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

Does My Trust Contain A ‘Poison Pill’ ? Forwarded post from Gene Osofsky

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Avoid the ‘Poison Pill’ when creating Living Trusts for clients who may later need a Medicaid Long Term care subsidy, an interesting post from Gene Osofsky, click on the below link for the article:

Does My Trust Contain A ‘Poison Pill’ ? | Lawyer For Seniors.

 

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.

When Walking is No Longer an Option

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Good discussion and helpful comments from Dr. Landsverk – click on the following link – When Walking is No Longer an Option | ElderConsult Geriatric Medicine | Dr. Elizabeth Landsverk, M.D..

Dave Tate, Esq. (San Francisco / California)

Death Beds: Living Wills Slowly Take Root

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An interesting and worthwhile article. Death Beds: Living Wills Slowly Take Root – click here. A few years ago I handled a case where the issue was whether to disconnect mom from life support. The family was divided. Mom had no living will or other document expressing what her wishes would be. Mom was essentially comatose. The Court called in experts and family members also testified. A twist in the case – it turned out mom was over and improperly medicated and the medications were interacting – medications and their interactions were reduced and fixed and mom was fine for years – returned to her normal self.

Dave Tate, Esq. (San Francisco / California)

A good introduction to pooled special needs trusts from Golden State Pooled Trust

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The following is a link to a good introduction discussion about pooled special needs trusts from my friends at Golden State Pooled Trust, click here.

Dave Tate, Esq.

California’s Statutory Undue Influence

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California Welfare & Institutions Code §15610.70 provides a statutory definition of undue influence. Although §15610.70 falls under California’s Elder Abuse and Dependent Adult Civil Protection Act, pursuant to California Probate Code §86 the §15610.70 definition applies to the entire Probate Code, but also doesn’t replace common law undue influence: “’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.”

It is yet to be seen whether the §15610.70 statutory definition of undue influence is easier to present than the common law body of case law. Consideration should also be given to whether there are per se violation possibilities and instructions.

Welfare and Institutions Code §15610.70 provides:

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.

* * * * *

California Trustee Investment And Management Responsibilities (Part 1 of 2)

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CALIFORNIA TRUSTEE INVESTMENT AND MANAGEMENT RESPONSIBILITIES
(Part 1 of 2)

This is part one of two discussions about California trustee investment and management responsibilities. This is a complicated topic. Each situation needs to be evaluated on its own. Most likely no two situations are the same. You should consult legal counsel.

The trustee has the duty to invest trust property for the benefit of the beneficiaries, subject to restrictions or limitations stated in the trust. The trustee’s investment powers are provided by the terms of the trust. Always read the complete terms of the trust first. If not derived from the trust, the investment powers are also derived by statute, case law and the factual circumstances. You can refer to Probate Code §§16200(a) and (b) and 16047. Generally, the trustee has the duty to make trust assets economically productive.

The trustee is subject to the Uniform Prudent Investor Act, unless the trust provides for a greater or lesser standard of care. You can refer to Probate Code §§16045 through 16054. The trustee should carefully read the trust terms and the Uniform Prudent Investor Act.

A trustee should invest and manage the trust assets as a prudent investor would, by considering the purposes, terms, distribution requirements, and other circumstances of the trust. The trustee should exercise reasonable care, skill, and caution.

A trustee’s investment and management decisions relating to individual assets and courses of action are evaluated in the context of the trust’s portfolio as a whole and as a part of an overall investment strategy reasonably suited to the trust’s risk and return objectives.

Pursuant to Probate Code §16047 the trustee should or may consider such matters as economic conditions, inflation or deflation, tax consequences, the role of each investment or action within the overall trust portfolio, the expected rate of return from income and appreciation, other financial resources of the beneficiaries known to the trustee, needs for liquidity, regularity of income, preservation and appreciation of principal, and asset special value or relationship to the purpose of the trust or the beneficiaries.

The trustee should locate and take possession of the trust assets, and develop an investment strategy suited to the purpose of the trust. You can refer to Probate Code §§16006 and 16049.

Part two contains the remaining discussion and will be posted shortly.

Thanks for reading. Dave Tate, Esq. (San Francisco / California – http://californiaestatetrust.com)

California Co-Trustees Can Create Special Problems

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What if you are a co-trustee and you and your co-trustee don’t agree on significant trust administration decisions, or worse yet, you believe that your co-trustee has breached his or her fiduciary duties?

California Probate Code Section 16013 states that if a trust has more than one trustee, each trustee has a duty to (a) participate in the administration of the trust, and (b) take reasonable steps to prevent a co-trustee from committing a breach of trust or to compel a co-trustee to redress a breach of trust.

