California AB 1663 Slide – Important New Conservatorship Law Changes

I have provided below a slide summarizing the Legislative Counsel’s Digest for new California AB 1663, which makes significant changes to conservatorship law. As you might be aware, over the past several years both the courts and the Legislature have been making significant changes in California conservatorship law in an effort to enact conservatee and prospective conservatee protections. In relevant part, the new law gives the prospective conservatee additional power to name who the conservator will be (if in fact the court grants the conservatorship) and also requires much greater attention to and evaluation of available less restrictive alternatives to conservatorship.

Thank you for viewing and reading. Please pass this along to other people who would be interested as it is through collaboration and sharing that great things and success occur more quickly..

* * * * * * *

Best to you,

David Tate, Esq. (and inactive CPA)

  • Business litigation and disputes – business, breach of contract/commercial, co-owners, shareholders, investors, founders, workplace and employment, environmental, D&O, governance, boards and committees.
  • Trust, estate and probate court litigation and disputes – trust, estate, probate, elder and dependent abuse, conservatorship, POA, real property, mental health and care, mental capacity, undue influence, conflicts of interest, and contentious administrations.
  • Governance, boards, audit and governance committees, investigations, auditing, ESG, etc.
  • Mediator and facilitating dispute resolution:
    • Trust, estate, probate, conservatorship, elder and dependent abuse, etc.
    • Business, breach of contract/commercial, owner, shareholder, investor, etc.
    • D&O, board, audit and governance committee, accountant and CPA related.
    • Other: workplace and employment, environmental, trade secret.

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, or as or for my opinions and views on the subject matter.

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.

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.

David Tate, Esq. short video – tips for approaching dispute resolution, mediation and meetings

I have provided below a link on youtube for my short video discussing tips for approaching dispute resolution, mediation and meetings. I have also written more detailed materials to help you prepare for dispute resolution and mediation.

Thank you for viewing and reading. Please pass this along to other people who would be interested.

* * * * * * *

Best to you,

David Tate, Esq. (and inactive CPA)

  • Business litigation and disputes – business, breach of contract/commercial, co-owners, shareholders, investors, founders, workplace and employment, environmental, D&O, governance, boards and committees.
  • Trust, estate and probate court litigation and disputes – trust, estate, probate, elder and dependent abuse, conservatorship, POA, real property, mental health and care, mental capacity, undue influence, conflicts of interest, and contentious administrations.
  • Governance, boards, audit and governance committees, investigations, auditing, ESG, etc.
  • Mediator and facilitating dispute resolution:
    • Trust, estate, probate, conservatorship, elder and dependent abuse, etc.
    • Business, breach of contract/commercial, owner, shareholder, investor, etc.
    • D&O, board, audit and governance committee, accountant and CPA related.
    • Other: workplace and employment, environmental, trade secret.

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.

Pathway through the CARE Court

Below is a picture of the Pathway through the CARE Court, from the State of California CARE Court website.

Many key word are noted, including but not limited to: voluntarily engage (or not); petition for evidence; appoints legal counsel; voluntary supporter; order a clinical evaluation; orders the development of a CARE plan; CARE plan may include behavioral health treatment, stabilization medication, and a housing plan, etc. Although the Pathway is not called a conservatorship, it is still court-ordered, with a court-appointed attorney representing the individual. You should also note that SB 1338 is a long piece of legislation that goes into many areas including insurance plans and coverage, situations of possible criminal behavior, and situations involving possible LPS or general conservatorships, in addition to the separate CARE Court provisions. CARE stands for: The Community Assistance, Recovery, and Empowerment (CARE) Act. Here is the link for the State of California CARE Court website https://www.chhs.ca.gov/care-act/

More to follow as the State and the first group (cohort) of counties start to put details into exactly how this program will be designed and will operate (the first counties include Glenn, Orange, Riverside, San Diego, Stanislaus, and Tuolumne, and the City and County of San Francisco).

Thank you for reading. Please pass this along to other people who would be interested.

