The following link will bring you to a publication by the National Institute on Aging entitled The Dementias, Hope Through Research. The publication provides a good overview or background to dementia including types, causes, diagnosis, treatment, etc. For the publication, Click Here.
Dave Tate, Esq. (San Francisco/California)
My other blog, D&O, audit committees, boards, officers, risk management, compliance and governance, http://directorofficernews.com.
An interesting article discussing a finding that antipsychotic drugs for dementia increase the risk of death. I find equally interesting the numbers of elderly who are receiving antipsychotic drugs. Click on the following link for the article, Click Here.
Dave Tate, Esq. (San Francisco)
My other blog for directors, boards, audit committees, officers, CEO’s, CFO’s, risk management, governance and compliance: http://directorofficernews.com
My recent presentations:
1. Probate court litigation for attorneys, trustees and caregivers;
2. Elder abuse – identify, stop, report and remedy; and
3. Mandated reporter requirements for elder abuse.
Dave Tate, Esq. (San Francisco)
My other blog: D&O, audit committees, boards, CFO’s, CEO’s, risk management, accountants, governance and compliance, http://directorofficernews.com
The following is a link to the facts and figures about Alzheimer’s, from the Alzheimer’s Association – shocking – click on the following link for the discussion, Click Here.
Dave Tate, Esq. (San Francisco and California)
Elder and dependent adult financial abuse is on the rise, and within the community resources and coordination are inadequate to address the issue. Adding to that difficulty, the possible indicators of elder and dependent adult financial abuse are numerous – it isn’t possible to provide an exhaustive list of financial abuse indicators – and although in some situations the occurrence of abuse is obvious many times whether actual abuse is occurring, or whether you should suspect that abuse is occurring, really depends upon the facts and circumstances at that time, and how you interpret those facts and circumstances. A legitimate explanation for the occurrence might also exist, or it is possible that the elder or dependent adult simply is making what might be considered to be an unwise decision that isn’t being caused by abuse.
All of the above having been said, it is recognized that there is a community-wide need for the collaboration of people and resources, and a visible discussion about elder and dependent adult financial abuse, how to spot it and what to do when it is suspected. The below list of possible financial abuse indicators is intended to be for helpful discussion purposes, recognizing that each situation must be separately evaluated.
As an overall initial indicator, basically, possible elder or dependent adult financial abuse typically becomes apparent from a financial, asset or property situation that appears to be unnatural or out of character for that elder or dependent adult, or for the typical similar person in society. For the purpose of this discussion, under California law a dependent adult is someone age 18 or older and an elder is someone age 65 or older.
So . . . the following are some of the possible indicators or situations where there is greater opportunity for abuse, including undue influence, to occur, but I am sure that you can also come up with additional indicators.
√ Increased or unusual banking activity.
√ An unusually, or out of the ordinary, large transaction.
√ The purchase of an unusual item or service.
√ Money being paid to or for the benefit of someone out of the ordinary. The person could be a stranger to the elder or dependent adult, a caregiver, a housekeeper, a neighbor, a friend, a gardener, or even a family member.
√ A change in account title or authority.
√ Someone improperly using his or her authority over the elder or dependent adult’s account. Possible a trustee, attorney in fact, co-account holder, family member, “friend” or other person.
√ Unusual credit card transactions or balances.
√ A change in deed or real property or account title or ownership.
√ Unusual ATM activity.
√ Telemarketing and mail fraud; fake prizes; fake accidents; unnecessary purchases or home improvements; getting a windfall upon the payment of money or by providing information.
√ Risky, unnecessary or unusual investments, insurance, warranties or annuities.
√ Unusual people accompanying the elder or dependent adult; new or unusual acquaintances; new “friends,” boyfriends or girlfriends.
√ The elder or dependent adult not speaking for himself, or herself; or some other person directing the elder or dependent adult, the situation or the proposed transaction.