In other words, except possibly in a circumstances where the terms of the trust provide otherwise, co- and multiple trustees need to sufficiently get along and make decisions with which they both or all agree as the case might be.  This can be accomplished, of course, but co- and multiple trustee situations also can create challenges and difficulties, and work better when communications are good with proper demeanor.  If you are in a co- or multiple trustee situation you need to act accordingly.

Dave Tate, Esq., San Francisco and California

Guardian ad litems, conservators, and possibly trustees and attorneys . . . quasi-judicial immunity and litigation privilege protections

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McClintock v. West (California Court of Appeal, Fourth Appellate District, Case No. G046483, September 9, 2013)

I’m not going to discuss the facts and holding in McClintock v. West in detail; however, the case and the citations in the case could be important to court appointed or approved fiduciaries (guardian ad litems, conservators, and possibly trustees and attorneys) if they are sued for breach of duty or malpractice.  McClintock v. West holds that a guardian ad litem appointed by the court (and subject to court review) enjoys the advantages and defenses of quasi-judicial immunity and the litigation privilege. McClintock v. West also discusses in dicta, with case citations, that the same or similar protections may also be enjoyed by other court appointed or approved fiduciaries including conservators and possibly trustees and attorneys. McClintock v. West is a good defense case to keep in mind.

Dave Tate, Esq. (San Francisco)

Senior Care Assessment – Video Interview Discussion with Mercedes Roses

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The following is a link to a video interview discussion with Mercedes Roses about senior care assessment. Enjoy – I hope you find it helpful.

Dave Tate, Esq. (San Francisco)
Trust, estate, conservatorship and elder litigation and administrations; civil, business, real estate, injury, product liability, public entity and professional liability litigation; dispute resolution and mediator; risk management, D&O, boards and committees, and governance.

An Important Case For Everyone Involved In Conservatorship And Care Issues – Conservatorship of Maria B. – Burden Of Proof On A Fundamental Right

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The Conservatorship of Maria B. is an important new conservatorship case on several different issues. Conservatorship of the Person and Estate of Maria B., from the California Court of Appeal, Fourth Appellate District, Case Number G047889, July 31, 2013.

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Maria is a developmentally disabled adult. Maria’s doctors recommended a hysterectomy and oophorectomy to treat Maria’s condition. Maria’s mother is the limited conservator who filed a petition with the court for an order authorizing the surgery. The court in part discussed different burdens of proof and which one applied in this circumstance. In pertinent part the court held that since the surgery would impact a fundamental right, i.e., Maria’s ability to bear children, on her petition for court authorization to have the surgery performed, as conservator Maria’s mother had to satisfy a clear and convincing burden of proof.

The court held that the default standard is the preponderance of the evidence, but that courts nonetheless apply the heightened clear and convincing evidence standard in a variety of cases when important or fundamental rights are at stake.

The court concluded that the clear and convincing evidence standard was required because the surgery would have a substantial and irreversible impact on Maria’s fundamental opportunity to bear children.

Specifically the court held that the conservator of Maria must present clear and convincing evidence to show that the surgery is medically necessary under section 2357 because the medical treatment impacts a fundamental right.

The court clarified that the clear and convincing standard is the exception rather than the norm under section 2357 but left the determination of the appropriate burden to be made on a case by case basis.

You might also be aware that the standard burden of proof for the establishment of a conservatorship also is clear and convincing evidence and a proposed conservatee has the right to have a petition for conservatorship determined by a jury.

The court in Maria B. discussed different burdens of proof:

The preponderance of the evidence burden is essentially more likely than not.

The beyond a reasonable doubt burden is designed to exclude as nearly as possible the likelihood of an erroneous judgment and imposes almost the entire risk of error upon the party bearing the burden of proof.

The clear and convincing burden is an intermediate standard that increases the burden on the party seeking relief requiring a finding of high probability, based on evidence so clear as to leave no substantial doubt and sufficiently strong to command the unhesitating assent of every reasonable mind.

The court did not describe or attempt to list the universe of fundamental rights that could arise in conservatorship cases. Those issues will undoubtedly arise in other cases. It was also not an issue in the case whether or not Maria was entitled to a jury trial on the petition for authorization to have the surgery performed which would have a substantial and irreversible impact on Maria’s fundamental opportunity or right to bear children.

Issues and holdings in Maria B. clearly will be important in other conservatorship and care-related cases.

Dave Tate, Esq. (San Francisco)
Trust, estate, conservatorship and elder litigation and administrations; civil, business, real estate, injury, product liability, public entity and professional liability litigation; dispute resolution and mediator; risk management, D&O, boards and committees, and governance.