Links to interesting resource discussions about susceptibility to estate planning undue influence . . .

From Martin Blinder, M.D., Click Here

From Mary Joy Quinn, Click Here

From Duke Journal of Comparative & International Law, Click Here

From American Bar, Click Here

Know anyone with these personality traits – antisocial personality disorder and the perpetrator of elder abuse . . .

The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, DSM IV-TR, generally defines antisocial personality disorder in a person who is 18 years old or older as:

A pervasive pattern of disregard for and violation of the rights of others, as indicated by three or more of the following:

1. Failure to conform to social norms with respect to lawful behaviors as indicated by repeatedly performing acts that are grounds for arrest.

2. Deception, as indicated by repeatedly lying, use of aliases, or conning others for personal profit or pleasure.

3. Impulsiveness or failure to plan ahead.

4. Irritability and aggressiveness, as indicated by repeated physical fights or assaults.

5. Reckless disregard for safety of self or others.

6. Consistent irresponsibility, as indicated by repeated failure to sustain consistent work behavior or honor financial obligations.

7. Lack of remorse, as indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another.

The World Health Organization’s ICD-10 generally defines Dissocial Personality Disorder similar to antisocial personality disorder which is characterized by at least three of the following:

1. Callous unconcern for the feelings of others and lack of the capacity for empathy.

2. Gross and persistent attitude of irresponsibility and disregard for social norms, rules, and obligations.

3. Incapacity to maintain enduring relationships.

4. Very low tolerance to frustration and a low threshold for discharge of aggression, including violence.

5. Incapacity to experience guilt and to profit from experience, particularly punishment.

6. Markedly prone to blame others or to offer plausible rationalizations for the behavior bringing the subject into conflict.

7. Persistent irritability.

Link to a Forbes article, The $4M Ripoff: Is Anyone Paying Attention, re a California caregiver financial abuse case, Click Here.

The following is the text of California Code of Regulations Title 22, Section 72315, relating to required nursing home resident care nursing services.  These are minimum general requirements, more specific requirements exist in other California regulations.  There are also federal requirements.  Care must also be provided for the special or particular needs of each resident.

(a) No patient shall be admitted or accepted for care by a skilled nursing facility except on the order of a physician.

(b) Each patient shall be treated as individual with dignity and respect and shall not be subjected to verbal or physical abuse of any kind.

(c) Each patient, upon admission, shall be given orientation to the skilled nursing facility and the facility’s services and staff.

(d) Each patient shall be provided care which shows evidence of good personal hygiene, including care of the skin, shampooing and grooming of hair, oral hygiene, shaving or beard trimming, cleaning and cutting of fingernails and toenails. The patient shall be free of offensive odors.

(e) Each patient shall be encouraged and/or assisted to achieve and maintain the highest level of self-care and independence. Every effort shall be made to keep patients active, and out of bed for reasonable periods of time, except when contraindicated by orders of a licensed health care practitioner acting within the scope of his or her professional licensure.

(f) Each patient shall be given care to prevent formation and progression of decubiti, contractures and deformities. Such care shall include:

(1) Changing position of bedfast and chairfast patients with preventive skin care in accordance with the needs of the patient.

(2) Encouraging, assisting and training in self-care and activities of daily living.

(3) Maintaining proper body alignment and joint movement to prevent contractures and deformities.

(4) Using pressure-reducing devices where indicated.

(5) Providing care to maintain clean, dry skin free from feces and urine.

(6) Changing of linens and other items in contact with the patient, as necessary, to maintain a clean, dry skin free from feces and urine.

(7) Carrying out of physician’s orders for treatment of decubitus ulcers. The facility shall notify the physician, when a decubitus ulcer first occurs, as well as when treatment is not effective, and shall document such notification as required in Section 72311(b).

(g) Each patient requiring help in eating shall be provided with assistance when served, and shall be provided with training or adaptive equipment in accordance with identified needs, based upon patient assessment, to encourage independence in eating.

