Update re Deb’s case – filed Florida petitions to achieve Deb’s wishes – everything has been withheld including Deb’s ashes and Tate ancestry and legacy personal property, etc. . . .

In Deb’s case (my sister Deborah (Tate) Trotta) – I have had to retain a Florida attorney to achieve Deb’s wishes. Petitions were filed and served last week.

As a general course of action I try to resolve issues and disputes prior to initiating litigation – in that regard I had reached out and communicated, and my attorney also sent a pre-litigation letter to which there was no response. In any event, it has been eight months since Deb’s death – it is obvious that there isn’t going to be any cooperation, which I had been told previously, although I just didn’t comprehend the extent at that time, but I do now.

After the arguments and threats including threats of divorce and Deb’s decision and communication to finally divorce, everything has been controlled and kept including Deb’s ashes, the Tate ancestry and legacy personal property, pictures, jewelry, etc., the information, and all of the property, items and assets.

Deb was clear, for example, and it is admitted, that if Deb died, she wanted her ashes spread at Mt. Tamalpais and the California winery of one of Deb’s best life-long friends. Husband in Florida has controlled, and has refused to provide Deb’s ashes.

It is impossible for me to understand when people refuse even the obvious or basic duties and responsibilities, norms of simple human decency, or a decedent’s wishes including any possible partial closure for Deb and for her family, relatives and close life-long friends.

The post-death actions and inactions confirm and support information that Deb had said and texted about her situation, things that were going on, and the bad relationship and culture.

I personally continued trying to communicate through the end of February, 2022. Communications back to me had actually stopped on September 22, 2021 (just 10 days after Deb’s body was found on September 12), after I requested that I be provided what was said to be Deb’s last text to husband at 5:37 pm Florida time on September 11, 2021 – as possibly one of Deb’s last texts, obviously I wanted to know what she said and what was going on. My request was refused.

But I do have a slightly later text from Deb on September 11, 2021 at 2:46 pm (pacific time, which would have been 5:46 pm Florida time). Deb expressed concern that they apparently had no money as her credit card had been rejected for insufficient funds, she gave money to husband, and if their house was sold, she just wanted to be sure that she received her share and entitlements. Nothing about Deb supposedly going to end her life. Just the opposite in fact.

It is my understanding that Deb’s phone unfortunately also was under husband’s account (which was a mistake). I requested the phone and everything on it, which was denied. And I requested that the phone and everything on it and relating to use of Deb’s phone be preserved. I expect that there will be more about this later.

I have looked at enough of the actual facts and evidence, i.e., not the narrative that was given – I don’t believe that Deb ended her life. And there was no reason for Deb to shoot herself to end her life – instead, Deb had decided and communicated to take back control for herself and Annie. Deb needed to obtain information about and access to the financial assets, investments, accounts and money including what she had had, what she had brought in and what had happened to it, what and how investments had been made and possibly lost, and her entitlements for 20 years of marriage – so that she could act on her options and move with Annie, possibly to Marin, Sonoma, or Napa Counties in California which she loved. Deb also loved San Diego. Deb isn’t the one who handled, controlled, and knew and made decisions about the investments and the primary financial accounts, at least that’s my understanding from what Deb had said.

So to speak, the jury will always be out, as will also causation, and duties and responsibilities. Deb and her situation also offer important learning lessens and learning opportunities, and probably also for a broad range and number of people, relationships, elders, and professionals. These occurrences have also prompted me to put more emphasis on certain of my practice areas including returning to a heavier focus on husband-and-wife relationships; elder and dependent adult abuse; control and possession of information, assets and accounts; persuasion, undue influence, and duress; and related professional duties and best, better or recommended actions and practices including for wealth, investment, FINRA, and financial advisors and planners, and estate planning attorneys.

Unfortunately the Sheriff (and Medical Examiner) were provided a very incomplete, and thus select or misleading narrative, that doesn’t make sense and isn’t supported (based on what they wrote in their Reports). Also unfortunately, there was essentially no critical investigation or evaluation.

There are facts that are verifiable (and additional verifiable facts exist) – the argument the morning of September 11 (per the Sheriff and also admitted) more than 24 hours before a call to me or a call to Deb’s relatives and close friends or a call to the Sheriff about Deb supposedly being missing; the actual wording (per the Sheriff) and interpretation of the supposed note left in Deb’s car on a seat (and with no handwriting analysis); Deb’s wrist contusion (per the Sheriff and Medical Examiner); the abrasions (per the Medical Examiner); Deb’s body being covered in sand (per the Medical Examiner); no evidence of gunpowder stippling on the surrounding skin (per the Medical Examiner); and Deb’s prior communications, texts, pictures, and videos about what was going on, and more. As stated above, so to speak, the jury will always be out.