* * * * * * *

Best to you,

David Tate, Esq. (and inactive CPA)

  • Business litigation and disputes – business, breach of contract/commercial, co-owners, shareholders, investors, founders, workplace and employment, environmental, D&O, governance, boards and committees.
  • Trust, estate and probate court litigation and disputes – trust, estate, probate, elder and dependent abuse, conservatorship, POA, real property, mental health and care, mental capacity, undue influence, conflicts of interest, and contentious administrations.
  • Governance, boards, audit and governance committees, investigations, auditing, ESG, etc.
  • Mediator and facilitating dispute resolution:
    • Trust, estate, probate, conservatorship, elder and dependent abuse, etc.
    • Business, breach of contract/commercial, owner, shareholder, investor, trade secret, etc.
    • D&O, board, audit and governance committee, accountant and CPA related.
    • Other: workplace and employment, environmental.

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.

In Memory of Deborah Tate Trotta (Sept. 12, 2021) . . . the Florida lawsuit to get Deb’s ashes home to California, personal property including Tate legacy, Annie, other assets . . .

Today is one year after the body of my dear sister Deb was found at the Nathaniel P. Reed Hobe Sound National Wildlife Refuge, which is only a short distance from her home. Deb was known to go there often for walks at the beach. We (Deb’s relatives, lifelong friends, and I) wanted an obituary to be published for Deb in loving memory and in celebration of her life. A long time had already passed without action. Below I have pasted a copy of the January 2022 obituary that we published in loving memory and celebration of Deb’s life.

In mid-May, 2022, we filed two petitions with the Court, one for administration and one to obtain and bring Deb’s ashes back home to California (the petitions should be public record) – here is the caption for the petition that we filed to get Deb’s ashes home to California:

Many efforts were made to avoid the lawsuit, and efforts have even continued last month. Responses to the petitions were filed with the Court (which also should be public record). The responses are essentially objections and denials. We served written discovery (interrogatories, requests for production of documents, and requests for admissions). The responses to the discovery came back the last week in August (i.e., last month). Again, objections and denials.

The denials include the denial that Deb had wanted her ashes to come home to California to be spread at two locations – (1) Mt. Tam (Tamalpais)/Mill Valley/Sausalito, and (2) at the winery. People who know Deb know this to be true. Since Deb’s death her ashes, and all of her assets including Tate legacy personal property have been controlled, possessed, and kept secret in Florida.

I have handled a lot of trust, estate, and elder abuse cases over the years. Nevertheless, there are some circumstances about Deb’s situation that I had not previously seen. For example, this is the first case that has involved the decedent’s wishes for what will happen to her remains (in this case Deb’s ashes) – I have come to experience and understand what an important issue this is for the decedent, and for her family, and for her really good friends, spiritually and emotionally, and for closure. One might argue that it is one of the most important, or perhaps the most important issue after a loved one passes.

I am now aware that the laws in Florida and California are similar regarding a decedent’s remains. The law in Florida is that the decedent’s wishes are to be honored. The law in California is similar but the path or process that is followed to get there might be a little different. For example, in some situations in California a person who was an attorney in fact under a power of attorney for health care (if there was one) might be involved in decision making; however, if you are knowledgeable about powers of attorney you will also know that the principal’s wishes and instructions are relevant and important, and must be followed in some situation or at least considered in the other situations. Thus, in Deb’s case, under both Florida and California law her ashes should come home to California as she wished – which, of course, has not happened, is being prevented, and I am now convinced will not occur without Court order.

It is important that Deb’s wishes be honored. Perhaps lessons can also be learned from Deb’s situation that might be helpful to other people in similar situations. I can tell you that I now view certain situations differently than I did before. More to follow – in addition to the law, in Deb’s situation there is also a fairly large amount of evidence including texts, phone calls and phone messages, emails, pictures, videos, etc.

Written in loving memory of Deb and in celebration of her life.

Here is a picture of Deb’s obituary:

Thank you for reading. Please pass this along to other people who would be interested.

* * * * * * *

Best to you,

David Tate, Esq. (and inactive CPA)

  • Business litigation and disputes – business, breach of contract/commercial, co-owners, shareholders, investors, founders, workplace and employment, environmental, D&O, governance, boards and committees.
  • Trust, estate and probate court litigation and disputes – trust, estate, probate, elder and dependent abuse, conservatorship, POA, real property, mental health and care, mental capacity, undue influence, conflicts of interest, and contentious administrations.
  • Governance, boards, audit and governance committees, investigations, auditing, ESG, etc.
  • Mediator and facilitating dispute resolution:
    • Trust, estate, probate, conservatorship, elder and dependent abuse, etc.
    • Business, breach of contract/commercial, owner, shareholder, investor, trade secret, etc.
    • D&O, board, audit and governance committee, accountant and CPA related.
    • Other: workplace and employment, environmental.

