A good article and a reminder for lawyers and others who serve on boards – be aware of potential conflicts as you wear multiple hats, Click Here (article by Adler & Colvin).  Although I recently signed my board conflict disclosure statement with the St. Vincent de Paul Society in San Francisco, potential conflicts need to be considered throughout the year, of course.

Here is a link to an article by Janet Brewer on a topic that never goes away or out of fashion: how to deal with a dishonest or uncooperative fiduciary, Click Here.

And, as chance would have it, I had a discussion about just this topic with another attorney today.  Unfortunately it has been my experience that some trustees and executors just don’t behave like the fiduciaries that they are.  These problems typically occur in split or divided family situations where there have been multiple marriages and/or where the children haven’t gotten along for years.

In a situation with significant assets at risk, where a trustee or executor steals, or makes clearly unwise financial decisions, or fails to distribute assets after it is clearly time to do so, the decision to file a legal action isn’t so difficult to make.  But it is expensive to pursue your rights in court.  And in many cases the assets at risk are not so significant, or the trustee or executor’s wrongful actions are more in the nature of delay or lack of cooperation.

As the trustee or executor uses the trust or estate assets to pay his or her attorneys fees, and squandering assets as he or she does so, the beneficiary who is out of luck must retain counsel on his or her own nickel.  While it is true that the court could ultimately charge the trustee or executor personally with his or her attorneys fees, such a determination typically is not made until after there has been a finding of fact, i.e., a trial.  And in many situations, such as when the trustee or executor delays or is uncooperative, it typically isn’t clear how the court will ultimately decide.

I believe the best way to move these situations to resolution is to have a proactive probate judge who promptly and early in the case issues appropriate orders, such as the exchange of information that has been delayed or withheld, timetables for actions to be completed, and accountings.  Most judges are not willing to make such orders early enough in a case.  In fact, in my experience, I can only recall one judge who did so as a matter of practice, typically at the first hearing.  And those early orders had nothing to do with who was right or who was wrong – the purpose was to get information produced to expedite the case, and reach settlement or determined right and wrong more quickly.

Scott S. v. Superior Court of Orange County (California Court of Appeal, Fourth Appellate District, Case No. G046468, March 14, 2012)

Holding that in a LPS (Lanterman-Petris-Short) conservatorship a Conservator who is seeking authority to consent to non-emergency medical treatment for the Conservatee must show by competent admissible evidence that the treatment is medically necessary.  In this case the Public Guardian for Orange County sought authority to amputate the Conservatee’s infected toe.  The Conservatee contended that the trial court erred by relying on a physician’s written declaration to find that the amputation was medically necessary.

The Conservatee contended the Public Guardian could not show the amputation was medically necessary because the declaration was hearsay. The Public Guardian conceded the declaration was inadmissible hearsay. “But the Public Guardian asserted that the Conservatee’s capacity to consent to medical treatment was “’the only issue in a proceeding brought under Welfare and Institutions Code [section] 5358.2,’” and “’medical necessity is not a required element of proof under that statute.’”

“’Except in emergency cases in which the conservatee faces loss of life or serious bodily injury, no surgery shall be performed upon the conservatee without the conservatee’s prior consent or a court order obtained pursuant to Section 5358.2 specifically authorizing that surgery.’” “(§ 5358, subd. (b).)”

“In sum: Before the court authorizes an LPS conservator pursuant to section 5358.2 to consent for the conservatee to nonroutine, nonemergency medical treatment, it must find (1) the conservatee lacks the capacity to give or withhold informed consent, and (2) the treatment is medically necessary — i.e., (a) the conservatee has a medical condition that requires the recommended treatment, and (b) without treatment, a probability exists the condition will endanger the conservatee’s life or seriously threaten his or her physical or mental health.”

On appeal the Court held that the trial court’s finding that the amputation was medically necessary was invalid as the trial court’s decision was based on inadmissible written declaration out-of-court hearsay testimony.  The Court did find that the in-court testimony from a psychologist was sufficient to support the trial court’s lack-of-capacity finding.

However, the Court also “express[ed] no opinion on what kind of evidence is required, other than admissible evidence. In particular, we do not hold the LPS conservator must in every case call the treating physician to testify about medical necessity, if other relevant evidence on that point is admissible.”

Per this article from the Institute on Assets and Social Policy the financial security of seniors has gone from bad to worse primarily due to declining household assets, inadequate household budgets, and increasing housing costs, Click Here.

New article, California Advisor Convicted of Selling an Annuity, Click Here.  Of course, I don’t know what is true or not, but it is an interesting article.

