Here is a link to an interesting CNN article, protecting your parents, keeping the sharks at bay (from financial predators), Click Here.

AMERICAN BAR ASSOCIATION

COMMISSION ON LAW AND AGING

SECTION OF INTERNATIONAL LAW

SENIOR LAWYERS DIVISION

SECTION ON REAL PROPERTY, TRUST AND ESTATE LAW COMMISSION ON MENTAL AND PHYSICAL DISABILITY LAW

REPORT TO THE HOUSE OF DELEGATES

RESOLUTION

RESOLVED, That the American Bar Association urges the United States Department of State and the United Nations and its member states to support the ongoing processes at the United Nations and the Organization of American States to strengthen protection of the rights of older persons, including the efforts and consultations towards an international and regional human rights instrument on the rights of older persons.

REPORT

This resolution calls on the relevant authorities within the federal government to support efforts to strengthen protection of the rights of older person, including consideration of an international and regional human rights instrument. As background and justification for this resolution, this report traces the movement toward an international convention on the rights of the older persons, and the national, international, and U.N. activities appraising and promoting the need for such a convention. The resolution is timely in that there is an increasing interest in a convention among governments and international non-governmental organization (NGOs) and the American Bar Association brings a valuable set of skills and values that can help guide upcoming developments.

See copy of complete report (21 pages) at Click Here.

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In Estate of Dito (California Court of Appeal, First Appellate District, Case No. A128921) the court addresses several important issues relating to financial elder abuse and an omitted spouse claim. Frank’s wife Rosana died in 1995. Elenice had begun working for Frank and Rosana as a live in housekeeper in 1994. Two years after Rosana’s death, at the age of 94 Frank married Elenice in 1997. Elenice was 28 when she married Frank. Frank and Elenice had a prenuptial agreement in which they both waived their rights to alimony, maintenance, and spousal support in the event of divorce or death. Frank died in December 2004.

Elenice petitioned for letters of administration and for her share of Frank’s estate as an omitted spouse, and also claimed that the prenuptial agreement and the surviving spouse’s waiver contained in it were unenforceable. Elenice also claimed that Frank’s daughter Barbara was liable for financial elder abuse and should be deemed to have predeceased Frank pursuant to Prob. Code §259. Barbara also petitioned to administer Frank’s estate and to admit his 1994 will to probate (the 1994 will identified Rosana as Frank’s wife). Subsequently Frank’s grandson Terrence (Barbara’s son) petitioned to administer the estate whereupon Barbara withdrew her petition to administer the estate.

The probate court bifurcated the issues raised in the competing petitions. The first issue to be tried was whether Elenice was Frank’s surviving spouse was entitled to receive a share of his estate as am omitted spouse pursuant to §21610 et seq., as well as whether the prenuptial agreement and the surviving spouse’s waiver contained in it were enforceable. After bench trial, the probate court found that Elenice was Frank’s surviving spouse pursuant to §21610 et seq. and was entitled to a share of Frank’s estate as well as that both the prenuptial agreement and the surviving spouse’s waiver in it were invalid and unenforceable. Those decisions were affirmed on an earlier appeal and are not at issue in this appeal.

After Terrence lost his appeal, Barbara initiated an action in the probate court, alleging that Elenice committed financial elder abuse against Frank and that as a result Elenice should be deemed to have predeceased Frank pursuant to §259. The court sustained Elenice’s demurrer on res judicata grounds holding that Elenice’s spousal share and her entitlement to receive a share of Frank’s estate was already determined at the prior trial and that decision was final, and that all parties had a fair opportunity to litigate the issue and Barbara’s attempt to plead the same spousal property entitlement under a theory of financial elder abuse was barred and should have been raised at trial. Barbara appealed.

The court of appeal in the current case reversed, holding that Barbara’s petition was not barred by res judicata, but affirmed the granting of the demurrer on other grounds, with leave to amend. The court held that the primary right at issue in the former proceeding was Elenice’s personal right under §21610 to receive a share of Frank’s estate as an omitted spouse, whereas the primary right at issue in Barbara’s petition was Frank’s right not to be abused or defrauded which was a primary right that belonged to Frank and to the people who were entitled to assert that right.

The court held that the new financial elder abuse allegations had no bearing on the determination whether Elenice was an omitted spouse entitled to receive a share of Frank’s estate pursuant to §21610, et seq. Section 21610 specifies that an omitted spouse shall be entitled to a share of the estate unless one or more of the exceptions in §21611 applies. A finding of elder abuse is not one of the listed exceptions. Further, even if the elder abuse issue had been raised in the prior proceeding, a determination that Elenice committed financial elder abuse would not be a proper basis for denying her entitlement to a share of the estate under §21610 et seq.