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.

And so SB 1338 CARE Court has passed (and will be signed by the Governor) . . . and now the work to be done will begin . . .

The California Community Assistance, Recovery, and Empowerment (CARE) Court Program legislation (SB 1338) has passed the Legislature, and it certainly will be signed by Governor Newsom as the act has his support. Here is a link to the Governor’s statement on the passage of CARE Court https://www.gov.ca.gov/2022/08/31/governor-newsom-statement-on-the-legislatures-passage-of-care-court/.

I wrote a blog about the SB 1338 in May although I seldom write about legislation before it is enacted. But the CARE Court is a significant piece of legislation and I knew that it had strong support, and some opposition. Indeed, the details in the legislation have changed, and have increased significantly since May (printing SB 1338 from the legislative website is 25 pages, whereas in PDF form SB 1338 is 52 pages).

The CARE Court does not start immediately; however, as the CARE Court has to be put in place, further designed and implemented at the county level, a significant (perhaps tremendous) amount of work has to be done. Although SB 1338 is lengthy, it does not represent or arise to the level of being the plan and court rules for final implementation. As stated in SB 1338: “A first cohort of counties, which shall include the Counties of Glenn, Orange, Riverside, San Diego, Stanislaus, and Tuolumne, and the City and County of San Francisco, shall begin no later then October 1, 2023, unless the county is provided additional time pursuant to paragraph (2) of subdivision (c).” To the extent that I am able to relatively easily follow progress that is being made, I will do so, and I will be commenting about this legislation and developments in future blog posts.

This legislation pertains to difficult issues, and to people with difficult health, mental and physical conditions and situations, and it also pertains to personal and constitutional rights. California already has in place conservatorship processes (both LPS and general conservatorships), and there also are already rights, duties and responsibilities relating to principal/agent, power of attorney, trustee/beneficiary, executor/beneficiary, doctor/patient and healthcare provider, and other similar relationships. To the extent that a CARE Court issues an order or directive, unless it is very truly voluntarily entered into, most likely it will be or at least could be considered to be an order or directive, or some sort of limitation on personal rights by the government.

More to follow after the Governor signs this legislation and the work begins.

Thank you for reading. Please pass this along to other people who would be interested.

* * * * * * *

Best to you,

David Tate, Esq. (and inactive CPA)

  • Business litigation and disputes – business, breach of contract/commercial, co-owners, shareholders, investors, founders, workplace and employment, environmental, D&O, governance, boards and committees.
  • Trust, estate and probate court litigation and disputes – trust, estate, probate, elder and dependent abuse, conservatorship, POA, real property, mental health and care, mental capacity, undue influence, conflicts of interest, and contentious administrations.
  • Governance, boards, audit and governance committees, investigations, auditing, ESG, etc.
  • Mediator and facilitating dispute resolution:
    • Trust, estate, probate, conservatorship, elder and dependent abuse, etc.
    • Business, breach of contract/commercial, owner, shareholder, investor, trade secret, etc.
    • D&O, board, audit and governance committee, accountant and CPA related.
    • Other: workplace and employment, environmental.

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.

New California trust case: Meiri v. Shamtoubi – trust beneficiary triggered the no contest clause and lost her inheritance when she filed her contest petition more than 120 days after the section 16061.7 notice

In Meiri v. Shamtoubi the beneficiary was treated as having predeceased the trustor (i.e., lost her inheritance) where the beneficiary triggered the no contest clause by filing a petition that was a direct contest of the trust, and it was held that her contest was brought without probable cause because she filed her contest more than 120 days after the section 16061.7 notice. Meiri v. Shamtoubi, California Court of Appeal, Second Appellate District, July 25, 2022, Case No. B310619.

The holding in Meiri probably appears straightforward or perhaps even obvious, but that isn’t necessarily correct.

