Category Archives: will, estate, trust, elder, contest, fiduciary, decedent, intent, disability, conservatorship, elder abuse, elder protection, trustee, beneficiary, executor

From a fiduciary viewpoint, meeting the financial planning challenges of the future – Tate comments on Journal of Accountancy Article

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Click the following link to a pdf with my comments on a Journal of Accountancy article: Meeting the financial planning challenges of the future. My comments are from a fiduciary viewpoint in response to article discussions about robo-advisers, use of long-term cash projections, and spotting and planning for dementia.  This is a good article, although short in length, and it does not purport to cover these issues entirely. In any event, every situation is different. Click on the following link: Tate comments J of A article meeting the financial planning challenges of the future

Dave Tate, Esq. and licensed CPA (inactive) California
Blogs: http://californiaestatetrust.com and http://directorofficernews.com

Using Social Security Information To Restrict The Rights Of Some Beneficiaries To Own Guns

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Here’s an interesting development and article from the Los Angeles Times, CLICK HERE, discussing the Obama Administration’s push to use social security and social security information about elder and other beneficiary disabilities and limitations as a means to restrict people from owning guns. Putting aside whether you are pro-gun or anti-gun, I have problems with the use of that information for this purpose from a government mandated program, which information also should be private, how the government would determine that someone is incapable of owning a gun, and that the determination is made without any legal adjudication by an independent court. This effort targets the elderly, people who have been mandated to pay into the social security system, and people with disabilities including disabilities that don’t necessarily establish an inability to own a gun.

Dave Tate, Esq. (San Francisco / California).

NAIC Seniors Consumer Insurance Fraud Alert – An Area Of Board Oversight?

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The following is a link to something interesting that I came across – an alert by the National Association of Insurance Commissioners about insurance fraud scams against seniors.

Click to access legal_bulletin_seniors_beware.pdf

. The alert contains interesting statistics about the amount of possible fraud, such as “free lunch” seminars. Not to say that a “free lunch” seminar is necessarily a fraud scheme. But as we all know, the purpose of a “free” seminar is to find buyers. For me, however, the alert points to a different problem. The alert assumes that a senior who goes to a “free” seminar, for example, is mentally competent to follow the steps indicated to critically evaluate and resist the fraud. That assumption begs the question or issue: does the senior have the mental competency and fortitude to critically evaluate and resist the sales pitch? In my experience, it’s not uncommon that a senior does not have that mental capacity. Thus, in that circumstance the senior does not have the mental capacity to follow the recommendations provided by the NAIC in its alert, in which case the alert is useless, which also is the intent of the insurance sales person who is trying to sell a senior an insurance product that is not appropriate for the senior. At least policies and procedures, and board oversight of those policies and procedures, are needed so that the insurance entity and broker have in place detailed policies and procedures to determine that only appropriate policies are sold, through appropriate marketing means, with special attention to and oversight of marketing and policies sold to seniors, with the ability of the senior to rescind the policy, without having to hire legal counsel to fight it out with the insurance entity. Where is this requirement, how is it implemented, and where is the board’s active oversight?

Dave Tate, Esq. (San Francisco / California), http://californiaestatetrust.com, http://directorofficernews.com

There Needs To Be A Law – Petitioning For Conservatorship Should Not Disinherit You

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Short and sweet. I’m not sure what the wording should be, but we need a law that to some extent protects a person from being disinherited for filing a petition for conservatorship.

The situation that I have in mind: a son or daughter files a petition for conservatorship of their mother or father. In doing so, the son or daughter risks that mom or dad will be very angry with the petition and will seek to change their estate planning to exclude or disinherit the son or daughter.  There needs to be some protection for the son or daughter, whether the petition for conservatorship is granted or not.

I’m not saying that I favor conservatorships. A conservatorship can be a serious restriction on a person’s constitutional rights and freedom. All I’m saying is that a son or daughter should not have to fear possible disinheritance for filing a petition for conservatorship in a situation where there is no finding that the petition was filed in bad faith or where there is evidence that a conservatorship might be necessary even if less restrictive options are available.

Dave Tate, Esq. (San Francisco and California), click link to this blog, Law Office of David W. Tate, and also working with Albertson & Davidson LLP, northern and southern California click link to Albertson & Davidson website.