K.G., an Incompetent Person, etc., et al., Plaintiffs and Appellants v. Larry Meredith, as Public Guardian, etc., Defendant and Respondent (California Court of Appeal, First Appellate District, March 8, 2012, Case No. A132087)

The decision in K.G. v. Meredith is lengthy and relates to more than one important issue.  The following summary pertains to the nature of the finding that the trial court must determine before making a finding that a gravely disabled person under the Lanterman-Petris-Short Act lacks the right to make his or her own decisions on medical treatment for his or her grave disabilities, including involuntary administration of antipsychotic medication under Cal. Welfare & Institutions Code §5357(d); and the nature of the notice that must be provided to the proposed conservatee as a constitutional due process right.  Although the case involves an LPS conservatorship, you might also find the decision relevant for similar medical decision and drug or medication issues that may arise in an ordinary conservatorship of the person with medical decision making authority.

In pertinent part Cal. W&I Code §5357(d) states:

“5357.  All conservators of the estate shall have the general powers specified in Chapter 6 (commencing with Section 2400) of Part 4 of Division 4 of the Probate Code and shall have the additional powers specified in Article 11 (commencing with Section 2590) of Chapter 6 of Part 4 of Division 4 of the Probate Code as the court may designate. The report shall set forth which, if any, of the additional powers it recommends. The report shall also recommend for or against the imposition of each of the following disabilities on the proposed conservatee:

* * * * *

     (d) The right to refuse or consent to treatment related specifically to the conservatee’s being gravely disabled. The conservatee shall retain all rights specified in Section 5325.”

On appeal, the Court of Appeal found:

“Petitioners are entitled to a judicial declaration that, before a trial court may impose a medical disability pursuant to section 5357(d), the court must find that the conservatee or proposed conservatee is incapable of making rational decisions about medical treatment related to his or her own grave disability, that is, lacks the mental capacity to rationally understand the nature of the medical problem, the proposed treatment, and the attendant risks. In doing so, the court must consider the Riese factors, i.e., (a) whether the patient is aware of the nature of his or her grave disability; (b) whether the patient is able to understand the benefits and the risks of, as well as the alternatives to, the proposed intervention; and (c) whether the patient is able to understand and to knowingly and intelligently evaluate the information required to be given patients whose informed consent is sought and otherwise participate in the treatment decision by means of rational thought processes. To permit meaningful review, the record must reflect that the court was aware of this legal standard, that it considered evidence relevant to the standard, and that it made a finding utilizing that standard.

While we grant declaratory relief, we must remand for the trial court to consider whether mandamus relief should be granted. We do so for two reasons. First, remand will give the trial court an opportunity to consider whether the Public Guardian has taken, or will take, necessary action to comply with the law. Second, we recognize that the decisional incapacity finding is the superior court’s responsibility, regardless of the forms submitted by the Public Guardian. The trial court is in the best position to determine in the first instance whether mandamus relief is appropriate.”

The Court also held that as a constitutional right to due process the proposed temporary conservatee also must be served with more than simply notice of the hearing although the statutes do not require such. You should review the Court’s decision for the complete detailed discussion.  However, in pertinent part the Court stated:

“The notice provided by the Public Guardian to the proposed conservatees here did not describe the legal standard for imposition of the disability nor did it require any separate response. It provided contact information for the public defender’s and patient’s advocate’s office, but did not ensure representation. The notices in the record do not set forth a date, time and place for a hearing on the petition or, in the alternative, a date the temporary conservator will be appointed if no objection is interposed. The revised notice form submitted by the Public Guardian is not materially different. The revised physician’s declaration form prompts the declarant to provide evidence on each of the three Riese factors, but there is no indication that, contrary to the Public Guardian’s prior practice, this declaration form itself will be served on the proposed conservatee before the court imposes the section 5357(d) disability. We do not believe that mere absence of objection by an unrepresented party to an inadequate notice given by the Public Guardian can be regarded as the equivalent of “informed consent” to involuntary medication. (See Riese, supra, 209 Cal.App.3d at p. 1320.)

We find that the current practice of imposing a section 5357(d) disability provides inadequate notice and opportunity to be heard and therefore violates due process. (FN:20)  For the reasons stated ante, we remand for the trial court to consider the appropriateness of mandamus relief.”

New article link, researchers find that computer games can change your brain and can improve creativity, decision-making, concentration and dexterity, Click Here.  Of course, anything in excess isn’t good, computer games aren’t everyday life, and they diminish real human interaction and problem solving.

According to the following article nursing home care is improving based on federal inspections, Click Here, but nursing homes that receive only one and two stars out of a total possible five stars still stands at a huge 35%, and nursing homes that received only one, two or three stars stands at 56%.  The following is a link to complete rankings from the Centers for Medicare & Medicaid Services, Click Here. A nursing home is required to provide care and services designed to attain or maintain the highest practical physical, mental and psychosocial well-being reasonably possible for each resident, and to protect each resident from injury.  With all of the current talk about risk management across industry lines, it is clear that there are ample opportunities for improvement in nursing home care risk management practices.

The following is a link to a Forbes article by John Wasik, Why Elder Financial Fraud is on the Rise, Click Here.