I have been spending a little time at Laguna Honda skilled nursing and rehabilitation facility in San Francisco. Many, perhaps the majority, of the residents get around using wheelchairs.  Laguna Honda is a huge place with multi-wings, multi-floors, and long hallways.  Here is a link to their website, and a picture which gives you a partial but incomplete idea of the size of the place, Click Here.  Although some of the residents have motorized wheelchairs, many do not although having one would be a tremendous mobility benefit.  In light of all of the ongoing California and federal deficit and budget talks, even if a resident of Laguna Honda could effectively advocate on behalf of himself or herself through the maze of public benefit rules and regulations, undoubtedly providing people with motorized wheelchairs is not a priority.  But this certainly would be a good opportunity where nonprofits and corporations could provide helpful assistance.

Alzheimer’s harder to detect in the elderly, article link Click Here

Will and trust undue influence cases are most often established through indirect evidence.  The following are some of the important California Evidence Code sections that pertain to the admissibility of evidence in undue influence cases . . .

GENERALLY

412.  If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust.

413.  In determining what inferences to draw from the evidence or facts in the case against a party, the trier of fact may consider, among other things, the party’s failure to explain or to deny by his testimony such evidence or facts in the case against him, or his willful suppression of evidence relating thereto, if such be the case.

780.  Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following:

(a) His demeanor while testifying and the manner in which he testifies.

(b) The character of his testimony.

(c) The extent of his capacity to perceive, to recollect, or to communicate any matter about which he testifies.

(d) The extent of his opportunity to perceive any matter about which he testifies.

(e) His character for honesty or veracity or their opposites.

(f) The existence or nonexistence of a bias, interest, or other motive.

(g) A statement previously made by him that is consistent with his testimony at the hearing.

(h) A statement made by him that is inconsistent with any part of his testimony at the hearing.

(i) The existence or nonexistence of any fact testified to by him.

(j) His attitude toward the action in which he testifies or toward the giving of testimony.

(k) His admission of untruthfulness.

1100.  Except as otherwise provided by statute, any otherwise admissible evidence (including evidence in the form of an opinion, evidence of reputation, and evidence of specific instances of such person’s conduct) is admissible to prove a person’s character or a trait of his character.

1101.  (a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.

(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.

(c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.

1104.  Except as provided in Sections 1102 and 1103, evidence of a trait of a person’s character with respect to care or skill is inadmissible to prove the quality of his conduct on a specified occasion.

1105.  Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom.

EXCEPTIONS TO THE HEARSAY RULE

Confessions and Admissions

1220.  Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity.

1221.  Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.

1222.  Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if:

(a) The statement was made by a person authorized by the party to make a statement or statements for him concerning the subject matter of the statement; and

(b) The evidence is offered either after admission of evidence sufficient to sustain a finding of such authority or, in the court’s discretion as to the order of proof, subject to the admission of such evidence.

1223.  Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if:

(a) The statement was made by the declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of that conspiracy;

(b) The statement was made prior to or during the time that the party was participating in that conspiracy; and

(c) The evidence is offered either after admission of evidence sufficient to sustain a finding of the facts specified in subdivisions (a) and (b) or, in the court’s discretion as to the order of proof, subject to the admission of such evidence.

1224.  When the liability obligation, or duty of a party to a civil action is based in whole or in part upon the liability, obligation, or duty of the declarant, or when the claim or right asserted by a party to a civil action is barred or diminished by a breach of duty by the declarant, evidence of a statement made by the declarant is as admissible against the party as it would be if offered against the declarant in an action involving that liability, obligation, duty, or breach of duty.

1225.  When a right, title, or interest in any property or claim asserted by a party to a civil action requires a determination that a right, title, or interest exists or existed in the declarant, evidence of a statement made by the declarant during the time the party now claims the declarant was the holder of the right, title, or interest is as admissible against the party as it would be if offered against the declarant in an action involving that right, title, or interest.

1227.  Evidence of a statement by the deceased is not made inadmissible by the hearsay rule if offered against the plaintiff in an action for wrongful death brought under Section 377 of the Code of Civil Procedure.

Declarations Against Interest

1230.  Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant’s pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.

Statements Relating to Wills and to Claims Against Estates

1260.  (a) Except as provided in subdivision (b), evidence of any of the following statements made by a declarant who is unavailable as a witness is not made inadmissible by the hearsay rule:

(1) That the declarant has or has not made a will or established or amended a revocable trust.

(2) That the declarant has or has not revoked his or her will, revocable trust, or an amendment to a revocable trust.

(3) That identifies the declarant’s will, revocable trust, or an amendment to a revocable trust.

(b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances that indicate its lack of trustworthiness.

1261.  (a) Evidence of a statement is not made inadmissible by the hearsay rule when offered in an action upon a claim or demand against the estate of the declarant if the statement was made upon the personal knowledge of the declarant at a time when the matter had been recently perceived by him and while his recollection was clear.