(h) Each patient shall be provided with good nutrition and with necessary fluids for hydration.

(i) Measures shall be implemented to prevent and reduce incontinence for each patient and shall include:

(1) Written assessment by a licensed nurse to determine the patient’s ability to participate in a bowel and/or bladder management program. This is to be initiated within two weeks after admission of an incontinent patient.

(2) An individualized plan, in addition to the patient care plan, for each patient in a bowel and/or bladder management program.

(3) A weekly written evaluation in the progress notes by a licensed nurse of the patient’s performance in the bowel and/or bladder management program.

(j) Fluid intake and output shall be recorded for each patient as follows:

(1) If ordered by the physician.

(2) For each patient with an indwelling catheter:

(A) Intake and output records shall be evaluated at least weekly and each evaluation shall be included in the licensed nurses’ progress notes.

(B) After 30 days the patient shall be reevaluated by the licensed nurse to determine further need for the recording of intake and output.

(k) The weight and length of each patient shall be taken and recorded in the patient’s health record upon admission, and the weight shall be taken and recorded once a month thereafter.

(l) Each patient shall be provided visual privacy during treatments and personal care.

(m) Patient call signals shall be answered promptly.

Financial abuse continues to be on the rise.  The following is California’s Civil Jury Instruction 3100 for the essential factual elements that are necessary to establish financial abuse.  I have cleaned up the jury instruction somewhat so that it is easier to read for this post.

You will notice that the jury instruction is fairly broad and generally worded so that it can apply in a variety of cases.  In every case, consider the facts that you and the other side will need to prove or disprove to establish the case and/or defenses, and the evidence that exists, the evidence that you believe exists but that you don’t have and that you expect or hope to obtain, and the evidence that you don’t believe exists or that you don’t believe you will be able to obtain.

Note.  The designation defendant/perpetrator as indicated below can be an individual or in appropriate circumstances the employer of the defendant/perpetrator, and the plaintiff/victim can be an individual or in appropriate circumstances a decedent victim or the representative of the victim.

The jury instruction:

[Plaintiff/victim] claims that [defendant/perpetrator] violated the Elder Abuse and Dependent Adult Civil Protection Act by taking financial advantage of [him/her].  To establish this claim, [plaintiff/victim] must prove that all of the following are more likely to be true than not true:

1. That [defendant/perpetrator] took/hid/appropriated/obtained or retained [plaintiff/victim]’s property or assisted in taking/hiding/appropriating/obtaining or retaining [plaintiff/victim]’s property;

2. That [plaintiff/victim] was 65 years of age or older or a dependent adult at the time of the conduct;

3. That [defendant/perpetrator] took/hid/appropriated/obtained or retained/assisted in taking/hiding/appropriating/obtaining or retaining the property for a wrongful use or with the intent to defraud or by undue influence;

4. That [plaintiff/victim] was harmed; and

5. That [defendant/perpetrator]’s conduct was a substantial factor in causing [plaintiff/victim]’s harm.

One way [plaintiff/victim] can prove that [defendant/perpetrator] took/hid/appropriated/obtained or retained the property for a wrongful use is by proving that [defendant/perpetrator] knew or should have known that [his/her] conduct was likely to be harmful to [plaintiff/victim].

[Defendant/perpetrator] took/hid/appropriated/obtained or retained the property if [plaintiff/victim] was deprived of the property by an agreement, gift, will, or trust or [specify other testamentary instrument] regardless of whether the property was held by [plaintiff/victim] or by [his/her] representative.

An Adult Day Health Care bill was vetoed by California Governor Brown.  The following is a link to an article in the San Francisco Chronicle, Click Here.  Currently funding for the care centers will expire on December 1.  There are approximately 300 existing centers that offer 37,000 adults  medical care, physical therapy, exercise, counseling, socialization and other  support.

