues and areas. More to follow.

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Best to you,

David Tate, Esq. (and inactive CPA)

  • Litigation, Disputes and Trials – Business, Contract/Commercial, Owner, Founder, Shareholder and Investor; Trust, Estate, Probate, Elder/Dependent Abuse, Conservatorships, POA, Real Property, Health and Care, and Contentious Administrations, etc.
  • Mediator and Dispute Resolution
  • D&O, Governance, Workplace/Employment, Officers, Boards, Investigations, IP, Auditing and Internal Controls, Law, Legislation, Communications, Authority, Duties, Responsibilities, Rights and Liability, Risk and Success Management, and Dispute Resolution and Mediation, 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.

California C.A.R.E. Court advances

I wrote about the C.A.R.E. Court in my blog post at: https://wordpress.com/post/californiaestatetrust.com/2421

It looks like the Court might now be referred to as C.A.R.E. Court although I am still also seeing CARE Court.

This new Court is progressing, and I expect that it will become law, although we need to wait for the final legislative statutory wording. A May 25, 2022, release from the Office of Governor Newsom states that the “California Senate Votes to Support CARE Court, as Leading State Business Organizations Join Expanding Coalition.” Governor Newsom proposed the CARE Court. The Court is SB 1338.

Here is a partial scan of the C.A.R.E. Court website through CalHHS:

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Best to you,

David Tate, Esq. (and inactive CPA)

  • Litigation, Disputes and Trials – Business, Contract/Commercial, Owner, Founder, Shareholder and Investor; Trust, Estate, Probate, Elder/Dependent Abuse, Conservatorships, POA, Real Property, Health and Care, and Contentious Administrations, etc.
  • Mediator and Dispute Resolution
  • D&O, Governance, Workplace/Employment, Officers, Boards, Investigations, IP, Auditing and Internal Controls, Law, Legislation, Communications, Authority, Duties, Responsibilities, Rights and Liability, Risk and Success Management, and Dispute Resolution and Mediation, 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.

Updated Risk, Uncertainty and Achievement Management Process – 11 Steps

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Best to you,

David Tate, Esq. (and inactive CPA)

  • Litigation, Disputes and Trials – Business, Contract/Commercial, Owner, Founder, Shareholder and Investor; Trust, Estate, Probate, Elder/Dependent Abuse, Conservatorships, POA, Real Property, Health and Care, and Contentious Administrations, etc.
  • Mediator and Dispute Resolution
  • D&O, Governance, Workplace/Employment, Officers, Boards, Investigations, IP, Auditing and Internal Controls, Law, Legislation, Communications, Authority, Duties, Responsibilities, Rights and Liability, Risk and Success Management, and Dispute Resolution and Mediation, 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.

Update re Deb’s case – filed Florida petitions to achieve Deb’s wishes – everything has been withheld including Deb’s ashes and Tate ancestry and legacy personal property, etc. . . .

In Deb’s case (my sister Deborah (Tate) Trotta) – I have had to retain a Florida attorney to achieve Deb’s wishes. Petitions were filed and served last week.

As a general course of action I try to resolve issues and disputes prior to initiating litigation – in that regard I had reached out and communicated, and my attorney also sent a pre-litigation letter to which there was no response. In any event, it has been eight months since Deb’s death – it is obvious that there isn’t going to be any cooperation, which I had been told previously, although I just didn’t comprehend the extent at that time, but I do now.

After the arguments and threats including threats of divorce and Deb’s decision and communication to finally divorce, everything has been controlled and kept including Deb’s ashes, the Tate ancestry and legacy personal property, pictures, jewelry, etc., the information, and all of the property, items and assets.

Deb was clear, for example, and it is admitted, that if Deb died, she wanted her ashes spread at Mt. Tamalpais and the California winery of one of Deb’s best life-long friends. Husband in Florida has controlled, and has refused to provide Deb’s ashes.

It is impossible for me to understand when people refuse even the obvious or basic duties and responsibilities, norms of simple human decency, or a decedent’s wishes including any possible partial closure for Deb and for her family, relatives and close life-long friends.

The post-death actions and inactions confirm and support information that Deb had said and texted about her situation, things that were going on, and the bad relationship and culture.

I personally continued trying to communicate through the end of February, 2022. Communications back to me had actually stopped on September 22, 2021 (just 10 days after Deb’s body was found on September 12), after I requested that I be provided what was said to be Deb’s last text to husband at 5:37 pm Florida time on September 11, 2021 – as possibly one of Deb’s last texts, obviously I wanted to know what she said and what was going on. My request was refused.

But I do have a slightly later text from Deb on September 11, 2021 at 2:46 pm (pacific time, which would have been 5:46 pm Florida time). Deb expressed concern that they apparently had no money as her credit card had been rejected for insufficient funds, she gave money to husband, and if their house was sold, she just wanted to be sure that she received her share and entitlements. Nothing about Deb supposedly going to end her life. Just the opposite in fact.

It is my understanding that Deb’s phone unfortunately also was under husband’s account (which was a mistake). I requested the phone and everything on it, which was denied. And I requested that the phone and everything on it and relating to use of Deb’s phone be preserved. I expect that there will be more about this later.