It took time before I was able to really think about and deal with Deb’s death, and the circumstances and lack of forthcoming information and cooperation. In due course, a loving and respectful-to-Deb obituary was published – prepared with the help of direct family members, cousins in three states, and close life-long friends (I have provided a copy below). Although there was a small, controlled event which was at Deb’s house in Florida – no Tate family members or relatives or life-long friends were invited – I only heard about it because I had reached out to some of Deb’s more recent Florida friends. Deb’s Florida cousins, although already nearby, weren’t even invited. I asked to attend via the internet, such as via Zoom or otherwise, the text that I received in reply was that my request was denied. For many, many years Deb had also been a flight attendant with Delta – she had lived in many different cities across the United States – Deb knew a lot of people.

Pursuant to Florida law, the decedent’s wishes control the disposition of her ashes. I must ask, why would anyone control and deny, and disrespect a decedent and her wishes for the disposition of her ashes?

In California (and I presume elsewhere including in Florida) if weaker or less satisfactory evidence is offered when it is within the power of the person to produce stronger or more satisfactory evidence (e.g., when evidence is hidden, kept secret, or withheld), the evidence that that person offers is viewed with distrust (Cal. Evid. Code Section 412), and in determining the inferences to draw against the withholding party, the trier of fact may consider, among other things, that party’s failure to explain or to deny the facts and the evidence, or his willful suppression of evidence (Cal. Evid. Code Section 413). I am sure that by the time this is over I will know a lot more about Florida law and evidence, although I already know a fair amount. There can also be spousal financial, and personal safety and safeguarding duties and rights – I know more about those as they pertain to California, including spousal fiduciary duties, but they can also exist in Florida. But this post isn’t a discussion of the law.

This situation cannot be allowed to stand. I now understand some of what Deb had been telling me about her situation. On June 5, 2021, Deb texted “If I am suicided, I didn’t do it.” On June 14, 2021, Deb texted pictures of bruises up and down her arms as there had been a physical fight or altercation.

Here is Deb’s obituary:

Thus, I have retained Florida counsel and petitions have now been filed and served. Onward. You can see a few other prior posts about Deb’s situation on this blog, and future updates will also be posted.

More to follow.

* * * * * * *

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 as an attorney in California only.

A Dearest Deb Update – husband has controlled and kept (or maybe disposed of) all of Deb’s personal and Tate legacy property and Deb’s ashes – written in memory of Deborah (Tate) Trotta

On October 20, 2021, I wrote a post about the tragic death of my sister Deborah (Tate) Trotta. Deb’s body was found on a beach near her house in Hobe Sound, Florida on September 12, 2021. Deb loved walking on the beach. In my October 20, post I got some things correct, I definitely got some things incorrect, and the post was significantly incomplete as at that point I had relatively little information, and in part I had also been provided an incorrect or even misleading for false narrative and information. I have now also reached a point of being able to discuss Deb and her tragic situation while keeping my sadness emotions under better control.

Although for years I have represented clients in extremely contentious and sometimes nasty trust, probate, and elder abuse litigation, Deb’s tragic circumstances both before and after her death are arguably the worst that I have ever seen, and, of course, Deb’s circumstances are also personal to me.

Here is the link to my original October 20, post https://californiaestatetrust.com/2021/10/20/2353/

Since October 20, I now have the sheriff’s report and the medical examiner report and the information contained in both of those reports. I have also heard from and talked with relatives and close long-time (essentially life-long) friends of Deb who I had not talked with for years and years. I also now have had the experience of dealing with husband. It would be more correct to say trying to deal with husband as he stopped communicating with me on September 22, 2021 (just 10 days after Deb’s death) as it was on that day that I requested that he send to me the text that he said Deb sent at 5:37 pm on September 11, which supposedly was Deb’s last text. My request for the text was denied. As was also my request for Deb’s phone or what was on her phone including pictures that she had taken, texts, emails, and a log of calls, etc. I was told that Deb was a private person – Deb wasn’t private, at least not with me and her close relatives and long-time friends. We all have a large number of texts from Deb in which she described her situation and provided pictures and videos.

I did not understand that on September 22, husband had folded shop and had actually stopped communicating – I kept trying to communicate, but I now understand in hindsight that husband had stopped and was done.