Barbara’s petition also sought a determination that Elenice was deemed to have predeceased Frank pursuant to §259 as a result of the elder abuse. The primary right at issue under §259 was also the right of Frank’s right to be free from abuse. Section 259 simply provided a remedy for that primary right.  A §259 claim is distinct from a claim that an omitted spouse is entitled to a share of the estate notwithstanding the fact that it seeks a result that may appear to be contrary to the prior determination by the probate court that Elenice was entitled to a share of Frank’s estate.

“The parties and the court below appear to be operating under the assumption that a person found liable for elder abuse is deemed to have predeceased the decedent for purposes of any entitlement to property, interests, and benefits the abuser would otherwise receive by reason of the decedent’s death. While that may be the practical effect of section 259 in some cases, the statute does not necessarily disinherit an abuser entirely but rather restricts the abuser’s right to benefit from his or her abusive conduct.”

“Section 259, subdivision (a) provides in pertinent part that “’[a]ny person shall be deemed to have predeceased a decedent to the extent provided in subdivision (c)’ ” where it is proven that the person is liable for elder abuse of the decedent, acted in bad faith, and was reckless, oppressive, fraudulent, or malicious in the commission of the abuse. (Italics added.) Subdivision (c), in turn, provides in relevant part that “’[a]ny person found liable under subdivision (a)… shall not (1) receive any property, damages, or costs that are awarded to the decedent’s estate in an action described in subdivision (a)… , whether that person’s entitlement is under a will, a trust, or the laws of intestacy….’”

Section 259 does not necessarily entirely disinherit an abuser but rather restricts the abuser’s right to benefit from her abusive conduct.  “Thus, a person found liable under subdivision (a) of section 259 is deemed to have predeceased the decedent only to the extent the person would have been entitled through a will, trust, or laws of intestacy to receive a distribution of the damages and costs the person is found to be liable to pay to the estate as a result of the abuse.”  “Section 259 does not necessarily eliminate the abuser’s entitlement to a share of the estate; it simply restricts the value of the estate to which the abuser’s percentage share is applied and prevents that person from benefiting from his or her own wrongful conduct.”  Barbara’s §259 claim did not affect or threaten the determination that Elenice was a surviving omitted spouse under §21610. Elenice was still entitled to her share of Frank’s estate as specified in §21610, although she was not allowed to share in any damages and costs that she could be liable to pay to the estate as a result of her alleged elder abuse.  The court also distinguished Estate of Lowrie (2004) 118 Cal. App. 4th 220, 225 (stating that Estate of Lowrie did not address the scope of the remedy under section 259 but instead focused on the issue of standing; therefore, the court’s general description of the statute’s effect is not authority for the proposition that section 259 operates to completely disinherit a person found liable for elder abuse).

ABA Journal of top 100 law blogs.  The ABA Journal is compiling the top 100 law blogs.  If you find the California Estate, Trust & Elder/Disability Litigation blog worthwhile please recommend this blog by completing the boxes on the short form by clicking ABA Journal (the boxes are at the bottom of the page).  You will also be asked for the link to this blog which is https://californiaestatetrust.wordpress.com.  Your submissions are due no later than September 9, 2011.  Thank you for your support.

Article link, a shortage of senior housing resources Click Here.

As if additional bad governmental financial news was needed, according to a new article at the current rates of use social security will be out of funds by 2017, Click Here.  I would welcome a prompt reassuring response or rebuttal, and a plan from the social security overseers.

Here is a link to a TMZ article (Click Here) about the upcoming probate dispute over the Dennis Hopper estate–although he was trying to complete his divorce, he was still married on the date of his death, but he wasn’t living together.  The result . . . more to follow.

ABA Journal of top 100 law blogs.  The ABA Journal is compiling the top 100 law blogs.  If you find the California Estate, Trust & Elder/Disability Litigation blog worthwhile please recommend this blog by completing the boxes on the short form by clicking ABA Journal (the boxes are at the bottom of the page).  You will also be asked for the link to this blog which is https://californiaestatetrust.wordpress.com.  Your submissions are due no later than September 9, 2011.  Thank you for your support.

