Dr. Kerry Burnight on Live Long and Master Aging – Loneliness, Aging, Technology and GrandPad

Below I have provided a link to a podcast with Dr. Kerry Burnight on Live Long and Master Aging, in which Dr. Burnight, a gerontologist, discusses many aspects of aging, including, for example, the value of older people, and how technology can help with aging loneliness. Dr. Burnight also discusses a product that she is involved with, the GrandPad and how they worked to make the product specifically useful for older users. The podcast is somewhat long; however, you will find that there are useful comments and information throughout. Here is the link to the podcast http://www.llamapodcast.com/kerry-burnight/

As I was listening to the podcast I started thinking about the usefulness of the GrandPad in terms of risk management or enterprise risk management (ERM), and legal duties, responsibilities and rights, in the context of nursing homes for example. Is a product like the GrandPad something that nursing homes should (or must?) provide or make available to their residents, to make it easier for a resident to safely stay in touch with family and friends, for socialization, for mental stimulation and to help prevent decline in mental capabilities, and for personal daily living enjoyment?  

Best to you, David Tate, Esq.

And here is a snapshot of the Live Long and Master Aging website page:

Snapshot of Kerry Burnight on Long Live and Master Aging

David Tate, Esq. (and inactive California CPA), Royse Law Firm, Menlo Park, California office, with offices in northern and southern California.  My blogs: trust, estate, elder abuse and conservatorship litigation http://californiaestatetrust.com, D&O, boards, audit committees, governance, etc. http://auditcommitteeupdate.com, workplace http://workplacelawreport.com

OVERVIEW OF A RISK MANAGEMENT PROCESS THAT YOU CAN USE 03162018

Audit Committee 5 Lines of Success, Diligence, and Defense - David Tate, Esq, 05052018

COSO Enterprise Risk Management Framework ERM Components and Principles

David Tate, Esq., Overview of My Practice Areas (Royse Law Firm, Menlo Park, California office, with offices in northern and southern California. http://rroyselaw.com)

  • Civil Litigation: business, commercial, real estate, D&O, board and committee, founder, owner, investor, creditor, shareholder, M&A, and other disputes and litigation
  • Probate Court Litigation: trust, estate, elder abuse, and conservatorship disputes and litigation
  • Administration: trust and estate administration and contentious administrations representing fiduciaries and beneficiaries
  • Workplace (including discrimination) litigation and consulting
  • Board, director, committee and audit committee, and executive officer responsibilities and rights

Royse Law Firm – Overview of Firm Practice Areas – San Francisco Bay Area and Los Angeles Basin

  • Corporate and Securities, Financing and Formation
  • Corporate Governance, D&O, Boards and Committees, Audit Committees, Etc.
  • Intellectual Property – Patents, Trademarks, Copyrights, Trade Secrets
  • International
  • Immigration
  • Mergers & Acquisitions
  • Labor and Employment
  • Litigation (I broke out the litigation as this is my primary area of practice)
  •             Business & Commercial
  •             IP – Patent, Trademark, Copyright, Trade Secret, NDA
  •             Accountings, Fraud, Lost Income/Royalties, Etc.
  •             Internet Privacy, Hacking, Speech, Etc.
  •             Labor and Employment
  •             Mergers & Acquisitions
  •             Real Estate
  •             Owner, Founder, Investor, D&O, Board/Committee, Shareholder
  •             Lender/Debtor
  •             Investigations
  •             Trust, Estate, Conservatorship, Elder Abuse, and Administrations
  • Real Estate
  • Tax (US and International) and Tax Litigation
  • Technology Companies and Transactions, Including AgTech and HealthTech, Etc.
  • Wealth and Estate Planning, Trust and Estate Administration, and Disputes and Litigation

Disclaimer. This post is not a solicitation for legal or other services inside or outside of California, and also does not provide legal or other professional advice to you or to anyone else, or about a specific situation – remember that laws are always changing – and also remember and be aware that you need to consult with an appropriate lawyer or other professional about your situation. This post also is not intended to and does not apply to any particular situation or person, nor does it provide and is not intended to provide any opinion or any other comments that in any manner state, suggest or imply that anyone or any entity has done anything unlawful, wrong or wrongful – instead, each situation must be fully evaluated with all of the evidence, whereas this post only includes summary comments about information that may or may not be accurate and that most likely will change over time.

