A great article, review of celebrity estate planning and litigation lessons, click here (and for additional discussion, click on the link at the bottom of the article).
Dave Tate, Esq. (San Francisco / California), trust, estate, conservatorship, elder and civil litigation, and contentious trust and estate administrations.
Yes, in this case it is probably best to hire a private professional fiduciary to be the conservator or at least provide advice. Click on the following link for the article. Enjoy.
Amanda Bynes’ mother cedes part of daughter’s conservatorship to private trust firm – Newsday.
Dave Tate, Esq. (San Francisco / California), http://californiaestatetrust.com
The following article raises interesting issues – click on the link below. Whether or not a will or trust is forged, i.e., is or is not in the handwriting of the decedent often is in part a battle of the handwriting experts. If you have never been involved in a handwriting case – it is a fascinating area of forensics. Whether or not the decedent had mental capacity to execute the document when it was signed – whether or not the document represents his wishes – and whether or not he was unduly influenced, can raise factual, medical and psychological issues.
Enjoy. Dave Tate, Esq.(San Francisco / California) – estate, trust, conservatorship and elder litigation and difficult administrations.
Disclaimer: The contents and links on this blog do not provide legal or other advice – they are for discussion only – you need to consult with an attorney or other professional for your specific situation.
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.
Garcia v. Commissioner of Social Security, September 23, 2014, Ninth Circuit, Case No. 12-15686, 14 C.D.O.S. 11169
I began reading this case out of my interest in cases involving mental capacity, functioning and disability issues. As I read this case I was struck by how disappointed I was that the issue had to proceed all the way to the Ninth Circuit for determination, and that the Social Security Administration would actually pursue the issue that far and force the disability applicant to incur that cost and loss of time. It is of course more difficult for a disability applicant to pursue a case such as this for benefits, whereas the Social Security Administration on the other hand has essentially unlimited legal resources.
Briefly, Garcia appealed from the District Court’s order affirming the Commissioner of Social Security’s denial of benefits to Garcia on the basis that she was not intellectually disabled. As a minor, Garcia received Social Security benefits because of her intellectual disability. After she reached the age of 18, the Social Security Administration concluded that she no longer qualified as disabled and was therefore not entitled to further benefits. Garcia sought review by an ALJ who determined that Garcia was not intellectually disabled. The Social Security Administration Appeals Council denied Garcia’s appeal, and the District Court then subsequently affirmed the Social Security Commissioner’s denial of benefits. The Ninth Circuit reversed.
There was fairly substantial evidence presented to the ALJ. The ALJ determined that Garcia had severe impairment of borderline intellectual functioning, but that the impairment was not so severe that it met the requirements for intellectual disability. The problem was that it was legal error for the ALJ to not ensure that the record included a complete set of IQ test results. The Ninth Circuit held that the ALJ is not a mere umpire in such a proceeding, but that it is incumbent upon the ALJ to scrupulously and conscientiously probe into, inquire of, and explore all of the relevant facts. The ALJ must be especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited.
More specifically, in Garcia’s circumstance the ALJ considered the reports of three experts, two psychologists and one physician. Psychologist McDonald evaluated Garcia at the request of the California Department of Social Services. McDonald administered multiple tests, one of which was the Wechsler Adult Intelligence Scale, III Edition (“WAIS-III”). However, McDonald administered only the performance portion of the WAIS-III due to the constraints of time and the slowness with which Garcia completed the test. The Ninth Circuit noted that this was not the first time that McDonald had given that reason for failing to administer a complete IQ test when evaluating a patient for intellectual disability. The Ninth Circuit further held that the excuse was troublesome and that the District Court should not have accepted it in the absence of some more compelling reason. The SSA’s regulations indicate that potentially disabled individuals may take more time than others to complete an IQ test administration, and that the administrator of the test should plan accordingly. The court further held that the ALJ always has a special duty to fully and fairly develop the record and to assure that the claimant’s interests are considered. In reversing, the Ninth Circuit held that the entire WAIS-III test should have been administered and that the ALJ’s failure to develop the record to include a complete set of IQ scores was legal error.