(b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances such as to indicate its lack of trustworthiness.

Links to interesting resource discussions about susceptibility to estate planning undue influence . . .

From Martin Blinder, M.D., Click Here

From Mary Joy Quinn, Click Here

From Duke Journal of Comparative & International Law, Click Here

From American Bar, Click Here

Know anyone with these personality traits – antisocial personality disorder and the perpetrator of elder abuse . . .

The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, DSM IV-TR, generally defines antisocial personality disorder in a person who is 18 years old or older as:

A pervasive pattern of disregard for and violation of the rights of others, as indicated by three or more of the following:

1. Failure to conform to social norms with respect to lawful behaviors as indicated by repeatedly performing acts that are grounds for arrest.

2. Deception, as indicated by repeatedly lying, use of aliases, or conning others for personal profit or pleasure.

3. Impulsiveness or failure to plan ahead.

4. Irritability and aggressiveness, as indicated by repeated physical fights or assaults.

5. Reckless disregard for safety of self or others.

6. Consistent irresponsibility, as indicated by repeated failure to sustain consistent work behavior or honor financial obligations.

7. Lack of remorse, as indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another.

The World Health Organization’s ICD-10 generally defines Dissocial Personality Disorder similar to antisocial personality disorder which is characterized by at least three of the following:

1. Callous unconcern for the feelings of others and lack of the capacity for empathy.

2. Gross and persistent attitude of irresponsibility and disregard for social norms, rules, and obligations.

3. Incapacity to maintain enduring relationships.

4. Very low tolerance to frustration and a low threshold for discharge of aggression, including violence.

5. Incapacity to experience guilt and to profit from experience, particularly punishment.

6. Markedly prone to blame others or to offer plausible rationalizations for the behavior bringing the subject into conflict.

7. Persistent irritability.

Link to a Forbes article, The $4M Ripoff: Is Anyone Paying Attention, re a California caregiver financial abuse case, Click Here.

The following is the text of California Code of Regulations Title 22, Section 72315, relating to required nursing home resident care nursing services.  These are minimum general requirements, more specific requirements exist in other California regulations.  There are also federal requirements.  Care must also be provided for the special or particular needs of each resident.

(a) No patient shall be admitted or accepted for care by a skilled nursing facility except on the order of a physician.

(b) Each patient shall be treated as individual with dignity and respect and shall not be subjected to verbal or physical abuse of any kind.

(c) Each patient, upon admission, shall be given orientation to the skilled nursing facility and the facility’s services and staff.

(d) Each patient shall be provided care which shows evidence of good personal hygiene, including care of the skin, shampooing and grooming of hair, oral hygiene, shaving or beard trimming, cleaning and cutting of fingernails and toenails. The patient shall be free of offensive odors.

(e) Each patient shall be encouraged and/or assisted to achieve and maintain the highest level of self-care and independence. Every effort shall be made to keep patients active, and out of bed for reasonable periods of time, except when contraindicated by orders of a licensed health care practitioner acting within the scope of his or her professional licensure.

(f) Each patient shall be given care to prevent formation and progression of decubiti, contractures and deformities. Such care shall include:

(1) Changing position of bedfast and chairfast patients with preventive skin care in accordance with the needs of the patient.

(2) Encouraging, assisting and training in self-care and activities of daily living.

(3) Maintaining proper body alignment and joint movement to prevent contractures and deformities.

(4) Using pressure-reducing devices where indicated.

(5) Providing care to maintain clean, dry skin free from feces and urine.

(6) Changing of linens and other items in contact with the patient, as necessary, to maintain a clean, dry skin free from feces and urine.

(7) Carrying out of physician’s orders for treatment of decubitus ulcers. The facility shall notify the physician, when a decubitus ulcer first occurs, as well as when treatment is not effective, and shall document such notification as required in Section 72311(b).

(g) Each patient requiring help in eating shall be provided with assistance when served, and shall be provided with training or adaptive equipment in accordance with identified needs, based upon patient assessment, to encourage independence in eating.

(h) Each patient shall be provided with good nutrition and with necessary fluids for hydration.

(i) Measures shall be implemented to prevent and reduce incontinence for each patient and shall include:

(1) Written assessment by a licensed nurse to determine the patient’s ability to participate in a bowel and/or bladder management program. This is to be initiated within two weeks after admission of an incontinent patient.

(2) An individualized plan, in addition to the patient care plan, for each patient in a bowel and/or bladder management program.

(3) A weekly written evaluation in the progress notes by a licensed nurse of the patient’s performance in the bowel and/or bladder management program.

(j) Fluid intake and output shall be recorded for each patient as follows:

(1) If ordered by the physician.

(2) For each patient with an indwelling catheter:

(A) Intake and output records shall be evaluated at least weekly and each evaluation shall be included in the licensed nurses’ progress notes.