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Ohio Bests California On Elder Abuse Reporting Requirements

I came across the following US News article (see link below) – Ohio (my birth state) has a new elder abuse reporting law which expands the categories of people who are required to report elder abuse – as reported in the article:

“The Department of Job and Family Services says mandatory reporters now include more individuals in financial services, legal and medical professions.

The state says those can include pharmacists, dialysis technicians, firefighters, first responders, building inspectors, CPAs, real estate agents, bank employees, financial planners and notary publics.

Current reporters include lawyers, social workers and clergy. The expanded reporting requirements take effect Saturday following under a new Ohio law.”

Here is the link to the article Click Here For US News Article

California Welfare & Institutions Code Sections 15630 and 15630.1 identify mandated reporters of elder abuse in California.

Section 15630 identifies mandatory reporters of elder and dependent adult abuse (as defined at Section 15630(b)(1)) as follows:

(a) Any person who has assumed full or intermittent responsibility for the care or custody of an elder or dependent adult, whether or not he or she receives compensation, including administrators, supervisors, and any licensed staff of a public or private facility that provides care or services for elder or dependent adults, or any elder or dependent adult care custodian, health practitioner, clergy member, or employee of a county adult protective services agency or a local law enforcement agency, is a mandated reporter.

(b) (1) Any mandated reporter who, in his or her professional capacity, or within the scope of his or her employment, has observed or has knowledge of an incident that reasonably appears to be physical abuse, as defined in Section 15610.63, abandonment, abduction, isolation, financial abuse, or neglect, or is told by an elder or dependent adult that he or she has experienced behavior, including an act or omission, constituting physical abuse, as defined in Section 15610.63, abandonment, abduction, isolation, financial abuse, or neglect, or reasonably suspects that abuse, shall report the known or suspected instance of abuse by telephone or through a confidential Internet reporting tool, as authorized by Section 15658, immediately or as soon as practicably possible. If reported by telephone, a written report shall be sent, or an Internet report shall be made through the confidential Internet reporting tool established in Section 15658, within two working days.

California Welfare & Institutions Code Section 15630.1 identifies mandatory reporters of suspected elder and dependent adult financial abuse as follows:

(a) As used in this section, “mandated reporter of suspected financial abuse of an elder or dependent adult” means all officers and employees of financial institutions.

(b) As used in this section, the term “financial institution” means any of the following:

(1) A depository institution, as defined in Section 3(c) of the Federal Deposit Insurance Act (12 U.S.C. Sec. 1813(c)).

(2) An institution-affiliated party, as defined in Section 3(u) of the Federal Deposit Insurance Act (12 U.S.C. Sec. 1813(u)).

(3) A federal credit union or state credit union, as defined in Section 101 of the Federal Credit Union Act (12 U.S.C. Sec. 1752), including, but not limited to, an institution-affiliated party of a credit union, as defined in Section 206(r) of the Federal Credit Union Act (12 U.S.C. Sec. 1786(r)).

It has long been written that elder abuse is an epidemic. And yet, it goes on year after year. In California we are past due for expanded and improved mandatory reporting and mandatory reporter requirements, requirements that financial and investment, and similar businesses be required to have an elder client provide the name and information of a trusted family member or friend that the institution must contact in situations where the institution reasonably believes that there is a possibility that abuse is occurring or that the client lacks mental capacity to understand the issues presented or to make decisions or to resist abuse including possible undue influence or persuasion.

I have written and given presentations about elder abuse prevention, remedial actions and remedies, mandatory reporting requirements, and other related topics for years, and I have handled many cases involving financial, trust/will, deed and other elder abuse cases including undue influence or persuasion, lack of mental capacity or related mental limitations, forgery, fraud, etc.

I have also written that it is simply impossible for and people should not expect governmental agencies (such as adult protective services, police, district attorneys, etc.) to handle the multitude of reported (and unreported) cases of abuse – it is simply impossible for the agencies to handle the numbers of cases, the agencies do not have the staff to litigate these cases during the year or more that each case can take, and the agencies should coordinate more with other people outside of the agency or government who can also provide help and representation (qualified private lawyers, CPAs, financial and investment advisors, banks, mental and physical health professionals, etc.) .

So . . . the abuse, and situations in which a person lacks sufficient mental capacity understand or evaluate the issues at hand or the ability to resist undue influence, go on and on without adequate resources or attention . . . and now Ohio with its mandatory reporting requirements also has passed and bested California.