I have looked at enough of the actual facts and evidence, i.e., not the narrative that was given – I don’t believe that Deb ended her life. And there was no reason for Deb to shoot herself to end her life – instead, Deb had decided and communicated to take back control for herself and Annie. Deb needed to obtain information about and access to the financial assets, investments, accounts and money including what she had had, what she had brought in and what had happened to it, what and how investments had been made and possibly lost, and her entitlements for 20 years of marriage – so that she could act on her options and move with Annie, possibly to Marin, Sonoma, or Napa Counties in California which she loved. Deb also loved San Diego. Deb isn’t the one who handled, controlled, and knew and made decisions about the investments and the primary financial accounts, at least that’s my understanding from what Deb had said.

So to speak, the jury will always be out, as will also causation, and duties and responsibilities. Deb and her situation also offer important learning lessens and learning opportunities, and probably also for a broad range and number of people, relationships, elders, and professionals. These occurrences have also prompted me to put more emphasis on certain of my practice areas including returning to a heavier focus on husband-and-wife relationships; elder and dependent adult abuse; control and possession of information, assets and accounts; persuasion, undue influence, and duress; and related professional duties and best, better or recommended actions and practices including for wealth, investment, FINRA, and financial advisors and planners, and estate planning attorneys.

Unfortunately the Sheriff (and Medical Examiner) were provided a very incomplete, and thus select or misleading narrative, that doesn’t make sense and isn’t supported (based on what they wrote in their Reports). Also unfortunately, there was essentially no critical investigation or evaluation.

There are facts that are verifiable (and additional verifiable facts exist) – the argument the morning of September 11 (per the Sheriff and also admitted) more than 24 hours before a call to me or a call to Deb’s relatives and close friends or a call to the Sheriff about Deb supposedly being missing; the actual wording (per the Sheriff) and interpretation of the supposed note left in Deb’s car on a seat (and with no handwriting analysis); Deb’s wrist contusion (per the Sheriff and Medical Examiner); the abrasions (per the Medical Examiner); Deb’s body being covered in sand (per the Medical Examiner); no evidence of gunpowder stippling on the surrounding skin (per the Medical Examiner); and Deb’s prior communications, texts, pictures, and videos about what was going on, and more. As stated above, so to speak, the jury will always be out.

It took time before I was able to really think about and deal with Deb’s death, and the circumstances and lack of forthcoming information and cooperation. In due course, a loving and respectful-to-Deb obituary was published – prepared with the help of direct family members, cousins in three states, and close life-long friends (I have provided a copy below). Although there was a small, controlled event which was at Deb’s house in Florida – no Tate family members or relatives or life-long friends were invited – I only heard about it because I had reached out to some of Deb’s more recent Florida friends. Deb’s Florida cousins, although already nearby, weren’t even invited. I asked to attend via the internet, such as via Zoom or otherwise, the text that I received in reply was that my request was denied. For many, many years Deb had also been a flight attendant with Delta – she had lived in many different cities across the United States – Deb knew a lot of people.

Pursuant to Florida law, the decedent’s wishes control the disposition of her ashes. I must ask, why would anyone control and deny, and disrespect a decedent and her wishes for the disposition of her ashes?

In California (and I presume elsewhere including in Florida) if weaker or less satisfactory evidence is offered when it is within the power of the person to produce stronger or more satisfactory evidence (e.g., when evidence is hidden, kept secret, or withheld), the evidence that that person offers is viewed with distrust (Cal. Evid. Code Section 412), and in determining the inferences to draw against the withholding party, the trier of fact may consider, among other things, that party’s failure to explain or to deny the facts and the evidence, or his willful suppression of evidence (Cal. Evid. Code Section 413). I am sure that by the time this is over I will know a lot more about Florida law and evidence, although I already know a fair amount. There can also be spousal financial, and personal safety and safeguarding duties and rights – I know more about those as they pertain to California, including spousal fiduciary duties, but they can also exist in Florida. But this post isn’t a discussion of the law.

This situation cannot be allowed to stand. I now understand some of what Deb had been telling me about her situation. On June 5, 2021, Deb texted “If I am suicided, I didn’t do it.” On June 14, 2021, Deb texted pictures of bruises up and down her arms as there had been a physical fight or altercation.

Here is Deb’s obituary:

Thus, I have retained Florida counsel and petitions have now been filed and served. Onward. You can see a few other prior posts about Deb’s situation on this blog, and future updates will also be posted.

More to follow.

* * * * * * *

Best to you,

David Tate, Esq. (and inactive CPA)

  • Litigation, Disputes and Trials – Business, Contract/Commercial, Owner, Founder, Shareholder and Investor; Trust, Estate, Probate, Elder/Dependent Abuse, Conservatorships, POA, Real Property, Health and Care, and Contentious Administrations, etc.
  • Mediator and Dispute Resolution
  • D&O, Governance, Workplace/Employment, Officers, Boards, Investigations, IP, Auditing and Internal Controls, Law, Legislation, Communications, Authority, Duties, Responsibilities, Rights and Liability, Risk and Success Management, and Dispute Resolution and Mediation, 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.

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 To Prevent Isolation And Financial Elder Abuse – California Assembly Bill No. 1243, and White v. Wear

Elder abuse restraining orders are in the California news. See my prior February 7, 2022, post discussing recently enacted California Assembly Bill No. 1243, 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 discussion about the March 8, 2022, restraining order decision in White v. Wear (March 8, 2022, E076352) ____ Cal. App. 5th ________, in which the court upheld 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.

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.