Will and Trust Undue Influence and Fraud – Sibling v. Sibling Misrepresentations

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What is Elder and Dependent Adult Self Abuse or Neglect?

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This is a significant category of elder and dependent adult abuse or neglect that generally isn’t discussed or defined. When thinking about elder and dependent adult abuse most of us tend to first think about abuse committed by persons other than the victim, and those perpetrators are typically classified either as outside third party or family perpetrators. Statistically, I have read that approximately 1/3 of the perpetrators are outside third party perpetrators, and about 2/3 of the perpetrators are family members.

But what about self abuse or self neglect. The following is a definition of self neglect from the National Center on Elder Abuse – and then below that definition I have added one area to that description:

“Tragically, sometimes elders neglect their own care, which can lead to illness or injury. Self-neglect can include behaviors such as:

  • Hoarding of objects, newspapers/magazines, mail/paperwork, etc., and/or animal hoarding to the extent that the safety of the individual (and/or other household or community members) is threatened or compromised.
  • Failure to provide adequate food and nutrition for oneself.
  • Failure to take essential medications or refusal to seek medical treatment for serious illness
  • Leaving a burning stove unattended
  • Poor hygiene
  • Not wearing suitable clothing for the weather
  • Confusion
  • Inability to attend to housekeeping
  • Dehydration

Self-neglect is one of the most frequently reported concerns brought to adult protective services. Oftentimes, the problem is paired with declining health, isolation, Alzheimer’s disease or dementia, or drug and alcohol dependency.

In some of these cases, elders will be connected to supports in the community that can allow them to continue living on their own. Some conditions like depression and malnutrition may be successfully treated through medical intervention. If the problems are severe enough, a guardian may be appointed.”

See also the discussion about self neglect by the National Clearinghouse on Abuse in Later Life at Click Here.

The area that I would add is financial elder and dependent adult self abuse or neglect – i.e., difficulty or the inability to make sound financial management decisions or choices, also including (1) lack of or difficulty with mental capacity and ability to understand the issues and choices at hand, (2) delay, procrastination or simply not making decisions that need to be made, and (3) also including an already recognized area of abuse by a third party which is the inability to resist the efforts or activities by a perpetrator of financial abuse.

I am seeing an already not insignificant, and an increasing number of materials and articles about elder and dependent adult situations that fit the financial elder and dependent adult self abuse or neglect definition.

These situations can raise a whole host of issues to address, such as how to protect the elder or dependent adult without violating his or her rights, in addition to satisfying personal third party duties and avoiding personal third party liability.  A scenario, for example, where you might see this type of situation in the financial category is when the elder or dependent adult goes to consult with his or her banker, investment advisor or financial advisor and the banker or advisor sees or gets a feeling that there are or might be actions or occurrences by the elder or dependent adult that evidence financial elder or dependent adult self abuse or neglect.

Please do pass information about self abuse, this blog and this blog post to other people who would be interested.

Dave Tate, Esq. (San Francisco), Civil Litigation; Trust, Estate, Conservatorship and Elder Abuse Litigation; Trust, Estate and Conservatorship Administration; Representing Fiduciaries and Beneficiaries.

Elder abuse experts: Expect more cases like this one in Bethesda – pressure sores at home

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I debated whether to post this article – it’s disgusting – pressure sores at home. All avoidable and better treated. Click on the following, Click Here.

Dave Tate, Esq. (San Francisco), Civil Litigation; Trust, Estate, Conservatorship and Elder Abuse Litigation; Trust, Estate and Conservatorship Administration; Representing Fiduciaries and Beneficiaries; D&O, Boards and Audit Committees. My other blog: http://directorofficernews.com.

Fresno County employees accused of stealing from the dead

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Below I have copied and pasted a news article about allegations that some employees of the Fresno County Public Administrator’s Office have been accused of stealing. The District Attorney is investigating. At the end of this sentence I have provided the link to the article, which I have also copied and pasted below, Click Here.

Dave Tate, Esq., San Francisco, California.

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Thursday, June 04, 2015 04:00PM

FRESNO, Calif. (KFSN) —

There are stunning allegations against an entire Fresno County department. Three employees are accused of stealing from the dead. The District Attorney’s office is pursuing this case thoroughly, officials said Thursday.