It strikes me as almost unbelievable, and certainly disappointing and perhaps even shocking, that the disability applicant had to pursue this case all the way up to the Ninth Circuit to obtain a result that was fair and that should have been automatically provided at the initial stage when McDonald was administering the IQ examination. And yet, one of the three judges from the Ninth Circuit submitted a dissenting opinion, arguing that deference should be given to the Social Security Administration’s denial of benefits determination. That should tell you how speculative and precarious it can be to evaluate the likelihood on recovering or receiving a favorable determination in court.
Dave Tate, Esq. (San Francisco / California)
A trustee needs a portfolio investment strategy in keeping with the terms of the trust and legal requirements.
In pertinent part California Probate Code section 16047(b) provides:
“A trustee’s investment and management decisions respecting individual assets and courses of action must be evaluated not in isolation, but in the context of the trust portfolio as a whole and as a part of an overall investment strategy having risk and return objectives reasonably suited to the trust.”
In discussing circumstances that are appropriate to consider in investing and managing trust liabilities section 16047(c)(4) also lists the role that each investment or course of action plays within the overall trust portfolio.
You should read section 16047 in its entirety, in addition to the terms of the trust and other applicable statutory and case law; however, the point is that a trustee needs to have a portfolio investment strategy.
And there is another very important reason to have a portfolio investment strategy. Investments will naturally increase and decrease in value over time. Although facts and circumstances in each different situation will vary, assuming that there is a portfolio investment strategy and that the portfolio investment strategy and other relevant facts are appropriate for the trust and the beneficiaries, as a general rule gains and losses of different investments within that portfolio investment strategy should be netted such that the trustee gets the benefit of both gains and losses if there is an assertion or claim that the trustee breached his or her management and investment fiduciary duties. Whereas, if there is no overall portfolio investment strategy, there is more of a likelihood that the gains and losses will not be netted, and that a trustee might be chargeable with a loss in a particular investment without the benefit of gains in other investments.
And this also reinforces the need for trustees to regularly review the portfolio investment strategy and the individual investments to make sure that the investments and allocation of investments are appropriate – although gains and losses should be netted as part of an overall portfolio investment strategy, if a particular investment becomes unsuitable or unsuitable to that overall investment strategy and if time continues to pass without a reevaluation of that investment by the trustee, not immediately, but over time, and argument might arise that it might no longer be appropriate to consider that individual investment and losses or gains in that investment as part of the overall portfolio investment strategy. In that circumstance the trustee could find that a court might treat that investment as a standalone investment and also treat gains and losses in that investment in the same manner without the benefit of netting with other investments. Obviously although that situation for the trustee might turn out okay if there is a gain in that investment, it does create greater investment loss risk for the trustee. Additionally, whereas the investment might initially gain in value, is also possible that an argument might arise that a subsequent loss in that individual investment might not be netted with the prior gains in that investment.
The facts and circumstances in each situation will vary, and each situation must be evaluated based on the facts and circumstances of that trust and that situation. Additionally, different judges will have differing approaches to trustee investment duties and responsibilities. Nevertheless, having a portfolio investment strategy approach, and timely reviewing that strategy, the investments made, and the investment allocation within the context of the trust, the beneficiaries, statutory and case law, and the investment and economic environment will help manage and reduce trustee investment liability risk.
Dave Tate, Esq. (San Francisco / California)
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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)
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)
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.
Bounds v. Superior Court (KMA Group), California Court of Appeal, Second Appellate District, No. B254505, Filed September 2, 2014.
Holding that on a demurrer to a cause of action for alleged financial elder abuse under the California Elder Abuse and Dependent Adult Civil Protection Act, for a “taking” of property to have occurred it is sufficient for the Complaint to allege that an elder had entered into an unconsummated agreement which, in effect, significantly impaired the value of the elder’s property although title to the property did not occur. The elder had been deprived of a property right by means of an agreement because although title to the real property did not change hands escrow instructions had been signed which significantly impaired the value of the property owned by the Trust.
Dave Tate, Esq. (San Francisco and California), http://californiaestatetrust.com
Probate, trust, estate, will, elder abuse, real property, power of attorney, conservatorship, Probate Court, and contentious administration related disputes, conflicts and litigation; and mediator and dispute resolution services. http://Californiaestatetrust.com. Note, I am posting future posts to http://tateattorney.com 