(B) After 30 days the patient shall be reevaluated by the licensed nurse to determine further need for the recording of intake and output.

(k) The weight and length of each patient shall be taken and recorded in the patient’s health record upon admission, and the weight shall be taken and recorded once a month thereafter.

(l) Each patient shall be provided visual privacy during treatments and personal care.

(m) Patient call signals shall be answered promptly.

Financial abuse continues to be on the rise.  The following is California’s Civil Jury Instruction 3100 for the essential factual elements that are necessary to establish financial abuse.  I have cleaned up the jury instruction somewhat so that it is easier to read for this post.

You will notice that the jury instruction is fairly broad and generally worded so that it can apply in a variety of cases.  In every case, consider the facts that you and the other side will need to prove or disprove to establish the case and/or defenses, and the evidence that exists, the evidence that you believe exists but that you don’t have and that you expect or hope to obtain, and the evidence that you don’t believe exists or that you don’t believe you will be able to obtain.

Note.  The designation defendant/perpetrator as indicated below can be an individual or in appropriate circumstances the employer of the defendant/perpetrator, and the plaintiff/victim can be an individual or in appropriate circumstances a decedent victim or the representative of the victim.

The jury instruction:

[Plaintiff/victim] claims that [defendant/perpetrator] violated the Elder Abuse and Dependent Adult Civil Protection Act by taking financial advantage of [him/her].  To establish this claim, [plaintiff/victim] must prove that all of the following are more likely to be true than not true:

1. That [defendant/perpetrator] took/hid/appropriated/obtained or retained [plaintiff/victim]’s property or assisted in taking/hiding/appropriating/obtaining or retaining [plaintiff/victim]’s property;

2. That [plaintiff/victim] was 65 years of age or older or a dependent adult at the time of the conduct;

3. That [defendant/perpetrator] took/hid/appropriated/obtained or retained/assisted in taking/hiding/appropriating/obtaining or retaining the property for a wrongful use or with the intent to defraud or by undue influence;

4. That [plaintiff/victim] was harmed; and

5. That [defendant/perpetrator]’s conduct was a substantial factor in causing [plaintiff/victim]’s harm.

One way [plaintiff/victim] can prove that [defendant/perpetrator] took/hid/appropriated/obtained or retained the property for a wrongful use is by proving that [defendant/perpetrator] knew or should have known that [his/her] conduct was likely to be harmful to [plaintiff/victim].

[Defendant/perpetrator] took/hid/appropriated/obtained or retained the property if [plaintiff/victim] was deprived of the property by an agreement, gift, will, or trust or [specify other testamentary instrument] regardless of whether the property was held by [plaintiff/victim] or by [his/her] representative.

An Adult Day Health Care bill was vetoed by California Governor Brown.  The following is a link to an article in the San Francisco Chronicle, Click Here.  Currently funding for the care centers will expire on December 1.  There are approximately 300 existing centers that offer 37,000 adults  medical care, physical therapy, exercise, counseling, socialization and other  support.

California Probate Code section 16061 provides:

“16061.  Except as provided in Section 16069, on reasonable request
by a beneficiary, the trustee shall report to the beneficiary by
providing requested information to the beneficiary relating to the
administration of the trust relevant to the beneficiary’s interest.”

The section 16061 entitlement is different from and in addition to a beneficiary’s right to an accounting.  Only a few cases interpret the scope and intent of section 16061; however, clearly the section is broadly worded, requiring that the trustee provide the beneficiary with information “relating to the administration of the trust relevant to the beneficiary’s interest.”  Although the section 16061 entitlement should not be permitted to allow a beneficiary to pester a trustee or to micromanage the trust, it is reasonable that a beneficiary would be concerned about significant events that affect his or her trust interests on an ongoing basis, and would want certain information about those interests regularly and more often than would be provided by an accounting.  The issue becomes, what is a reasonable request–how often, what information, and how significant would the requested information be to the reasonable beneficiary?  And, from the trustee’s perspective, generally I lean toward providing a beneficiary with additional information to better avoid disputes, or to at least flush them out earlier with the hope that they can be avoided entirely, or resolved earlier.  Events and actions or proposed actions will eventually come to light anyway.

Which raises another topic area.  A trustee is permitted to provide the beneficiary with a statutory notice of intent to take a particular action, thus triggering the beneficiary’s obligation to object to the proposed action, or waive the right to object after the expiration of the statutory notice period.  As section 16061 entitles a beneficiary to request the trustee to provide the beneficiary with information “relating to the administration of the trust relevant to the beneficiary’s interest,” a beneficiary might request the trustee to provide information about proposed significant events or actions before they occur.  For example, proposed encumbrances and loans, property sales, significant expenditures, transfers and distributions, out-of-ordinary events and transactions, etc., as defined “significant.”

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