The contest petition alleged undue influence and fraud both of which constitute direct contests of the trust pursuant to Cal. Probate Code section 21310. Appellant made various arguments that the allegations in the petition were not a direct contest of the trust. The Court held that whether or not a petition constitutes a direct contest is determined by the allegations that are asserted and not by what the petition is called or when the petition is filed.  

The decision also contains a discussion about how “probable cause” or “without probable cause” are to be evaluated and determined under Cal. Probate Code section 21311. The Court held that filing the contest petition more than 120 days after services of the section 16061.7 notice (in violation of the statutory 120-day filing deadline) constituted filing the contest petition without probable cause because the contest petition was filed after the statutory deadline.

Contestant argued that whether or not there was probable cause must be determined by the substance of the matter rather than procedural impediments, and that the statute specifically references the opportunity for further investigation and discovery. The Court held that any legally sufficient bar to relief – whether procedural (e.g., a statute of limitations defect) or substantive – is sufficient to satisfy the section 21311(b) “without probable cause” criteria.

I do have some concern or caution that the Court’s apparently straightforward view or approach under the facts in Meiri might be different under different facts. For example, a few years ago I had a case in which the contest of the trust also was filed more than 120 days after service of the section 16061.7 notice but we successfully argued that the 16061.7 notice was invalid because the trustee failed to disclose all of the terms of trust – in our case the trustee did provide a copy of the trust, there were also other terms of the trust that the trustee did not provide which needed to be provided so that the beneficiary had sufficient information to determine whether or not to contest the trust.   

Thanks for reading. Please pass this along to other people who would be interested.

* * * * * * *

Best to you,

David Tate, Esq. (and inactive CPA)

  • Business litigation and disputes – business, breach of contract/commercial, co-owners, shareholders, investors, founders, workplace and employment, environmental, D&O, governance, boards and committees.
  • Trust, estate and probate court litigation and disputes – trust, estate, probate, elder and dependent abuse, conservatorship, POA, real property, mental health and care, mental capacity, undue influence, conflicts of interest, and contentious administrations.
  • Governance, boards, audit and governance committees, investigations, auditing, ESG, etc.
  • Mediator and facilitating dispute resolution:
    • Trust, estate, probate, conservatorship, elder and dependent abuse, etc.
    • Business, breach of contract/commercial, owner, shareholder, investor, trade secret, etc.
    • D&O, board, audit and governance committee, accountant and CPA related.
    • Other: workplace and employment, environmental.

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.

Happy and peaceful heavenly birthday Deb (Tate) Trotta – I wish you were free from control, but unfortunately not yet as your ashes, personal property, etc., are all still controlled against your wishes (in Martin County, Florida)

Deb, I am writing and wanted to say this to you in my loving memory of you and in celebration of your heavenly birthday as you cannot be present in physical body. Your life was ended too short and before your time. The battle goes on: Estate of Deborah Ann Tate Trotta, Circuit Court in and for Martin County, Florida, Case No. 21001209CPAXMX.

As I have learned in many of my cases, the passing of time, and discovery, often confirm the ultimate truth. And I wanted to say to you that that is also true in your situation following your death (whatever the contributing causation in fact actually was or were).

I say this in hindsight (although basically I don’t believe in hindsight, and you also never would have asked anyway), but I do wish that I knew and that I sent to you whatever amount of money would have made you comfortable with simply leaving your situation and the relationship in which you lacked access to and control over your financial assets after 20+ years of marriage.

But the passing of time does often show the truth. A misleading and incomplete narrative was being driven, and I believe also gaslighting, prior to and after your body being found on September 12, 2021. By the way, I was also told (soon after your body was found) that you died on September 11 and that the Medical Examiner was incorrect with September 12, but then I was denied access to your phone and your supposed September 11, text, etc.

Depending on the facts of the case in some circumstances there truly are legitimate legal reasons for arguing about a decedent’s wishes (i.e., when there really is a dispute, and if assets, property and information are not being kept secret, and are being safeguarded). However, and I am sorry, Deb, that your situation and bad relationship were worse than I understood them to be as there is no legal or human justification for the now continuing control and possession over you (i.e., including over your ashes and personal property), or for denying your wishes which were stated and which are confirmed, and are obvious under the circumstances of your bad relationship.

There is simply no redeemable quality for someone who you were divorcing to possess and control you and your ashes and personal property including Tate ancestry and legacy items, and to not allow your ashes to be spread in California or for your personal property to go to the Tate family. You and I could start discussing personality traits and behaviors, but not here or today.

I wish that you had felt able to leave earlier in the relationship. I can only guess at how really, really bad your argument with husband was on September 11 (per the Sheriff’s Report and other testimony).

Deb, in loving memory I wish you a happy and peaceful heavenly birthday, and also provide my prayers for you and for all of the others who are with you. Love Dave

* * * * *

Deb’s obituary and her beloved Annie:

Thanks for reading. Please pass this along to other people who would be interested.

* * * * * * *

Best to you,

David Tate, Esq. (and inactive CPA)

  • Business litigation and disputes – business, breach of contract/commercial, co-owners, shareholders, investors, founders, workplace and employment, environmental, D&O, governance, boards and committees.
  • Trust, estate and probate court litigation and disputes – trust, estate, probate, elder and dependent abuse, conservatorship, POA, real property, mental health and care, mental capacity, undue influence, conflicts of interest, and contentious administrations.
  • Governance, boards, audit and governance committees, investigations, auditing, ESG, etc.
  • Mediator and facilitating dispute resolution:
    • Trust, estate, probate, conservatorship, elder and dependent abuse, etc.
    • Business, breach of contract/commercial, owner, shareholder, investor, trade secret, etc.
    • D&O, board, audit and governance committee, accountant and CPA related.
    • Other: workplace and employment, environmental.

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.

New California Case: Bruno v. Hopkins – the Probate Court can charge a petitioning party for the trustee’s attorneys’ fees and costs when the petition to remove the trustee is brought in bad faith

Bruno v. Hopkins is a long, 32-page decision (California Court of Appeal, Sixth Appellate District, June 13, 2022, H044960). The primary holding is that when a party in bad faith petitions to remove a trustee (and thus loses on that petition), pursuant to Cal. Probate Code section 15642(d), the court can charge the losing petitioning party with the attorneys’ fees and costs incurred by the trustee, and those attorneys’ fees and costs can be recovered against the petitioning party personally and not limited to the petitioning party’s share in the trust.

In relevant part, Cal. Probate Code section 15642(d) provides as follows:

Probate Code section 15642:  

(a) A trustee may be removed in accordance with the trust instrument, by the court on its own motion, or on petition of a settlor, cotrustee, or beneficiary under Section 17200.

(b) The grounds for removal of a trustee by the court include the following:

* * * *

(c) If, pursuant to paragraph (6) of subdivision (b), the court finds that the designation of the trustee was not consistent with the intent of the settlor or was the product of fraud or undue influence, the person being removed as trustee shall bear all costs of the proceeding, including reasonable attorney’s fees.

(d) If the court finds that the petition for removal of the trustee was filed in bad faith and that removal would be contrary to the settlor’s intent, the court may order that the person or persons seeking the removal of the trustee bear all or any part of the costs of the proceeding, including reasonable attorney’s fees.

Bruno also discusses what is “bad faith,” apparently holding that bad faith in the context of section 15642(d) involves a subjective determination of the contesting or petitioning party’s state of mind, and whether she or he acted with an improper purpose or for an improper motive. The case also contains a discussion of the facts pursuant to which it was found that the petition to remove the trustee was brought in bad faith, and that discussion in part also pertained to the credibility of witnesses and the reliability of the contesting or petitioning party’s expert witnesses. Finally, Bruno also discusses cases in which a petitioning beneficiary’s share of the trust was charged with the trustee’s attorneys’ fees and cost under the equitable powers of the court to protect a trust or an estate. Although that theory for recovery of the trustee’s attorneys’ fees and costs did not apply in Bruno because in Bruno the contesting or petitioning party did not have a beneficiary share in the trust, Bruno does in part discuss equitable powers of a probate court and appears to affirm at least some of those powers in dicta, citing, for example, Rudnick v. Rudnick and Pizarro v. Reynoso.

Thanks for reading. Please pass this along to other people who would be interested.

* * * * * * *

Best to you,

David Tate, Esq. (and inactive CPA)

  • Business litigation and disputes – business, breach of contract/commercial, co-owners, shareholders, investors, founders, workplace and employment, environmental, D&O, governance, boards and committees.
  • Trust, estate and probate court litigation and disputes – trust, estate, probate, elder and dependent abuse, conservatorship, POA, real property, mental health and care, mental capacity, undue influence, conflicts of interest, and contentious administrations.
  • Governance, boards, audit and governance committees, investigations, auditing, ESG, etc.
  • Mediator and facilitating dispute resolution:
    • Trust, estate, probate, conservatorship, elder and dependent abuse, etc.
    • Business, breach of contract/commercial, owner, shareholder, investor, trade secret, etc.
    • D&O, board, audit and governance committee, accountant and CPA related.
    • Other: workplace and employment, environmental.

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.

FinCEN Elder Financial Exploitation Advisory – June 15, 2022 – what it really means is that people need estate planning attorneys and diligent financial institutions, and to have and designate trusted people and contacts

I have provided below a scan of the FinCEN June 15, 2022 Advisory on Elder Financial Exploitation. What struck me from the advisory is that there really isn’t anything new – the numbers of reported incidents of elder financial abuse and exploitation are huge, and those are just the cases that were reported to FinCEN.

Here is the paragraph about the numbers of filed Suspicious Activity Reports (SARs) related to EFE (elder financial exploitation), which I presume also doesn’t include victims or potential victims who would be classified as dependent adults (i.e., people under the age 65, and thus, not elders):

“In 2021, financial institutions filed 72,000 Suspicious Activity Reports (SARs) related to EFE. As referenced in the advisory, this represents an increase of 10,000 SARs over the previous year’s filings. The Consumer Financial Protection Bureau (CFPB)’s estimate of the dollar value of suspicious transactions linked to EFE has similarly increased—from $2.6 billion in 2019 to $3.4 billion in 2020. This is the largest year-to-year increase since 2013.”

I have provided below the scan of the entire advisory. However, as I have long said, there is no way that governmental or other authorities can address or even evaluate and prosecute the numbers of incidents that are reported, including financial, physical, and mental abuse and exploitation of elders and dependent people. And some estimates are that the incidents that go unreported are 5-10 times the numbers that are reported. People need estate planning attorneys to help them name or appoint and designate trusted people and contacts who will help them and take action if the need arises. And people need diligent financial and investment institutions that will take appropriate protective actions, and who will also contact the trusted people and contacts.

Thanks for reading. Please pass this along to other people who would be interested.

* * * * * * *

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.

Conservatorship Issues And Compliance Can Create Choices or Decisions, Uncertainties, Disputes, And Opportunities For Resolution (California)

In a conservatorship there are a lot of moving parts, issues and relationships before the petition is filed, during the adjudication of the petition, and at all later times during the administration and review.

The following are some of the typical potential moving parts, issues and relationships that you will or may find in a California conservatorship.

  • Are there options that are less restrictive than a conservatorship?
  • Is it a conservatorship of the estate?
  • Is it a conservatorship of the person?
  • Does the proposed conservatee have or need an attorney?
  • Will it be a court trial or a jury trial?
  • Is there an issue about who the conservator will be?
  • Are there placement or housing issues?
  • Are there medical care and treatment, or related capacity issues?
  • Are there medication issues?
  • Are there daily living needs issues?
  • Are there caregiver issues?
  • Are there other issues pertaining to the proposed conservatee or the proposed conservatee’s abilities and capacity?
  • Are there conservator special power issues?
  • Who are all of the people who are involved in the dispute and the various issues?
  • Are there relationship issues between the people who are involved?
  • Are there spouse or domestic partner, or girlfriend or boyfriend issues?
  • Are there visitation issues?
  • Are there elder or dependent adult abuse issues – financial, physical, undue influence, emotional, abandonment, etc.?
  • Are there expert witnesses and expert witness issues?
  • Are there liquidity or sufficiency of assets issues?
  • Are there estate planning or benefits needs?
  • Are there voting issues?
  • Are there married or marrying issues?
  • What facts and circumstances and issues are fluid, i.e., changing (undoubtedly some are)?
  • What options are available for each of the issues that are still in dispute?
  • What burden of proof standards apply?
  • Are there possible restraining order issues – see my 2022 blog posts (click link below) discussing California Assembly Bill No. 1243 (in part expanding the definition of an “interested party” who has legal standing to petition the court for a restraining order to enjoin (i.e., to stop and prevent) elder and dependent adult isolation abuse, and recent case White v. Wear at https://wordpress.com/post/californiaestatetrust.com/2464.

