Tag Archives: beneficiary

Is Your Trust, Estate, Power Of Attorney, Conservatorship, Or Care Situation Contentious?

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Are there disagreements and disputes in your trust, estate, power of attorney, conservatorship or care situation? That’s not unusual. In fact, based on my experience, I would have to say that it’s pretty common. But it can also be a game changer.

Generally a fiduciary such as a trustee, executor or conservator, and sometimes an attorney in fact, should always hire an attorney when challenging or difficult issues or significant assets are involved. The question is whether one of the parties who is involved in the situation has, or needs to, or may, or likely will hire an attorney with a view toward litigation? That’s a game changer when that possibility might occur or actually does.

Trust, estate, conservatorship, power of attorney, care and elder abuse situations and litigation are complicated legal practice areas that typically can involve a lot of emotional feelings and mistrust, and that require the attorney to know multiple areas of law and court procedure.

If you are a fiduciary such as a trustee, executor, conservator or attorney in fact you need to hire an attorney who can advise you properly about your responsibilities and on the administration of the trust, estate and assets, or on the care and daily living needs of the conservatee or person in need, with a view toward helping you to satisfy your responsibilities effectively and correctly, practicing prudent risk management and documentation, avoiding liability and litigation, and prevailing in court if the situation ends up in court.

If you are a beneficiary you need to hire an attorney who can steer you correctly to help you protect your rights and obtain the assets that were intended for you, and not waste your resources and the resources of the trust or of the estate, or possibly cause you to be surcharged for the attorneys’ fees of the other side, with a view toward prevailing in court if the situation ends up in court. If you are a beneficiary you also don’t want to unknowingly contest a trust or will or possibly disinherit yourself.

And if you are a trustor who is no longer trustee, or a principal under a power of attorney, or a conservatee, you need to feel and know that your physical, mental and financial needs and rights are correctly and timely cared for and protected, and you might also need to be represented by legal counsel. In fact, if the situation ends up in court, in some situations, such as in a conservatorship, you have an absolute right to be represented by an attorney, and in other situations the court should and will on its own appoint legal counsel to represent and advocate for you.

For additional information, the following is a link to my summary paper discussing trustee and beneficiary responsibilities and rights, and you can also find helpful information about other situations on other posts on this blog, CLICK HERE

Contact me if you would like to discuss your situation. You can contact me by sending me an email at davetateesq@gmail.com. Before we discuss your situation I will need to know the names of the people and attorneys involved to check for any possible conflicts.

Wishing you the very best,

Dave Tate, Esq., San Francisco and throughout California

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From Trusts & Estates – Safeguarding Trusts from Future Ex-Spouse – Also Good Marketing for Estate Planning Attorneys

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Trusts & Estates article Safeguard Trusts from Future Ex-Spouse of Beneficiary

This is a very interesting article from Trusts & Estates that I almost overlooked. It isn’t the Massachusetts case discussion that interests me, it is that I never hear estate planning attorneys discussing these topics and using these topics to tell people additional reasons why they might need a trust and how trusts can be used, and to differentiate one estate planning attorney’s services from another. Click on the following link for the article, CLICK HERE

Dave Tate, Esq., civil (business, real estate, injury), trust, estate, conservatorship and elder abuse litigation and contentious administrations, representing fiduciaries, beneficiaries and family members, San Francisco and throughout California. See also my other blog for audit committees, http://auditcommitteeupdate.com

See Discussion Paper – A Summary of California Trustee and Beneficiary Responsibilities and Rights

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Whether you are a trustee/fiduciary or a beneficiary, click on the following link for my summary paper discussing California trustee and beneficiary responsibilities and rights, A Summary of California Trustee and Beneficiary Responsibilities and Rights Dave Tate Esq 01052016

Dave Tate, Esq. San Francisco and throughout California – trust, estate, conservatorship and elder and dependent adult abuse litigation and contentious administrations; civil business, real estate and personal injury litigation; audit committees, D&O, risk, compliance and investigations. My other blog, http://auditcommitteeupdate.com

Probate Court Judges Need More Judiciary Education From The California Judicial Council

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I can say this – absolutely. California judges need more, and more detailed, education about probate, wills, trusts, decedent’s intent, mental capacity, undue influence, fraud, conservatorships and elder and dependent adult abuse.

I’m not saying that all judges need more education – some are quite experienced in these areas – but over the past several years I have been running into situations where judges who primarily handle civil or criminal matters are also assigned probate related cases. And this can happen in any court for trial purposes because even in courts that have dedicated probate departments, the trial of a probate case that will take longer than a day will probably be assigned to the master calendar for trial and judicial assignment. I’m not faulting a judge for not having experience in these areas – I am faulting the system and the judiciary education system.

While, yes, it can be argued that it is then for the attorneys to educate that judge, if I’m a judge and one attorney is saying that the law and the required outcome are “X” and another attorney is saying that the law and the outcome are “Y,” as the judge I don’t know who to believe. And add to that the fact that probate, wills, trusts, intent, mental capacity, undue influence, fraud, conservatorships and elder and dependent adult cases and evidence are detailed and complicated, including the law in those areas, which is also regularly changing, and you have a recipe for erroneous decisions, and also opportunities for less than honest counsel to exceed the bounds of advocacy and improperly twist or spin the law and the evidence.

These are important cases. They are the probate court version of family law – important issues, very emotional, and people related and impacting.

Dave Tate, Esq. (San Francisco and California) http://californiaestatetrust.com and http://directorofficernews.com

 

 

Elder Abusers Use The Legal System Also

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You might be surprised that elder abusers aren’t necessarily worried or scared of the legal system.

