The WordPress.com stats helper monkeys prepared a 2012 annual report for this blog.

Here’s an excerpt:

600 people reached the top of Mt. Everest in 2012. This blog got about 7,100 views in 2012. If every person who reached the top of Mt. Everest viewed this blog, it would have taken 12 years to get that many views.

Click here to see the complete report.

Estate of Giraldin (California Supreme Court, December 20, 2012, Case No. S197694)

Estate of Giraldin is an important case which broadens the ability of beneficiaries to sue trustees for breach of trustee duty with respect to a revocable trust, and should be read carefully for the reasoning of the Court as that reasoning might also be applicable in other different situations.

Trustor created the William A. Giraldin Trust in February 2002.  The trust was revocable.  William was entitled to the benefits of the trust during his lifetime.  William appointed one of his sons, Timothy, trustee.  Timothy served as trustee from 2002 until William’s death in 2005 and thereafter.  Following William’s death Mary his wife was entitled to the benefits of the trust during her lifetime.  Following Mary’s death nine children would share equally in the remainder.  Following William’s death four of William’s children sued Timothy for his breaches of duty as trustee during the time that William was alive and the trust was revocable.  The primary issue on appeal was whether the four beneficiaries had standing to sue Timothy for alleged breach of trustee duty that occurred while William was alive and the trust was revocable.

The California Supreme Court held that the four beneficiaries have standing to sue the trustee for his alleged breaches of trustee duty that the trustee owed to William during William’s lifetime.  The opinion offers a detailed discussion about beneficiary standing, and appears to hold that a beneficiary’s standing is broader than might have been thought.  For example, it could be argued that the beneficiaries lacked standing because they were only contingent beneficiaries of the revocable trust with no right or entitlement to the benefits of the trust or of an accounting at the time that the alleged breaches occurred.  It also could be argued that the beneficiaries lacked standing post William’s death and that only a representative of William’s estate held that standing.  However, the Court’s decision could be read to hold that a trust beneficiary including a contingent beneficiary may have standing to bring suit with respect to matters involving the administration of the trust unless the Probate Code or case law specifically holds otherwise.  Accordingly, the holding in Estate of Giraldin his important not only for the facts of the case, but potentially also for other trust, trustee and non-trust and trustee Probate Code related situations.

Thorpe v. Reed (California Court of Appeal, Sixth District, Case No. H037330, December 13, 2012)

Holding that where the trust stated:

“Trustee shall be entitled to receive reasonable compensation for services in the administration of this Trust. A Special Trustee and any successor Trustee shall not be entitled to receive reasonable compensation for services in the administration of this Trust,”

the Court-appointed successor trustee was not entitled to compensation. The terms of the trust prevail. The successor trustee had a choice to accept the appointment as trustee or not. He elected to accept appointment, at no compensation pursuant to the terms of the trust.

Thomas Kinkade estate probate hearing continued to December 24, with Judge Cain in Santa Clara County Superior Court.  Click here for article.  Kinkade died April 6, 2012.  The case involves disputes over will and codicil documents including alleged holographic will documents – in other words, including for example, issues relating to Kinkade’s intent as to who would inherit, the validity of the purported will and codicil documents including the facts and circumstances relating to preparation, handwriting, and possibly computer forensics, possibly mental capacity issues, fraud and undue influence including the statutory prohibitions against inheritance, possibly interpretation of the various documents, possibly the new California tort intentional interference with inheritance, the shifting burdens of proof, and the various presumptions that might apply, in addition to others.

Why older adults become fraud victims more often – new study by UCLA, here’s the link, Click Here. 

See also my other blog (http://davidtate.wordpress.com)  as this is a possible risk management issue for estate planning attorneys, courts, banks and other financial institutions, and probably others that don’t come to mind at this time.

Dave Tate

I have been in trial for three weeks in a will contest case, plus pre-trial preparation.  The trial evidence will complete this coming week.  I will be returning to blogging.  Thanks.  Dave Tate

A survival cause in a trust does not require the trustee to administer the trust in a manner different from required acceptable reasonable prudent trustee/trust practices.  The trustee is not required to administer the trust as quickly as possible, but only without unreasonable delay.  Following Trustor’s death, a disinherited beneficiary challenged the trust amendment that disinherited her.  However, the disinherited beneficiary also died before resolution of the contest and before any trust distributions were made.  The executor of the disinherited beneficiary argued that the trustee delayed making distributions.  The Court also held that the disinherited beneficiary’s executor had the burden of establishing the alleged unreasonable delay, and that he failed to do so.    Edwards v. Gillis (California Court of Appeal, Fourth Appellate District, Case No. E053542)

Dave Tate (San Francisco)

See also, Buddy speaks about board responsibilities and business judgment,

In Shuts v. Covenant Holdco LLC (California Court of Appeal, Case No. A132805, August 15, 2012) the Court held that a skilled nursing home resident has a private right to bring an action for violation of the Patients’ Rights statute, also referred to as Patient Bill of Rights, and that in appropriate circumstances State enacted regulations relating to the right that is at issue can be cited as the standard of care and can be helpful to determine the enforceable right and its alleged violation, in this case relating to required minimum staffing levels.

The Resident brought suit pursuant to California Health & Safety Code Section 1430(b) and related violation of California Code of Regulations Title 22 Section 72527.  Defendant in part argued that there was no private right of action, and that Section 72527 could only be enforced by the State of California.  The Court held, not only is there a private right of action under Section 1430(b) (which the statute itself so states), but the resident can also allege a related violation of a California regulation (which the statute itself also states).  In fact, in pertinent part Section 1430(b) states “A current or former resident or patient of a skilled nursing facility, as defined in subdivision (c) of Section 1250, or intermediate care facility, as defined in subdivision (d) of Section 1250, may bring a civil action against the licensee of a facility who violates any rights of the resident or patient as set forth in the Patients Bill of Rights in Section 72527 of Title 22 of the California Code of Regulations, or any other right provided for by federal or state law or regulation.”  Copies of California Health & Safety Code Section 1430 and California Code of Regulations Title 22 Section 72527 are copied below.

Dave Tate, Esq. (San Francisco)

California Health & Safety Code Section 1430

1430.  (a) Except where the state department has taken action and the violations have been corrected to its satisfaction, a licensee who commits a class “A” or “B” violation may be enjoined from permitting the violation to continue or may be sued for civil damages within a court of competent jurisdiction. An action for injunction or civil damages, or both, may be prosecuted by the Attorney General in the name of the people of the State of California upon his or her own complaint or upon the complaint of a board, officer, person, corporation, or association, or by a person acting for the interests of itself, its members, or the general public. The amount of civil damages that may be recovered in an action brought pursuant to this section may not exceed the maximum amount of civil penalties that could be assessed on account of the violation or violations.

(b) A current or former resident or patient of a skilled nursing facility, as defined in subdivision (c) of Section 1250, or intermediate care facility, as defined in subdivision (d) of Section 1250, may bring a civil action against the licensee of a facility who violates any rights of the resident or patient as set forth in the Patients Bill of Rights in Section 72527 of Title 22 of the California Code of Regulations, or any other right provided for by federal or state law or regulation. The suit shall be brought in a court of competent jurisdiction. The licensee shall be liable for the acts of the licensee’s employees. The licensee shall be liable for up to five hundred dollars ($500), and for costs and attorney fees, and may be enjoined from permitting the violation to continue. An agreement by a resident or patient of a skilled nursing facility or intermediate care facility to waive his or her rights to sue pursuant to this subdivision shall be void as contrary to public policy.

(c) The remedies specified in this section shall be in addition to any other remedy provided by law.

California Code of Regulations Title 22 Section 72527. Patients’ Rights.

(a) Patients have the rights enumerated in this section and the facility shall ensure that these rights are not violated. The facility shall establish and implement written policies and procedures which include these rights and shall make a copy of these policies available to the patient and to any representative of the patient. The policies shall be accessible to the public upon request. Patients shall have the right:

(1) To be fully informed, as evidenced by the patient’s written acknowledgement prior to or at the time of admission and during stay, of these rights and of all rules and regulations governing patient conduct.

(2) To be fully informed, prior to or at the time of admission and during stay, of services available in the facility and of related charges, including any charges for services not covered by the facility’s basic per diem rate or not covered under Titles XVIII or XIX of the Social Security Act.

(3) To be fully informed by a physician of his or her total health status and to be afforded the opportunity to participate on an immediate and ongoing basis in the total plan of care including the identification of medical, nursing and psychosocial needs and the planning of related services.

(4) To consent to or to refuse any treatment or procedure or participation in experimental research.

(5) To receive all information that is material to an individual patient’s decision concerning whether to accept or refuse any proposed treatment or procedure. The disclosure of material information for administration of psychotherapeutic drugs or physical restraints or the prolonged use of a device that may lead to the inability to regain use of a normal bodily function shall include the disclosure of information listed in Section 72528(b).

(6) To be transferred or discharged only for medical reasons, or the patient’s welfare or that of other patients or for nonpayment for his or her stay and to be given reasonable advance notice to ensure orderly transfer or discharge. Such actions shall be documented in the patient’s health record.

(7) To be encouraged and assisted throughout the period of stay to exercise rights as a patient and as a citizen, and to this end to voice grievances and recommend changes in policies and services to facility staff and/or outside representatives of the patient’s choice, free from restraint, interference, coercion, discrimination or reprisal.

(8) To manage personal financial affairs, or to be given at least a quarterly accounting of financial transactions made on the patient’s behalf should the facility accept written delegation of this responsibility subject to the provisions of Section 72529.

(9) To be free from mental and physical abuse.

(10) To be assured confidential treatment of financial and health records and to approve or refuse their release, except as authorized by law.

(11) To be treated with consideration, respect and full recognition of dignity and individuality, including privacy in treatment and in care of personal needs.

(12) Not to be required to perform services for the facility that are not included for therapeutic purposes in the patient’s plan of care.

(13) To associate and communicate privately with persons of the patient’s choice, and to send and receive personal mail unopened.

(14) To meet with others and participate in activities of social, religious and community groups.

(15) To retain and use personal clothing and possessions as space permits, unless to do so would infringe upon the health, safety or rights of the patient or other patients.

(16) If married, to be assured privacy for visits by the patient’s spouse and if both are patients in the facility, to be permitted to share a room.

(17) To have daily visiting hours established.

(18) To have visits from members of the clergy at any time at the request of the patient or the patient’s representative.

(19) To have visits from persons of the patient’s choosing at any time if the patient is critically ill, unless medically contraindicated.

(20) To be allowed privacy for visits with family, friends, clergy, social workers or for professional or business purposes.

(21) To have reasonable access to telephones and to make and receive confidential calls.

(22) To be free from any requirement to purchase drugs or rent or purchase medical supplies or equipment from any particular source in accordance with the provisions of Section 1320 of the Health and Safety Code.

(23) To be free from psychotherapeutic drugs and physical restraints used for the purpose of patient discipline or staff convenience and to be free from psychotherapeutic drugs used as a chemical restraint as defined in Section 72018, except in an emergency which threatens to bring immediate injury to the patient or others. If a chemical restraint is administered during an emergency, such medication shall be only that which is required to treat the emergency condition and shall be provided in ways that are least restrictive of the personal liberty of the patient and used only for a specified and limited period of time.

(24) Other rights as specified in Health and Safety Code, Section 1599.1.

(25) Other rights as specified in Welfare and Institutions Code, Sections 5325 and 5325.1, for persons admitted for psychiatric evaluations or treatment.

(26) Other rights as specified in Welfare and Institutions Code Sections 4502, 4503 and 4505 for patients who are developmentally disabled as defined in Section 4512 of the Welfare and Institutions Code.

(b) A patient’s rights, as set forth above, may only be denied or limited if such denial or limitation is otherwise authorized by law. Reasons for denial or limitation of such rights shall be documented in the patient’s health record.

(c) If a patient lacks the ability to understand these rights and the nature and consequences of proposed treatment, the patient’s representative shall have the rights specified in this section to the extent the right may devolve to another, unless the representative’s authority is otherwise limited. The patient’s incapacity shall be determined by a court in accordance with state law or by the patient’s physician unless the physician’s determination is disputed by the patient or patient’s representative.

(d) Persons who may act as the patient’s representative include a conservator, as authorized by Parts 3 and 4 of Division 4 of the Probate Code (commencing with Section 1800), a person designated as attorney in fact in the patient’s valid durable power of attorney for health care, patient’s next of kin, other appropriate surrogate decisionmaker designated consistent with statutory and case law, a person appointed by a court authorizing treatment pursuant to Part 7 (commencing with Section 3200) of Division 4 of the Probate Code, or, if the patient is a minor, a person lawfully authorized to represent the minor.

(e) Patients’ rights policies and procedures established under this section concerning consent, informed consent and refusal of treatments or procedures shall include, but not be limited to the following:

(1) How the facility will verify that informed consent was obtained or a treatment or procedure was refused pertaining to the administration of psychotherapeutic drugs or physical restraints or the prolonged use of a device that may lead to the inability of the patient to regain the use of a normal bodily function.

(2) How the facility, in consultation with the patient’s physician, will identify consistent with current statutory case law, who may serve as a patient’s representative when an incapacitated patient has no conservator or attorney in fact under a valid Durable Power of Attorney for Health Care.

* * * * *

From the Aging Parents blog, a fun story about Alice’s dating, Click Here.

Dave Tate, Esq. (San Francisco)