The investigation has been going on for a few weeks now but they say theft from people who died without anyone to look after their estate has been happening for years.

Three unnamed Fresno County employees of the Public Administrator’s Office are now accused of stealing from the dead. The case against them began several weeks ago as an internal investigation. It’s now a criminal investigation and their former boss says he’s devastated by the accusations.

“Well I feel violated, because these people had my support,” said Dr. David Hadden. He used to be the elected official in charge of what was the County Coroner and Public Administrator’s office.

The office, which has three public administrators and an accountant, who the DA says is not suspect in the case, handles estates of the dead when there is no family that can. Hadden said Thursday there was a system in place to prevent theft in what he calls ‘an office subject to abuse.’

“When they go out to an estate to take inventory, they never take it by themselves,” Hadden said. “They always have somebody with them, so there’s a check. But what good does it do when they’re both corrupt.”

In January the public administrator’s office merged with the district attorney’s office following a Board of Supervisors vote. DA Lisa Smittcamp says it’s not clear how many victims there are or how much money or personal items were stolen.

“It is the most disturbing thing that has happened to me since I’ve been sworn in.,” Smittcamp said at a news conference Thursday afternoon. “It is absolutely unacceptable to me as a citizen, as an elected official, and as the district attorney of this county, I am disgusted by this behavior and I will not tolerate it, and I will not allow it to continue.”

She is now looking to other counties for guidance on moving forward since the office in question now has just one employee. The three suspected of the theft were placed on leave last week. Two of them have since resigned. Dr. Hadden says their jobs ranged in pay from roughly $40,000-$50,000 a year, and each had been employed for more than five years.

Hadden says he was only able to investigate any possible wrongdoing when a complaint was filed. None, he says, on this scale ever came to him during his administration.

The DA’s office is vowing to make changes, and is urging anyone who may have information, or know of victims, to report that immediately.

For more information on possible theft from estates of deceased in Fresno County:

Call 559-600-2115 or toll free: 855-600-6595 or go to http://www.co.fresno.ca.us

Video and Paper – California Trustee and Beneficiary Responsibilities and Rights

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This blog post includes a video about California trustee and beneficiary responsibilities and rights, and below the video you will find a link to my paper discussing those topics in detail. Please pass this blog post to everyone who would be interested in these materials. Thank you. Dave Tate, Esq. (San Francisco and California).

Click on the following link for the paper discussing California trustee and beneficiary responsibilities and rights, A Summary of California Trustee and Beneficiary Responsibilities and Rights Dave Tate Esq 05252015

Attended the Silent Trusts Presentation – San Mateo Co. Bar Estate Planning

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Yesterday I attended the monthly San Mateo County Estate Planning and Probate Section lunch presentation. This presentation was on silent trusts, presented by attorneys Paul Barulich and Matthew Matiasevich. An interesting discussion about the planning, although rather limited planning, that parents can do in California to keep an irrevocable trust private from the beneficiaries, i.e., so that the beneficiaries don’t even know the trust exists. When might trustors desire this type of privacy from beneficiaries? One scenario could be when parents want their children to strive and achieve at least into their twenties without the certain knowledge that they will be receiving substantial trust assets.  At least based on responses by attendees, not many estate planning attorneys are preparing silent trusts.

One noted tidbit of information: even if the trust is drafted as a silent trust, trustee/trust duties under California Probate Code sections 16060.7, 16061 and 16061.5 are not waivable. Thus, for example, in some situations the trustee must still provide the terms of the trust and report to the beneficiary by providing information relating to the administration of the trust relevant to the beneficiary’s interest, if the beneficiary requests the trustee to do so.  Accordingly, even if a prospective beneficiary does not know that a trust exists, i.e., because the trust is silent, a prospective beneficiary should always ask a suspected trustee to provide information about any trust in which the prospective beneficiary is a beneficiary. Upon that request the trustee must provide some information.

Enjoy.

Dave Tate, Esq. (San Francisco / California) – Civil and Estate, Trust, Conservatorship and Elder Abuse Litigation – member of the Estate Planning and Probate Section Executive Committee.

My other blog, http://directorofficernews.com.