I will be writing a number of posts in which I discuss Deb and her situation. Instead of writing long blog posts, I am going to break these discussions into smaller specific topics and discussions. Perhaps as many as 10 or so topics and posts. I am doing this for two reasons: out of memory and respect for Deb and because she would not want her story kept hidden, and possibly as lessons that other people should consider or might learn from.

For example, just as a sampling, I will be discussing the sheriff’s report, the medical examiner report, don’t let someone who you don’t trust control your phone service plan (get our own plan), don’t let anyone who you don’t trust have essentially all of the access to, possession of, and information about the financial accounts and assets, make sure your estate planning documents are in order and that the documents are provided to people who you trust and love, have sufficient access to money and assets yourself, tell other people what is happening and just how bad it is, and have a plan and get out of and leave the situation (just leave) when you become sufficiently uncomfortable with what is happening.

For example, I did not know or understand how insecure Deb was about finances and her long-term financial security – I had told Deb that she should just leave, but I now understand why she had difficulty doing that. Ultimately on the morning of September 11, there was an argument, and Deb finally said that she was divorcing husband – Deb had texted that husband had threatened her with divorce and other things for a time. I now understand that Deb was so hesitant to just leave because she did not have information about, or possession or access to or control over the significant financial assets and accounts, and she was insecure and afraid of her financial risk if she left. She didn’t feel like she could just leave.

I had been working with Deb for her to retain a divorce attorney. This was no secret. Other friends and relatives had been working with Deb on the same. One or two days before September 11, Deb communicated that she was finally ready to go forward. And then there was “the argument” on the morning of September 11. I will have more to say about “the argument” and what was said in a later post – Deb finally said that she was leaving. I have been told that terms of her leaving and what would happen next were dictated to her.

Since Deb’s death husband has controlled all of the information and possessed all of Deb’s personal property and Tate legacy pictures, jewelry, assets and other items, all of the financial accounts and information, Deb’s ashes, and Deb’s poodle Annie. Husband has offered and provided nothing. Although their relationship had become very bad and abusive, and they were getting divorced, husband has held, withheld and refused to provide absolutely everything that was Deb’s including Deb’s ashes. One of our cousins lives 20-30 minutes from Deb’s house – the transfer of personal property and Deb’s ashes would have been extremely easy. Instead, there is complete control and denial.

Husband told me, and other people, that within a month of Deb’s death he himself would bring Deb’s ashes to California to be spread in two Marin and Sonoma County locations in accord with Deb’s wishes. He of course hasn’t done that. The disrespect, and possible desecration or sacrilege, of Deb and her ashes, and disregard for her known wishes has been absolute. We had also offered to arrange and pay for the secure transport of Deb’s ashes to California. I now have a personal understanding of what Deb had communicated in her many texts and during our phone calls, and what relatives and friends have said to me.

This week I retained legal counsel in Florida. In litigation and in my cases some issues and options can fall into a sort of gray zone, but sometimes the options are narrowed and the possible choices become clear. For Deb and in her situation the options have become clear – there are only two choices as nothing has happened and nothing is going to happen – (1) let it go and allow husband to continue control and to keep everything even including Deb’s ashes, personal and Tate legacy things and property, and the assets, or (2) bring legal action to honor Deb and her wishes. For me, seeking to honor Deb and her wishes is the obvious decision.

More to follow.

* * * * * * *

Best to you,

David Tate, Esq. (and inactive CPA)

  • Litigation, Disputes and Trials – Business, Contract/Commercial, Owner, and Founder; and Trust, Estate, Elder/Dependent Abuse, Conservatorships, POA, Real Property, Health and Care, Contentious Administrations, etc.
  • Mediator
  • D&O, Governance, Workplace, Boards, Committees, and Executives, Investigations, Internal Controls and Auditing, Law, Laws and Legislation, Responsibilities and Duties, Rights, Liability, and Damages, 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 as an attorney in California only.

Elder Abuse Restraining Orders To Prevent Isolation And Financial Elder Abuse – California Assembly Bill No. 1243, and White v. Wear

Elder abuse restraining orders are in the California news. See my prior February 7, 2022, post discussing recently enacted California Assembly Bill No. 1243, New law expands legal standing in California to petition for a restraining order to stop and prevent elder and dependent adult isolation abuse at https://wordpress.com/post/californiaestatetrust.com/2385.

The following is a discussion about the March 8, 2022, restraining order decision in White v. Wear (March 8, 2022, E076352) ____ Cal. App. 5th ________, in which the court upheld an elder abuse restraining order that precluded the respondent from making or facilitating any change to the estate plan of her 94-year-old stepfather.

In White v. Wear the Court of Appeal held that the trial court did not abuse its discretion in entering a restraining order against a step child who tried to unduly influence her mother’s elderly husband to change his estate plan to benefit the mother and the step child. California has long had statutes prohibiting elder and dependent adult abuse – however, there still are relatively few court decisions that interpret or apply those statutes. In White v. Wear the Court discussed restraining orders under California Welfare and Institutions Code section 15657.03 under which a court may issue a restraining order to prevent threatened or actual physical and financial abuse of an elder or a dependent adult.

Quoting from White v. Wear, the following is additional overview from the Court’s Opinion:

“The parties to this appeal are no strangers to this court. This case is yet another skirmish in a long series of disagreements about the control of the multi-million-dollar estate[1] of nonagenarian[2] Thomas S. Tedesco.[3] Plaintiff and respondent Laura White is one of Thomas’s three biological daughters and a cotrustee of his living trust. (Conservatorship of Tedesco (Sept. 19, 2019, E070316) [nonpub. opn.] review denied Dec. 18, 2019, S258835 (Conservatorship, E070316).) Defendant and appellant Debra Wear aka Debbie Basara Wear is one of Thomas’s stepdaughters. In 2013, Thomas suffered serious health issues, which resulted in significant cognitive impairment, leaving him susceptible to being unduly influenced by anyone close to him. Gloria Tedesco, Thomas’s second wife, began denying White and her sisters access to their father, causing him to believe that they were stealing from him. Wear assisted Gloria, her mother, in unduly influencing Thomas via contacting, or facilitating access to, attorneys in order to change Thomas’s estate plan to disinherit his biological family in favor of Gloria and her family. Thus, on August 13, 2015, a permanent conservator of Thomas’s estate was appointed.

Despite the existence of the conservatorship, Wear continued to assist Gloria in taking actions to unduly influence Thomas to change his 30-plus-year estate plan. Consequently, upon White’s petition, the superior court issued an elder abuse restraining order (EARO), restraining Wear for three years from, among other things, financially abusing Thomas, contacting him (either directly or indirectly), facilitating any change to his estate plan, coming within 100 yards of him, and possessing any guns, other firearms, and ammunition. (Welf. & Inst. Code,[4] § 15657.03.) Wear contends the EARO is void because (1) the judge was disqualified and (2) he violated due process by substantially amending the allegations in the petition and prohibiting her from possessing firearms and ammunition. She further asserts the petition fails to state a cause of action for elder financial abuse. We agree the court erred in including a firearms and ammunition restriction in the EARO and direct the court to strike it. Otherwise, we affirm.[5]

Slowly, over time, California is adding additional teeth to its elder and dependent adult abuse statutes and cases, and to the toolbox that attorneys and other professionals can use to prevent and remedy elder and dependent adult abuse. If you scroll through this blog you will find other blog posts discussing conservatorships, elder and dependent adult abuse, mental and physical capacity and limitations, undue influence, litigation, mediation, and other related topics.

* * * * * * *

Best to you,

David Tate, Esq. (and inactive CPA)

  • Litigation, Disputes and Trials – Business, Contract/Commercial, Owner, and Founder; and Trust, Estate, Elder/Dependent Abuse, Conservatorships, POA, Real Property, Health and Care, Contentious Administrations, etc.
  • Mediator
  • D&O, Governance, Workplace, Boards, Committees, and Executives, Investigations, Internal Controls and Auditing, Law, Laws and Legislation, Responsibilities and Duties, Rights, Liability, and Damages, 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 as an attorney in California only.

Dave Tate, Esq. – looking for collaborating and growing law firm and attorney relationships, in multiple California locations – trust/estate litigation, business litigation, etc.

Looking for collaborating and growing law firm and attorney relationships. My practice is primarily trust/estate and business litigation, with some mediator services, and some owner, officer, director, board, governance, workplace and other legal areas.

I am looking to connect with a growing, collaborating law firm, and to grow my relationships with collaborating attorneys, and in multiple locations or footprints in northern and southern California. At the risk of being a bit redundant, the collaboration and working or sharing together are an important aspect of this.  

  • It could be a northern California law firm or relationship that is looking for litigation help in northern California and that has a footprint in southern California.
  • It could be a southern California law firm or relationship that is looking for litigation help in northern California.
  • It could be a firm or relationship with multiple northern California locations or footprints.
  • Or it could be a relationship with a single attorney or small firm that is collaborating.

I am available in both northern and southern California. I am also available to help with marketing, mentoring, and management. The relationship needs to be collaborating and growth oriented. A variety of arrangements are possible.

Regards, Dave Tate, Esq. (and inactive CPA)

* * * * * * *

Best to you,

David Tate, Esq. (and inactive CPA)

  • Litigation, Disputes and Trials – Business, Contract/Commercial, Owner, and Founder; and Trust, Estate, Elder/Dependent Abuse, Conservatorships, POA, Real Property, Health and Care, Contentious Administrations, etc.
  • Mediator
  • D&O, Governance, Workplace, Boards, Committees, and Executives, Investigations, Internal Controls and Auditing, Law, Laws and Legislation, Responsibilities and Duties, Rights, Liability, and Damages, 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 as an attorney in California only.

Representing clients with diminished mental capacity – scenarios 1 and 2 – California State Bar Standing Committee ethics Opinion 2021-207

Representing Diminished Capacity Clients. It goes without saying that an attorney might be approached by a prospective client for representation, or might be representing a client, who has or who might have “diminished mental capacity.” These are or can be extremely difficult issues and situations. I put “diminished mental capacity” in quotes to acknowledge the issue; however, it is not a purpose of this post to start discussing exactly what that means or might mean.

Instead, I am writing to provide you with a link to new California State Bar Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 2021-207, and to provide you with scenarios 1 and 2 and their respective evaluations as provided in Opinion NO. 2021-207. I have added yellow highlight to certain wording in scenarios 1 and 2 and their respective evaluations. A link to the Opinion, and scenarios 1 and 2 in pdf are provided below.

A couple of additional quick comments relating to scenarios 1 and 2.

Scenario 1 involves a conservatorship or possible conservatorship scenario. The attorney believes that the client or prospective client has mental capacity to make the decision to oppose the conservatorship, but the attorney believes that the client’s decision in that regard is imprudent.

But what if the attorney believes that the client or prospective client’s decision is imprudent and that the client or prospective client for whatever reason lacks mental capacity to make that decision? Of course, every situation is different and unique in at least some regards. Nevertheless, I believe that in that situation the Opinion would require that the attorney not represent or not continue to represent the prospective client. However, declining to represent, and withdrawing representation also present other issues, and possibly other options, as in part discussed in the Opinion. Additionally, as a prospective conservatee is entitled to legal counsel and is entitled to a jury trial, at least the Court would need to address the issue of the conservatee’s legal representation, and recent case authority states that generally the prospective conservatee is entitled to be represented by the attorney of the prospective conservatee’s choice.

Scenario 2 involves estate planning for a client who the attorney reasonably believes lacks testamentary capacity and that but for that diminished capacity the client would not be making the new testamentary dispositions (and that the client is at substantial risk of being unduly influenced by the client’s younger companion). Scenario 2 states that the attorney is required to provide the client with candid advice concerning the attorney’s conclusions, and that if the client declines to accept the attorney’s advice, the attorney should decline to prepare the will. And, of course, there are other issues, and possible options that will or that might arise. See also, footnote 31, for example, which is discussing pre-engagement inquiry into or perhaps assessment of client capacity and ability to give informed consent v. doing so after engagement – under either situation, however, it appears that the attorney should not prepare the will (or trust).

It might also be interesting to compare duties and responsibilities of other professionals who sometimes are involved in estate planning or financial advising, such as CPAs, and financial, investment, and wealth advisors and professionals.

Here is a link to Opinion 2021-207 https://www.calbar.ca.gov/Portals/0/documents/publicComment/2021/COPRAC-Formal-Opinion-No.2021-207.pdf

And below are Scenarios 1 and 2, and their respective evaluations, as copied from Opinion 2021-207, with my yellow highlights added.

* * * * * * *

Best to you,

David Tate, Esq. (and inactive CPA)

  • Litigation, Disputes and Trials – Business, Contract/Commercial, Owner, and Founder; and Trust, Estate, Elder/Dependent Abuse, Conservatorships, POA, Real Property, Health and Care, Contentious Administrations, etc.
  • Mediator
  • D&O, Governance, Workplace, Boards, Committees, and Executives, Investigations, Internal Controls and Auditing, Law, Laws and Legislation, Responsibilities and Duties, Rights, Liability, and Damages, 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 as an attorney in California only.

Proposed California CARE Court – sounds close to a conservatorship

I have attached below a clip from the Governor’s fact sheet discussing the new proposed California CARE Court. I added the yellow. These are difficult situations and issues. Any proposed improvement is welcome. I note, however, that when the Legislature works on this legislation they consider that this proposal sounds very close to a conservatorship or a limited conservatorship. It would be a State action (legislation and Court) that limits or restricts a person’s freedoms and personal decision making, and also that perhaps results in forced or ordered medications and living conditions.

Several California cases have addressed some of the issues and rights in conservatorship cases – the proposed conservatee is entitled to have legal counsel, and legal counsel of the proposed conservatee’s choice, and a jury trial. Additionally, the medical diagnosis and the name of the medical diagnosis are not determinative of whether or not the conservatorship will be granted or the powers and restrictions that are ordered – instead, the questions pertain to the proposed conservatee’s actual abilities and limitations, and need, or not, for help. Any conservatorship ordered must be the least restrictive possible, and the alternatives must be considered. The conservatorship also must be reviewed annually or more often. See also my post about the recent enactment of Assembly Bill No. 1194 including burden of proof and other issues https://wordpress.com/post/californiaestatetrust.com/2367

The following is the clip from the Governor’s fact sheet discussing the new proposed California CARE Court.

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Best to you,

David Tate, Esq. (and inactive CPA)

  • Litigation, Disputes and Trials – Business, Contract/Commercial, Owner, and Founder; and Trust, Estate, Elder/Dependent Abuse, Conservatorships, POA, Real Property, Health and Care, Contentious Administrations, etc.
  • Mediator
  • D&O, Governance, Workplace, Boards, Committees, and Executives, Investigations, Internal Controls and Auditing, Law, Laws and Legislation, Responsibilities and Duties, Rights, Liability, and Damages, 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 as an attorney in California only.

Focus on Domestic Violence and Abuse, Animal Cruelty as Domestic Violence, and Cluster B Personality Disorders – Controlling and Threatening Personalities, Bullies, Liars, Narcissists . . .

This past week the Washington State Supreme Court held that animal cruelty can constitute domestic violence, see animal cruelty can qualify as domestic violence, Washington State Supreme Court: https://www.abajournal.com/news/article/animal-cruelty-can-qualify-as-domestic-violence-state-supreme-court-says

Seven types of abuse (click on the below link for detail):

Physical Abuse (including intimidation)

Mental Abuse (including anxiety, threats, and lying)

Verbal Abuse (including intimidation, browbeating, blame, and personal attacks)

Emotional Abuse (including insecurity, anger/fear, duress, coercion, and hostility)

Financial Abuse (including secrecy, forbidden access, control, possession, and dependency)

Sexual Abuse

Spiritual Abuse

These are starting points for discussion.

https://growwithchristine.com/the-7-main-types-of-abuse/

Cluster B personality disorders (click on the below link for detail):

Antisocial personality disorders include but are not limited to:

  • manipulative or deceitful behavior for personal gain, such as lying or assuming false identities
  • repeated antisocial actions, such as harassment or theft
  • impulsive behavior, which might lead to frequent job or relationship changes
  • irresponsible actions, which can affect occupational, social, and financial aspects of life, for example
  • disregard for personal safety or the safety of others, such as speeding, driving while intoxicated, or neglecting a child
  • irritable or aggressive behavior, which can include physical fights

https://www.webmd.com/mental-health/what-are-cluster-b-personality-disorders

In memory of my dearest sister Deb – it has been 5+ months, and we are still working through this, but a lot more is known – Deb died on September 12, 2021 (or was found dead on that date) – below is a link to my October 20, 2021, post discussing what was known at that time. A lot has happened, and a lot more is known since that time – for example, although husband would not provide me with a copy of Deb’s supposed note, the Sheriff’s report which I now have contains the wording (but not a copy – just the wording – thus, the supposed note cannot be authenticated – and I will be posting the wording – the supposed note isn’t the narrative that it was represented to be), I also have a copy of the medical examiner’s report (and toxicology report), I know the narrative that husband told the Sheriff (pursuant to the Sheriff’s report), I have spoken with several of Deb’s life-long friends, family and relatives, husband stopped responding to me on September 22 (just 10 days after Deb’s body was found, and when I requested that he provide me with a copy of what he told me was Deb’s last text to him at 5:37 pm on September 11), and there have been at least several other important events and developments since Deb’s body was found. Thus, here is a link to my October 20 post, but the post will be updated with additional information: https://wordpress.com/post/californiaestatetrust.com/2353

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Best to you,

David Tate, Esq. (and inactive CPA)

  • Litigation, Disputes and Trials – Business, Contract/Commercial, Owner, and Founder; and Trust, Estate, Elder/Dependent Abuse, Conservatorships, POA, Real Property, Health and Care, Contentious Administrations, etc.
  • Mediator
  • D&O, Governance, Workplace, Boards, Committees, and Executives, Investigations, Internal Controls and Auditing, Law, Laws and Legislation, Responsibilities and Duties, Rights, Liability, and Damages, 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 as an attorney in California only.

New law expands legal standing in California to petition for a restraining order to stop and prevent elder and dependent adult isolation abuse

California Assembly Bill No. 1243, signed by Governor Newsom  on September 23, 2021, in relevant part expands the definition of an “interested party” who has legal standing to petition the court for a restraining order to enjoin (i.e., stop and prevent) elder and dependent adult isolation abuse. Assembly Bill No. 1243 is effective beginning January 1, 2023.

For the purpose of seeking the restraining order to enjoin (i.e., to stop and prevent) the isolation, pursuant to Assembly Bill No. 1243, beginning January 1, 2023 the term interested party will be expanded to include the following: “Interested party” means an individual with a personal, preexisting relationship with the elder or dependent adult. Thus, for example, if the requisite factual circumstances exist, friends and family members will now (beginning January 1, 2023) have legal standing to file a petition requesting the court to issue an order enjoining the wrongdoer from isolating the elder or dependent adult victim.

Elder and dependent adult cases present challenging legal issues relating to proof and remedies. And the elder or dependent adult victim can feel torn and pulled in different emotional and relationship directions. For example, situations are common where a wrongdoer is trying to unduly influence or take financial advantage of and to be alone with and isolate the elder or dependent adult victim so the wrongdoer can more easily badmouth others or take or steal or get the victim to change her or his estate planning documents, while good family members and friends are also trying to protect the elder or dependent adult and to keep the wrongdoer away. I have seen in these situations a wrongdoer who tries to use the law to help the wrongdoer to be able to continue to see and be with the elder or dependent adult victim including petitioning the court for an order to prevent the good people from keeping the wrongdoer away. And the victim is torn because she or he mistakenly believes the wrongdoer is actually a benevolent friend or family member.

Although California law does tend to extend legal standing in elder and dependent adult abuse cases more broadly than the laws in some other states (such as Florida, for example, where it is still too limited), even in California legal standing needs to be expanded to the greatest extent possible so that wrongdoers aren’t able to hide behind the law as a shield, and Assembly Bill No. 1243 will be helpful in that regard (beginning January 1, 2023). But, of course, this new provision would be even more helpful if it is made effective immediately.  

The following are select relevant wording provisions from Assembly Bill No. 1243:

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1.

(a) It is the intent of the Legislature to prevent domestic violence, including elder and dependent adult abuse, and particularly to preserve the physical and mental health of vulnerable Californians.

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(b) The Legislature finds and declares that one way perpetrators of domestic violence, including elder and dependent adult abuse, are able to continue with their abuse is by preventing trusted friends and family members from seeing or contacting a vulnerable adult. As the vulnerable adult is isolated, it becomes more and more difficult for others to identify signs of abuse. The isolation also allows the perpetrator to potentially take over finances and hide any indications that they are doing so.

            * * * * *

A court order is not required for an elder or dependent adult to engage in visitation from anyone from whom the elder or dependent adult desires visitation.

(c) The Legislature further finds and declares that it is extremely important that the health and well-being of a vulnerable adult be front and center in any decision affecting them.

(d) It is the intent of the Legislature that the changes made by this act ensure that vulnerable adults are able to protect and preserve their physical and mental health, by making certain that these vulnerable adults are able to maintain important familial and social connections that they desire, and that a perpetrator does not cut off those relationships in an attempt to take advantage of the vulnerable adult.

            * * * * *

SEC. 3.

Section 15657.03 is added to the Welfare and Institutions Code, to read:

15657.03.

 (a) (1) An elder or dependent adult who has suffered abuse, as defined in Section 15610.07, may seek protective orders as provided in this section.

(2) (A) A petition may be brought on behalf of an abused elder or dependent adult by a conservator or a trustee of the elder or dependent adult, an attorney-in-fact of an elder or dependent adult who acts within the authority of a power of attorney, a person appointed as a guardian ad litem for the elder or dependent adult, or other person legally authorized to seek the relief.

(B) (i) Subject to clause (ii), if the petition alleges abuse of an elder or dependent adult in the form of isolation, the term “other person legally authorized to seek the relief” as used in subparagraph (A) includes an interested party as defined in paragraph (3) of subdivision (b) [DTate: see below].

(ii) Clause (i) shall apply only for the purpose of seeking an order enjoining isolation under subparagraph (E) of paragraph (5) of subdivision (b).

            * * * * *

(b) For purposes of this section:

(1) “Abuse” has the meaning set forth in Section 15610.07.

(2) “Conservator” means the legally appointed conservator of the person or estate of the petitioner, or both.

(3) “Interested party” means an individual with a personal, preexisting relationship with the elder or dependent adult. A preexisting relationship may be shown by a description of past involvement with the elder or dependent adult, time spent together, and any other proof that the individual spent time with the elder or dependent adult.

            * * * * *

(5)(E) (i) After notice and a hearing only, an order enjoining a party from abusing an elder or dependent adult by isolating them. An order may be issued under this subparagraph to restrain the respondent for the purpose of preventing a recurrence of isolation if the court finds by a preponderance of the evidence, to the satisfaction of the court, that the following requirements are met:

(I) The respondent’s past act or acts of isolation of the elder or dependent adult repeatedly prevented contact with the interested party.

(II) The elder or dependent adult expressly desires contact with the interested party. A court shall use all means at its disposal to determine whether the elder or dependent adult desires contact with the person and has the capacity to consent to that contact.

(III) The respondent’s isolation of the elder or dependent adult from the interested party was not in response to an actual or threatened abuse of the elder or dependent adult by the interested party or the elder or dependent adult’s desire not to have contact with the interested party.

(ii) The order may specify the actions to be enjoined, including enjoining the respondent from preventing the interested party from in-person or remote online visits with the elder or dependent adult, including telephone and online contact.

(iii) An order enjoining isolation under this section is not required for an elder or dependent adult to visit with anyone with whom the elder or dependent adult desires visitation.

(iv) An order enjoining isolation shall not be issued under this section if the elder or dependent adult resides in a long-term care facility, as defined in Section 9701, or a residential facility, as defined in Section 1502 of the Health and Safety Code. In those cases, action may be taken under appropriate federal law.

(v) An order enjoining isolation shall not be issued under this section if the elder or dependent adult is a patient of a health facility as defined in subdivision (a), (b), or (f) of Section 1250 of the Health and Safety Code. In those cases, action may be taken under other appropriate state or federal law.

            * * * * *

* * * * * * *

Best to you,

David Tate, Esq. (and inactive CPA)

  • Litigation and Disputes – Business, Contract, Owner, and Founder; and Trust, Estate, Elder/Dependent Abuse, Conservatorships, POA, Real Property, Administrations, etc.
  • Mediator
  • D&O, Governance, Workplace, Boards, Committees, and Executives, Investigations, Internal Controls and Auditing, 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.

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 in California only.

⁃  Litigation, disputes and trials (primarily in the following areas):

Commercial and business, and business owner, investor, shareholder, D&O, officer, director, governance, accountings, lost income, profits and royalties, and business-related;

Trust, estate, elder abuse, POA, conservatorship, contentious administrations, ethics, etc.;

Workplace and employment, and real property; and

Various other cases and areas (environmental contamination, accidents, insurance, etc.).

⁃  Boards and committees including audit and governance committees, investigations, independence, conflicts, governance, diligence, risk management, ESG, etc. – representation and advising re conduct, authority, duties and responsibilities, rights, and liability.

⁃  Services as a mediator, and dispute resolution.

COVID restricting nursing home visits again – must ensure residents, family and friends have communications and access

COVID deaths and cases are rising again at US nursing homes https://news.yahoo.com/covid-deaths-cases-rising-again-131807076.html

Please also consider subscribing to ihaveadifferentview.com

If you subscribe to this blog, please also consider subscribing to a new blog that I am starting http://ihaveadifferentview.com. The new blog (I HAVE A DIFFERENT VIEW) is a bit of a different approach – I will start also posting on the new blog posts that I make to this blog – if the new blog is sufficiently successful, eventually I hope to move all of my posts to just the new blog. The new blog will also present an expanded subject matter.

Thanks and best to you. Dave Tate