√ The elder or dependent adult acting in a secretive or evasive manner; or perhaps in an overly defensive or hostile manner in response to questions or even in response to typical conversations.
√ The elder or dependent adult being forgetful, disorganized, disoriented, confused, or unaware of his or her surroundings or common events.
√ The elder or dependent adult acting paranoid or fearful about the bank or investment or financial institution, or about his or her accounts.
√ A change in the appearance, actions or demeanor of the elder or dependent adult; social withdrawal; unkempt; or health problems, including what is referred to as self-abuse.
√ The elder or dependent adult being concerned about who will help or assist him or her, or take care of him or her.
√ Expressions of concern, pressure, worry or fear.
√ Excessive payment for a product or subscription, or for services; or payment for an unnecessary product or subscription, or for services.
√ Excessive or unnecessary borrowing by the elder or dependent adult, or someone on his or her behalf.
√ The elder or dependent adult wanting to avoid conversation.
√ Unusual or unnatural will, trust, power of attorney, deed, mortgage or account terms or documents; or unusual or unnatural changes in the terms or conditions of those documents; or the unusual or unnatural selection or nomination of the person to exercise authority in or over those documents.
√ Documents, checks, payments, etc., missing, misplaced or stolen.
√ The elder or dependent adult being evicted, or loss of utilities.
√ The elder or dependent adult becoming isolated from others, either because of other people causing that isolation, or because of the elder or dependent adult’s lack of interest or motivation.
√ Forged, missing, or strange-looking signatures.
√ Changes in financial institution.
√ Changes in account, IRA, or insurance beneficiaries.
√ Unpaid bills.
√ The sudden appearance, assistance or interest of strangers, friends or relatives.
√ New people helping the elder or dependent adult around the house, or with the yard; home improvements.
√ Associating with much younger people.
√ Reluctance to discuss financial matters.
√ The elder or dependent adult’s increasing tiredness, withdrawal or depression.
√ The sudden or unexplained transfer of assets.
* * * * *
Dave Tate, Esq. (San Francisco / California)
Undue influence is typically proven by inference or circumstantial evidence, not limited to the actual time that the will or trust was executed but also based on facts relevant to the issues both before and after execution. Estate of Franco (1975) 50 Cal. App. 3d 374, 382; Estate of Baker (1982) 131 Cal. App. 3d 471, 481. To make the determination more difficult, different law and standards can apply depending on whether the document in question is a will or trust, different judges will apply different standards and approaches, and there can be a presumption that a signed will or trust that isn’t a forgery is valid and effective. On the other hand however, a presumption of undue influence can apply in certain statutory, fiduciary, and confidential relationship situations. The facts and evidence in each case need to be carefully evaluated particularly when the will or trust contains provisions that are not natural to what the testator would have wanted and in cases where there are significant sudden or significant changes.
Undue influence consists of conduct that causes the testator to make a disposition of his or her property that is different from that which he or she could have done had he or she been permitted to follow his or her own inclination. Estate of Baker (1982) 131 Cal. App. 3d 471, 480-81.
Pursuant to California Civil Code §1575, undue influence exists upon any one of the following separate and distinct criteria:
(1) the use, by one in whom confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him;
(2) taking an unfair advantage of another’s weakness of mind; or
(3) taking a grossly oppressive and unfair advantage of another’s necessities or distress.
There is no fixed definition or inflexible formula – rather the question is whether from the entire context it appears that the testator was induced or his decision making was induced to do or forbear to not an action which he or she would not do, or would do, if left to act freely. Keithley v. Civil Service Board (1970) 11 Cal. App. 3d 443, 451.
Under Cal. Civ. Code §1575(2) the weakness of mind can be temporary and need not be incapacitating. Odorizzi v. Bloomfield School District (1966) 246 Cal. App. 2d 123, 131. Under Cal. Civ. Code §§1575(2) and (3) the use of over-persuasion is often accompanied by certain characteristics examples of which might be: discussion of the transaction at an unusual or inappropriate time; consummation of the transaction in an unusual place; insistent demand that the event be finished at once; emphasis on the untoward consequences of delay; the use of multiple persuaders; the absence of third-parties; or statements that there is no time to consult others. Odorizzi v. Bloomfield School District (1966) 246 Cal. App. 2d 123, 133.
Although fraud and undue influence are separate grounds for setting aside a will, and undue influence can be found without any fraud, undue influence also can be a species of fraud or constructive fraud as undue influence and fraud can be closely related and fraud may be considered in determining whether there was undue influence. Estate of Garibaldi (1961) 57 Cal. 2d 108, 114; O’Neil v. Spillane (1975) 45 Cal. App. 3d 147, 158 (undue influence as a species of constructive fraud); Stewart v. Marvin (1956) 139 Cal. app. 2d 769, 775 (undue influence as a species of constructive fraud); Estate of Newhall (1923) 190 Cal. 709, 718; Estate of Ricks (1911) 160 Cal. 467, 480; however, see also, Hagen v. Hickenbottom (1995) 41 Cal. App. 4th 168(a showing of false or fraudulent statement is not a necessary element of undue influence).
The California elder abuse statutes provide yet another statutory definition of undue influence. California Welfare and Institutions Code section §15610.70 provides the following definition:
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.
The facts and evidence in each case need to be carefully evaluated.
Dave Tate, Esq. (San Francisco / California)
The following is the statutory definition of financial abuse of an elder or dependent adult as defined in California Welfare & Institutions Code §15610.30. Many of the aspects of the definition and its meaning as applied to different situations remain yet to be interpreted by the Courts. Nevertheless, the definition is helpful in may clear situations of abuse, and applicability can be argued in less clear situations.
(a) “Financial abuse” of an elder or dependent adult occurs when a person or entity does any of the following:
(1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.
(2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.
(3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 1575 of the Civil Code
(b) A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.
(c) For purposes of this section, a person or entity takes, secretes, appropriates, obtains, or retains real or personal property when an elder or dependent adult is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult.
(d) For purposes of this section, “representative” means a person or entity that is either of the following:
(1) A conservator, trustee, or other representative of the estate of an elder or dependent adult.
(2) An attorney-in-fact of an elder or dependent adult who acts within the authority of the power of attorney.
Dave Tate, Esq. (San Francisco / California) – trust, estate, conservatorship, elder and civil litigation, and contentious administrations.
A great article, review of celebrity estate planning and litigation lessons, click here (and for additional discussion, click on the link at the bottom of the article).
Dave Tate, Esq. (San Francisco / California), trust, estate, conservatorship, elder and civil litigation, and contentious trust and estate administrations.
Yes, in this case it is probably best to hire a private professional fiduciary to be the conservator or at least provide advice. Click on the following link for the article. Enjoy.
Amanda Bynes’ mother cedes part of daughter’s conservatorship to private trust firm – Newsday.
Dave Tate, Esq. (San Francisco / California), http://californiaestatetrust.com
The following article raises interesting issues – click on the link below. Whether or not a will or trust is forged, i.e., is or is not in the handwriting of the decedent often is in part a battle of the handwriting experts. If you have never been involved in a handwriting case – it is a fascinating area of forensics. Whether or not the decedent had mental capacity to execute the document when it was signed – whether or not the document represents his wishes – and whether or not he was unduly influenced, can raise factual, medical and psychological issues.
Enjoy. Dave Tate, Esq.(San Francisco / California) – estate, trust, conservatorship and elder litigation and difficult administrations.
Disclaimer: The contents and links on this blog do not provide legal or other advice – they are for discussion only – you need to consult with an attorney or other professional for your specific situation.
Probate, trust, estate, will, elder abuse, real property, power of attorney, conservatorship, Probate Court, and contentious administration related disputes, conflicts and litigation; and mediator and dispute resolution services. http://Californiaestatetrust.com. Note, I am posting future posts to http://tateattorney.com 