Best to you, David Tate, Esq. (and inactive California CPA), Royse Law Firm, Menlo Park, California office, with offices in northern and southern California.  My blogs: trust, estate, elder abuse and conservatorship litigation http://californiaestatetrust.com, D&O, boards, audit committees, governance, etc. http://auditcommitteeupdate.com, workplace http://workplacelawreport.com

David Tate, Esq., Overview of My Practice Areas (Royse Law Firm, Menlo Park, California office, with offices in northern and southern California. http://rroyselaw.com)

  • Civil Litigation: business, commercial, real estate, D&O, board and committee, founder, owner, investor, creditor, shareholder, M&A, and other disputes and litigation
  • Probate Court Litigation: trust, estate, elder abuse, and conservatorship disputes and litigation
  • Administration: trust and estate administration and contentious administrations representing fiduciaries and beneficiaries
  • Workplace (including discrimination) litigation and consulting
  • Board, director, committee and audit committee, and executive officer responsibilities and rights

Royse Law Firm – Overview of Firm Practice Areas – San Francisco Bay Area and Los Angeles Basin

  • Corporate and Securities, Financing and Formation
  • Corporate Governance, D&O, Boards and Committees, Audit Committees, Etc.
  • Intellectual Property – Patents, Trademarks, Copyrights, Trade Secrets
  • International
  • Immigration
  • Mergers & Acquisitions
  • Labor and Employment
  • Litigation (I broke out the litigation as this is my primary area of practice)
  •             Business & Commercial
  •             IP – Patent, Trademark, Copyright, Trade Secret, NDA
  •             Accountings, Fraud, Lost Income/Royalties, Etc.
  •             Internet Privacy, Hacking, Speech, Etc.
  •             Labor and Employment
  •             Mergers & Acquisitions
  •             Real Estate
  •             Owner, Founder, Investor, D&O, Board/Committee, Shareholder
  •             Lender/Debtor
  •             Investigations
  •             Trust, Estate, Conservatorship, Elder Abuse, and Administrations
  • Real Estate
  • Tax (US and International) and Tax Litigation
  • Technology Companies and Transactions, Including AgTech and HealthTech, Etc.
  • Wealth and Estate Planning, Trust and Estate Administration, and Disputes and Litigation

Disclaimer. This post is not a solicitation for legal or other services inside or outside of California, and also does not provide legal or other professional advice to you or to anyone else, or about a specific situation – remember that laws are always changing – and also remember and be aware that you need to consult with an appropriate lawyer or other professional about your situation. This post also is not intended to and does not apply to any particular situation or person, nor does it provide and is not intended to provide any opinion or any other comments that in any manner state, suggest or imply that anyone or any entity has done anything unlawful, wrong or wrongful – instead, each situation must be fully evaluated with all of the evidence, whereas this post only includes summary comments about information that may or may not be accurate and that most likely will change over time.

What is “mild cognitive impairment”? – forwarding a post by Dr. Mikol Davis and Carolyn Rosenblatt

I am forwarding below a link to a post by Dr. Mikol Davis and Carolyn Rosenblatt in which they discuss mild cognitive impairment (“MCI”). In my will and trust contest and financial elder abuse cases it is not uncommon for there to be issues relating to cognitive impairment, weakness or limitation vulnerabilities. In Court these can present challenging legal, evidentiary, and burden of proof issues. See also, for example, California Probate Code §86, and California Welfare & Institutions Code §15610.70 relating to undue influence, which are also copied and pasted below (and you should also note that additional statutes and case law pertain to these issues).

Thanks for reading. Best to you, David Tate, Esq.

The following is the link to the post by Dr. Mikol Davis and Carolyn Rosenblatt at aginginvestor.com:

https://www.aginginvestor.com/blog/what-is-mild-cognitive-impairment/?inf_contact_key=92cb029f002eadfe0044d6a1379ef77b1190ab49470cf8074c7b0b733b9b30c7

The following are California Probate Code §§86 and 15610.70:

California Probate Code §86

“Undue influence” has the same meaning as defined in Section 15610.70 of the Welfare and Institutions Code. It is the intent of the Legislature that this section supplement the common law meaning of undue influence without superseding or interfering with the operation of that law.

California Welfare & Institutions Code §15610.70

(a) “Undue influence” means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity. In determining whether a result was produced by undue influence, all of the following shall be considered:

(1) The vulnerability of the victim. Evidence of vulnerability may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability.