Also consider whether aspects of California Assembly Bill No. 1194, Conservatorship, might apply. Assembly Bill No. 1194 is long, has many sections, and amends many sections of the Probate Code or makes new sections. Some of the provisions do not necessarily become mandatory immediately – typical wording that is included in many of the new provisions states something similar to: “A superior court shall not be required to perform any duties imposed pursuant to this section until the legislature makes an appropriation identified for this purpose.” Nevertheless, as to a certain extent the Probate Court in each Superior Court sometimes can operate as it wishes, although not “required” to perform the specified duties, a Probate Court still might decide to do so prior to an appropriation being made by the legislature. If a Probate Court decides to perform the new duties earlier than required to do so, the Probate Court should be sure to make that decision known to practicing attorneys, the public, and others.

Some of the new provisions in Assembly Bill No. 1194 apply to conservatorships in general, whereas other provisions specifically apply only to limited conservatorships, or temporary conservatorships, or other specific situations.    

You can find other conservatorship related posts throughout this blog. Conservatorships are a developing area of law. The new provisions in Assembly Bill No. 1194 strengthen conservatee and prospective conservatee rights, which is appropriate given that a conservatorship is a state action that limits the conservatee’s constitution rights of freedom and personal choice. It is also true that, in the real world, recognizing and specifying the additional rights most likely will create or cause new processes and procedures which might well cause fewer conservatorships to be granted, more conservatorships might be terminated, conservatorships that are ordered might involve fewer limitations or restrictions on conservatees, and additional court time and attention might be required in conservatorship cases. The result might also be that if there are fewer conservatorships, people who would have been but who are not being conserved might need additional help or assistance from an attorney in fact under a power of attorney, or from a trustee, or from a spouse or domestic partner, family and friends.

The following are two significant sections in Assembly Bill No. 1194 which are effective immediately. The first section amends Probate Code section 1471. The second section amends Probate Code section 1863.

The amendment to Probate Code section 1471 specifies that a conservatee or a prospective conservatee, or a person alleged to lack legal capacity is entitled to be represented by an attorney, whether the attorney is the public defender or private counsel, and that the conservatee or prospective conservatee also in most situations is entitled to be represented by an attorney of her or his choice (or, perhaps, by the choice of her or his attorney in fact?). Amended section 1471 also appears to require the court to appoint legal counsel for the conservatee, prospective conservatee or person alleged to lack legal capacity even when legal counsel wasn’t requested – see section 1471(b).

The amendment to Probate Code section 1863 is perhaps even more significant. Amended sections 1863(c) and (d) provide that when a court is determining whether the granting of a conservatorship is appropriate, and when reviewing the appropriateness of a conservatorship continuing or not (which is required at least annually and sometimes can be required more often), unless the court determines by clear and convincing evidence that the conservatee meets the criteria for the appointment of a conservator or still meets that criteria (i.e., that the order for a conservatorship is appropriate), and that the conservatorship and the powers that have been granted to the conservator are the least restrictive means of providing help and assistance to the conservatee or prospective conservatee, the court shall terminate the conservatorship or modify the terms to be the least restrictive.

As the clear and convincing standard is a higher standard of proof than for example the preponderance of the evidence, the result might be fewer conservatorships being granted, or less restrictive conservatorship terms, or more conservatorships being terminated. As in many circumstances a conservatee or prospective conservatee also is entitled to have a trial on the matter (i.e., with witness testimony instead of the judge simply making a decision from the bench), and also might be entitled to have a trial by jury instead of simply by the judge, there is the prospect that more conservatorship cases will result in trials, and in jury trials (see also section 1471(e) in reference to the attorney being a “zealous, independent advocate representing the wishes of their client”).   

See also my November 10, 2021, post in which I copied and pasted the new amended Probate Code sections 1471 and 1863 https://wordpress.com/post/californiaestatetrust.com/2367

If you are interested in conservatorship topics, for additional posts search by using the word “conservatorship” on the home page of this blog.

Thanks for reading.

* * * * * * *

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.