California Probate Code section 16061 provides:

“16061.  Except as provided in Section 16069, on reasonable request
by a beneficiary, the trustee shall report to the beneficiary by
providing requested information to the beneficiary relating to the
administration of the trust relevant to the beneficiary’s interest.”

The section 16061 entitlement is different from and in addition to a beneficiary’s right to an accounting.  Only a few cases interpret the scope and intent of section 16061; however, clearly the section is broadly worded, requiring that the trustee provide the beneficiary with information “relating to the administration of the trust relevant to the beneficiary’s interest.”  Although the section 16061 entitlement should not be permitted to allow a beneficiary to pester a trustee or to micromanage the trust, it is reasonable that a beneficiary would be concerned about significant events that affect his or her trust interests on an ongoing basis, and would want certain information about those interests regularly and more often than would be provided by an accounting.  The issue becomes, what is a reasonable request–how often, what information, and how significant would the requested information be to the reasonable beneficiary?  And, from the trustee’s perspective, generally I lean toward providing a beneficiary with additional information to better avoid disputes, or to at least flush them out earlier with the hope that they can be avoided entirely, or resolved earlier.  Events and actions or proposed actions will eventually come to light anyway.

Which raises another topic area.  A trustee is permitted to provide the beneficiary with a statutory notice of intent to take a particular action, thus triggering the beneficiary’s obligation to object to the proposed action, or waive the right to object after the expiration of the statutory notice period.  As section 16061 entitles a beneficiary to request the trustee to provide the beneficiary with information “relating to the administration of the trust relevant to the beneficiary’s interest,” a beneficiary might request the trustee to provide information about proposed significant events or actions before they occur.  For example, proposed encumbrances and loans, property sales, significant expenditures, transfers and distributions, out-of-ordinary events and transactions, etc., as defined “significant.”

* * * * *

No Deduction for $1.2m Claim for Services by Tax Attorney Son for Infirm Parents (Tax Prof Blog), part of the reason might be because there were no records of time spent on legal services provided, only estimates, CLICK HERE.

Link to a WFJ article 25 documents you need before you die, CLICK HERE

I came across this link to Independent Sector’s 33 principles for good governance and ethical practice, CLICK HERE.  You do have to register, but you do not have to become a member.  I have provided below the areas that the 33 principles cover.  As you might be aware, Independent Sector is a leader in the charitable community.  The principles provide good materials for thought and discussion.

“Principle 1: Laws and Regulations
Principle 2: Code of Ethics
Principle 3: Conflicts of Interest
Principle 4: “Whistleblower” Policy
Principle 5: Document Retention and Destruction
Principle 6: Protection of Assets
Principle 7: Availability of Information to the Public
Principle 8: Board Responsibilities
Principle 9: Board Meetings
Principle 10: Board Size and Structure
Principle 11: Board Diversity
Principle 12: Board Independence
Principle 13: CEO Evaluation and Compensation
Principle 14: Separation of CEO, Board Chair and Board Treasurer Roles
Principle 15: Board Education and Communication
Principle 16: Evaluation of Board Performance
Principle 17: Board Member Term Limits
Principle 18: Review of Governing Documents
Principle 19: Review of Mission and Goals
Principle 20: Board Compensation
Principle 21: Financial Records
Principle 22: Annual Budget, Financial Performance and Investments
Principle 23: Loans to Directors, Officers, or Trustees
Principle 24: Resource Allocation for Programs and Administration
Principle 25: Travel and Other Expense Policies
Principle 26: Expense Reimbursement for Nonbusiness Travel Companions
Principle 27: Accuracy and Truthfulness of Fundraising Materials
Principle 28: Compliance with Donor’s Intent
Principle 29: Acknowledgment of Tax-Deductible Contributions
Principle 30: Gift Acceptance Policies
Principle 31: Oversight of Fundraisers
Principle 32: Fundraiser Compensation
Principle 33: Donor Privacy”