In Bullock v. Philip Morris (California Court of Appeal, Second District, Case No. B222596) the court  affirmed a punitive damage award that is 16 times compensatory damages. The jury  ultimately awarded Bullock $850,000 in compensatory damages and $13.8 million in  punitive damages.  As you may be aware, pursuant to recent case law guideposts  punitive damage awards generally are allowed in the range of 3 to 4 times  compensatory damages and as an outside measure should not exceed 9 times compensatory damages as punitive damages must bear reasonable relation to compensatory damages.

I have included this case  discussion because punitive damages are warranted in some elder abuse cases, and  some of the justifying factors in Bullock also are present in select elder abuse cases.

Betty Bullock smoked cigarettes for 45 years from 1956 until she was diagnosed with lung cancer in 2001. In 2001, Bullock filed suit against Philip Morris. Bullock sought to recover damages for personal injuries based on products liability, fraud and other theories. Bullock died in 2003.

Pursuant to the holding in Bullock, in some cases there are exceptional factual circumstances that warrant the allowance of larger punitive damages as a multiple of compensatory damages: the evidence indicated that the defendant knew that the consensus was that cigarette smoking caused lung cancer and other serious diseases, and that smokers suffered lung cancer and other serious diseases at rates far greater than nonsmokers–despite that knowledge, defendant conducted a campaign to obscure and deny the truth. The court also held that larger punitive damages were warranted because of the defendant’s wealthy financial condition, the profitability of its misconduct, defendant knew and hid for a long period of time the dangers of its product, and the injuries caused to plaintiff were physical or mental in nature, not economic.  According to the court, the evidence indicated that defendant’s behavior was “extremely reprehensible.”

ABA Journal of top 100 law blogs.  The ABA Journal is compiling the top 100 law blogs.  If you find the California Estate, Trust & Elder/Disability Litigation blog worthwhile please recommend the blog by completing the boxes on the short form at ABA Journal.  Your submissions are due no later than September 9, 2011.  Thank you for your support.

A little off topic, but I came across a very interesting article about a green unitrust for farmers, ranchers, manufacturers, etc. who are involved in farming activities.  Here is the link to the article, Click Here.  Apparently the trust might not result in a significant charitable deduction, but the avoidance of ordinary income tax on sale of the asset could be substantial.  Of course, people who are interested in this type of trust need to evaluate the overall business and economic benefits.

ABA Journal of top 100 law blogs.  The ABA Journal is compiling the top 100 law blogs.  If you find the California Estate, Trust & Elder/Disability Litigation blog worthwhile please recommend the blog by completing the boxes on the short form at ABA Journal.  Your submissions are due no later than September 9, 2011.  Thank you for your support.

The ABA Journal is compiling the top 100 law blogs.  If you find the California Estate, Trust & Elder/Disability Litigation blog worthwhile please recommend the blog by completing the boxes on the short form at ABA Journal.  Your submissions are due no later than September 9, 2011.  Thank you for your support.

In Carter v. Prime Healthcare Paradise Valley, LLC (California Court of Appeal, Fourth Appellate District, August 12, 2011, No. D057852) the Court affirmed the trial court’s dismissal of the complaint without leave to amend following defendants’ demurrer.  The primary issue was whether plaintiffs sufficiently pleaded a claim of physical elder abuse against the nursing home defendants arising from the death of plaintiffs’ father.

This is an important case for plaintiffs and defendants to review in circumstances involving alleged nursing home physical elder abuse.  Essentially, to plead a claim of medical care physical elder abuse in the nursing home context plaintiffs must plead facts evidencing neglect or the withholding or denial of care or treatment.  Neglect includes, but is not limited to, all of the following: (1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter; (2) Failure to provide medical care for physical and mental health needs; (3) Failure to protect from health and safety hazards; or (4) Failure to prevent malnutrition or dehydration.  Plaintiffs must plead specific facts, not general allegations, evidencing oppression, fraud, or malice involving intentional, willful, conscious or reckless wrongdoing of a despicable or injurious nature.  Recklessness involves deliberate disregard of the high degree of probability that an injury will occur and rises to the level of a conscious choice of a course of action with knowledge of the serious danger to others involved in it.

This has been a developing area of law.  The court in Carter briefly references factual background and holdings in preceding cases.  The court held that elder abuse remedies are only available for the egregious withholding of medical care for physical or mental needs—factual allegations that do not rise above a level indicating only ordinary medical care negligence will not suffice.  For example, even at the pleading stage factual allegations indicating the occurrence of a bedsore without more are not sufficient to survive a demurrer on a claim of elder abuse.  The holding in Carter is helpful to defendant nursing homes, and is a difficult case for plaintiffs.