In my experience, most abusers as a personality trait believe that they can get away with the abuse because they believe that other people are stupid, or that they simply won’t be caught, or that other people won’t make the effort or don’t have the time and resources to stop them.

You might also be surprised to know that elder abusers use or try to use the legal system to help them commit the abuse. Here are a few of the ways that I have seen.

-The abuser calls the police and complains that other people, the good people, are abusing, or mistreating, stealing from, or unduly influencing the elder. The abuser tries to turn the tables on the good people so that the abuser can then have the elder victim alone.

-Similarly, the abuser calls adult protective services and complains that the good people are mistreating or stealing from the elder.

-Another example, the abuser obtains an attorney who will draft a will, or trust, or power of attorney for the elder naming the abuser, and the attorney does not understand or sufficiently care about his or her ethical and legal obligations to the elder who is the attorney’s client.

-Or the abuser files a contest of the elder’s will or trust documents.

-Except in situations of immediate theft, typically the abuser works at this for a continuous period of time taking small steps forward, influencing the elder against the good people and eventually getting the assets, documents or evidence that help the abuser.

And in another example, the abuser promises the elder victim something that the elder wants, something that will make the elder happy, such as . . . “if you sign the power of attorney I will be able to take you home,” even when it’s clear that medically or for daily care the elder should stay in the nursing home.

The list goes on. These are cases that are difficult and time consuming, and can be expensive to prosecute – it takes good people to take action.

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San Mateo County’s New Elder and Dependent Adult Protection Team – The Good and the Insufficient

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You may have heard that the San Mateo County Board of Supervisors this month passed a resolution funding the Elder and Dependent Adult Protection Team “EDAPT” (also sometimes known as or similar to “FAST” or “Financial Abuse Specialist Team” in other counties such as Los Angeles) for two years from the County’s Measure A funding. The initiative is funded with approximately $3.13 million taxpayer dollars over two years with the funding to begin July 1, 2015 and will run through June 2017. Click here for the link. The comments in this blog are my own. As you may know, I have handled trust, estate, conservatorship and elder abuse litigation cases for over 20 years. I have become a bit more expressive or activist in my comments. These comments are not criticisms of anyone who is trying to combat elder and dependent adult abuse. But the fact is that resources are inadequate to identify and then to stop and remedy abuse. And although resources will always be inadequate, one resource, private attorneys, is entirely or almost entirely unutilized in this battle. Until entities that receive reports of abuse arrange for a procedure to refer cases to private attorneys there is absolutely no way that those agencies, including Adult Protective Services (APS), the District Attorney, the police, county counsel, etc. can come close to protecting the abused and remedying the damages that they suffer. In fact, the link above seems to indicate that the new EDAPT initiative is primarily a community educational program, which does not involve legal or court system remedies.

Let me provide you with a quick example that should help to explain the situation and the grossly inadequate resources. The Link above states “Research shows that for every one case of older adult abuse [note that this apparently does not include dependent adult abuse] that is reported – there are another 24 that go unreported.”  The link also states “Reports of older adult abuse have been on the rise as the county’s older adult population continues to grow – which is estimated to grow by over 70% by 2030.” I don’t know how many incidents of abuse Adult Protective Services receives in an average month in San Mateo County – maybe one of my readers will respond with the average monthly number. Let’s just say that in an average month APS receives 30 reports of elder or older adult abuse (again, we are not even counting the additional cases of dependent adult abuse reporting). I suspect that the reports exceed 30 per month; however, if research indicates that for every report of older abuse there are another 24 that go unreported, that would be 30 x 25, or 750 incidents of adult abuse in an average month. Do you know how much time and effort it takes to stop and then remedy just one case of elder abuse through the court system? Well . . . that number does vary from case to case, but I can tell you that based on my experience in my cases, the number of hours is huge and the time (i.e., months or even years) that it can take also can be staggering. I can also fully confirm that abusers actively fight legal actions that are brought against them. They know or believe that resources are limited and inadequate, and that they might stand a reasonable chance of beating the system.

The new initiative is for two years, at an average funding of roughly $1.5 million per year. The funding started July 1, 2015, so we already have 3 months done in the first year of the initiative. I have been looking for a detailed two-year plan for the initiative – perhaps one of my readers can tell me where I can find that plan. I have written and videoed about this topic before, and the inadequate resources. Again, I fully support the efforts of everyone who is fighting elder and dependent adult abuse, but let me say that resources are inadequate, and you really, really need to bring vetted private attorneys into the effort through referrals or by whatever means makes the report receiving agencies (i.e., APS, etc.) comfortable.

Best, Dave Tate, Esq. (and licensed inactive CPA), San Mateo County, San Francisco Bay Area, and throughout California

Elder Abuse In Australia On The Rise – Government Makes A $100 Million Pledge

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Click on the following link for an article out of Australia, elder abuse is domestic violence and is on the rise – the government makes a $100 million pledge: Click Here For The Article

AU Elder Abuse Article

Blog Stats. Chart – Oct. 2015: 1,000 Views/700 Visitors – 2015: 9,000 Views/6,000 Visitors

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Blog Stats. - Oct. 2015

Updated Elder Abuse and Protection Presentation Slides – Please Read and Forward

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I have provided below a link to a PDF of my October 12, 2015, updated elder and dependent adult abuse and protection presentation slides. The slides are extensive. This is an important topic – and the resources are not sufficient to prevent or remedy the problem.

Please read and also forward this post and the materials to other people who would be interested. Click on the following link for the PDF and slides, ELDER ABUSE AND PROTECTION 10122015 FINAL

You can also find other discussions about this topic on other blog posts.

Thank you. Dave Tate, Esq., San Francisco and throughout California