(2) The influencer’s apparent authority. Evidence of apparent authority may include, but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification.

(3) The actions or tactics used by the influencer. Evidence of actions or tactics used may include, but is not limited to, all of the following:

(A) Controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep.

(B) Use of affection, intimidation, or coercion.

(C) Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes.

(4) The equity of the result. Evidence of the equity of the result may include, but is not limited to, the economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship.

(b) Evidence of an inequitable result, without more, is not sufficient to prove undue influence.

* * * * *

John Trasviña for San Francisco School Board – I endorse John

I seldom get publicly involved in politics, but this time I am, and I endorse John Trasviña for the San Francisco School Board. Below I have provided a link to the website for John Trasviña in his run for the San Francisco School Board.

John would make a tremendous San Francisco School Board member. John’s San Francisco roots are deep. John attended San Francisco public schools while growing up, and John is experienced with San Francisco public schools. John has also served as a San Francisco Deputy City attorney, he was Dean of the University of San Francisco School of Law, and he was President Obama’s Assistant Secretary for Fair Housing & Equal Opportunity and President Clinton’s special counsel for immigrant workplace rights at the US Department of Justice. Obviously, John also understands how to run an organization and a school, governmental processes, and budgeting.

John cares about people, young people, students, and education, he is very approachable and good interacting with people of diverse backgrounds about challenging and difficult issues, and he is very good at dealing with issues and making improvements. John stands for excellence in education and opportunities for everyone. I endorse John for San Francisco School Board.

For information I am providing you with the link to John’s website. I ask that you also click on the About, Issues, Donate, and Endorsements links. The following is the link to John Trasviña’s website for San Francisco School Board https://www.johnforsf.com/

Thank you, David Tate

Consumer Financial Protection Bureau – Recommendations for financial institutions on preventing and responding to elder financial exploitation – to my connections – was something like this ever mandated or adopted as best practices?

I came across a March 2016, “Recommendations and report for financial institutions on preventing and responding to elder financial exploitation” prepared by the Consumer Financial Protection Bureau. The following is a link to the lengthy report, https://www.consumerfinance.gov/data-research/research-reports/recommendations-and-report-financial-institutions-preventing-and-responding-elder-financial-exploitation/

Many of the recommendations are worthwhile, particularly beginning with the recommendations on pages 12-57. I would like to know more about the steps or processes that financial institutions are taking to prevent and respond to financial elder abuse and exploitation, including elective best practices, and if there are requirements that are mandated by statute, regulation, rule, etc. I am particularly interested in financial institutions that are located in California, but practices or requirements outside of California are also of interest.

Thank you for your response – any information that you have is appreciated. If you wish, you can also respond to me by email at dtate@rroyselaw.com

Thank you, and best to you. David Tate, Esq.

Unpacking Undue Influence – forwarding a CEJC blog post by Mary Joy Quinn

Below I have provided a link to a recent post by Mary Joy Quinn on the California Elder Justice Coalition blog. The post in part discusses aspects of undue influence as viewed in the court system and also a possible undue influence screening tool. The post by Ms. Quinn is a worthwhile read.

The following is a quote from the post:

“The case review of 25 newly established conservatorships revealed that 88% of the people lacked judgment and insight.  Influencers were family, friends, and neighbors in the bulk of cases.  In 13% of cases, romantic partners were the influencers while telemarketers or lottery scammers were influencers in 20% of the cases.  The most common type of abuse was financial abuse, either cash or real estate, that could not be remedied without a conservatorship.  Tactics included playing on weakness of the victim, lying and deception, and repeated solicitations.”  

And below is a link to the blog post by Ms. Quinn. Thank you for reading. David Tate, Esq.

https://www.elderjusticecal.org/blog/unpacking-undue-influence

Paper from California Trustee and Beneficiary Responsibilities and Rights Presentation

Below is a link to my paper discussing California trustee and beneficiary responsibilities and right presentation – click the link for the paper and please also pass it along to other people who would be interested. Note: the paper does not provide legal advice, is not a solicitation for services, and every situation is different – you should consult with an attorney for your particular situation. Wishing you the best, David Tate, Esq.

Here is the link to the paper: A Summary of California Trustee and Beneficiary Responsibilities and Rights Dave Tate Esq for 05242018 presentation

Below is a screen shot of the paper discussion areas: