Tag Archives: beneficiary

Elder Abuse Protection Collaboration – Private Attorneys Needed, Updated Elder Abuse Slides Coming

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Just some quick thoughts for this Friday morning.

I am seeing more materials and promotions by organizations reporting and combating elder abuse. All of that is for the good and obviously is encouraged and a lot more is needed. The efforts primarily involve spotting elder abuse and reporting to law enforcement, adult protective services or some other governmental entity. I’m also seeing more proposals to have or to offer to have a written form allowing a client to authorize an organization to contact a specific person, such as a spouse or other family member, if the organization believes that the client is being subjected to elder abuse. The written authorization is a good step in the right direction. But let me also tell you, and this comes from years of experience, you must have collaboration with private attorneys to combat and remedy elder abuse. This isn’t a negative comment – it’s just a fact that there will never be sufficient government and APS resources to combat and remedy the numbers of cases of elder abuse and the time and expertise that it takes to handle these cases. Collaboration with private attorneys is needed. I prepared a short blog post video on this in April 2015, which you can see on the following link (note, this video is prepared prior to recent equipment and presentation improvements), http://wp.me/p1wbl8-aT

I am also updating my elder abuse presentation slides, which I last posted in May of this year. I will post the updated slides in a couple of days, so do stay in touch.

Have a very good Friday, and weekend.

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

 

From a fiduciary viewpoint, meeting the financial planning challenges of the future – Tate comments on Journal of Accountancy Article

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Click the following link to a pdf with my comments on a Journal of Accountancy article: Meeting the financial planning challenges of the future. My comments are from a fiduciary viewpoint in response to article discussions about robo-advisers, use of long-term cash projections, and spotting and planning for dementia.  This is a good article, although short in length, and it does not purport to cover these issues entirely. In any event, every situation is different. Click on the following link: Tate comments J of A article meeting the financial planning challenges of the future

Dave Tate, Esq. and licensed CPA (inactive) California
Blogs: http://californiaestatetrust.com and http://directorofficernews.com

California Trustee Discretionary Powers – Video

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California Trustee Discretionary Powers – see the video immediately below, and the primary text for the video at the bottom of this post. Thank you. Please pass this information to other people who would be interested. Dave Tate

Text: California Trustee Discretionary Powers

Hello, I’m Dave Tate. I am a San Francisco litigation attorney and I handle cases throughout California in trust, estate, conservatorship, elder abuse and civil litigation, and I also represent fiduciaries and beneficiaries in administrations.

This discussion is about trustee discretionary powers. You can find additional information on my blog at http://californiaestatetrust.com.

A trust will typically contain provisions that give the trustee discretionary powers, that is, the power to use his or her own judgment in specific circumstances. The courts will strictly construe the amount of the discretion from the language in the trust document and the intent of the trustor.

Be cautious, however—and this is important, even if the trust provides sole, absolute or uncontrolled discretion, courts still require the trustee to act within the fiduciary standards, to not self-deal, and to not act in bad faith or in disregard of the purposes and interests of the trust and of the beneficiaries. You can refer to Probate Code §§16080-81.

In other words, if the issue of a trustee’s discretion is presented to the court, the judge will make a determination based on his or her own evaluation of the trust, the trustor’s intent, and the circumstances at issue.

Unless limited by the terms of the trust, the trustee will also have other statutory powers. You should review the powers and limitations specified in the trust document, and also the powers listed at Probate Code §§16200-16249. These sections are important – however, they are too detailed to include in this discussion.

That’s it for now. There are of course other cases and statutes that can apply, and the facts of each situation are different. This discussion doesn’t constitute legal advice. You need to consult a lawyer or professional for your situation. You can find more information on my blog at http://californiaestatetrust.com. Thanks for listening.

Dave Tate, Esq. (San Francisco / California)

Inheritance From Actor Troy Donahue Estate – Equitable Estoppel Gives Beneficiary Legal Status

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Actor Troy Donahue died in 2001. On August 6, 2015, the California Court of Appeal, Second Appellate District (Los Angeles) held that Janene Curtis, the biological daughter of actor Troy Donahue, who was adopted at birth and thus was not entitled to inherit by intestacy, nevertheless is a beneficiary entitled to recovery pursuant to the doctrine of equitable estoppel. In other words, equitable estoppel conferred upon Ms. Curtis legal beneficiary status whereas otherwise she had no legal right to inherit. You can read the Court’s decision at the following link, https://scholar.google.com/scholar_case?case=14120595921206700250&hl=en&as_sdt=6,47 

In relevant part, the Court held that the separate legal doctrine of equitable estoppel conferred upon Ms. Curtis beneficiary status where the court appointed administrator of Mr. Donahue’s estate treated and communicated to Ms. Curtis as a beneficiary, Ms. Curtis relied upon the actions of the executor to her detriment, and the executor either knew that Ms. Curtis wasn’t an intestate beneficiary or was negligent in failing to know that Ms. Curtis wasn’t an intestate beneficiary.

This case is important because the Court applies the equitable estoppel doctrine in an inheritance case and cites other cases similarly holding. Although currently the decision is unpublished (the Court should change it to “published”), meaning that it cannot be cited as decisive legal authority in other cases, the case nevertheless is or might be relevant in other cases because it cites other legal authorities and provides a roadmap for the argument. Equitable estoppel can be another tool in estate, trust, conservatorship and elder abuse litigation cases.

Dave Tate, Esq. (California); Blog: http://californiaestatetrust.com; Email: tateatty@yahoo.com

 

California Trustee and Beneficiary Responsibilities and Rights, a 7-Page Summary

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Click on the following link for my 7-page paper discussing California trustee and beneficiary responsibilities and rights, A Summary of California Trustee and Beneficiary Responsibilities and Rights Dave Tate Esq 08012015

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

There Needs To Be A Law – Petitioning For Conservatorship Should Not Disinherit You

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Short and sweet. I’m not sure what the wording should be, but we need a law that to some extent protects a person from being disinherited for filing a petition for conservatorship.

The situation that I have in mind: a son or daughter files a petition for conservatorship of their mother or father. In doing so, the son or daughter risks that mom or dad will be very angry with the petition and will seek to change their estate planning to exclude or disinherit the son or daughter.  There needs to be some protection for the son or daughter, whether the petition for conservatorship is granted or not.

I’m not saying that I favor conservatorships. A conservatorship can be a serious restriction on a person’s constitutional rights and freedom. All I’m saying is that a son or daughter should not have to fear possible disinheritance for filing a petition for conservatorship in a situation where there is no finding that the petition was filed in bad faith or where there is evidence that a conservatorship might be necessary even if less restrictive options are available.

Dave Tate, Esq. (San Francisco and California), click link to this blog, Law Office of David W. Tate, and also working with Albertson & Davidson LLP, northern and southern California click link to Albertson & Davidson website.

What is Elder and Dependent Adult Self Abuse or Neglect?

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This is a significant category of elder and dependent adult abuse or neglect that generally isn’t discussed or defined. When thinking about elder and dependent adult abuse most of us tend to first think about abuse committed by persons other than the victim, and those perpetrators are typically classified either as outside third party or family perpetrators. Statistically, I have read that approximately 1/3 of the perpetrators are outside third party perpetrators, and about 2/3 of the perpetrators are family members.

But what about self abuse or self neglect. The following is a definition of self neglect from the National Center on Elder Abuse – and then below that definition I have added one area to that description:

“Tragically, sometimes elders neglect their own care, which can lead to illness or injury. Self-neglect can include behaviors such as:

  • Hoarding of objects, newspapers/magazines, mail/paperwork, etc., and/or animal hoarding to the extent that the safety of the individual (and/or other household or community members) is threatened or compromised.
  • Failure to provide adequate food and nutrition for oneself.
  • Failure to take essential medications or refusal to seek medical treatment for serious illness
  • Leaving a burning stove unattended
  • Poor hygiene
  • Not wearing suitable clothing for the weather
  • Confusion
  • Inability to attend to housekeeping
  • Dehydration

Self-neglect is one of the most frequently reported concerns brought to adult protective services. Oftentimes, the problem is paired with declining health, isolation, Alzheimer’s disease or dementia, or drug and alcohol dependency.

In some of these cases, elders will be connected to supports in the community that can allow them to continue living on their own. Some conditions like depression and malnutrition may be successfully treated through medical intervention. If the problems are severe enough, a guardian may be appointed.”

See also the discussion about self neglect by the National Clearinghouse on Abuse in Later Life at Click Here.

The area that I would add is financial elder and dependent adult self abuse or neglect – i.e., difficulty or the inability to make sound financial management decisions or choices, also including (1) lack of or difficulty with mental capacity and ability to understand the issues and choices at hand, (2) delay, procrastination or simply not making decisions that need to be made, and (3) also including an already recognized area of abuse by a third party which is the inability to resist the efforts or activities by a perpetrator of financial abuse.

I am seeing an already not insignificant, and an increasing number of materials and articles about elder and dependent adult situations that fit the financial elder and dependent adult self abuse or neglect definition.

These situations can raise a whole host of issues to address, such as how to protect the elder or dependent adult without violating his or her rights, in addition to satisfying personal third party duties and avoiding personal third party liability.  A scenario, for example, where you might see this type of situation in the financial category is when the elder or dependent adult goes to consult with his or her banker, investment advisor or financial advisor and the banker or advisor sees or gets a feeling that there are or might be actions or occurrences by the elder or dependent adult that evidence financial elder or dependent adult self abuse or neglect.

Please do pass information about self abuse, this blog and this blog post to other people who would be interested.

Dave Tate, Esq. (San Francisco), Civil Litigation; Trust, Estate, Conservatorship and Elder Abuse Litigation; Trust, Estate and Conservatorship Administration; Representing Fiduciaries and Beneficiaries.

Everyone Needs An On-Call Crisis Quick Response Attorney

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Attended the Silent Trusts Presentation – San Mateo Co. Bar Estate Planning

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Yesterday I attended the monthly San Mateo County Estate Planning and Probate Section lunch presentation. This presentation was on silent trusts, presented by attorneys Paul Barulich and Matthew Matiasevich. An interesting discussion about the planning, although rather limited planning, that parents can do in California to keep an irrevocable trust private from the beneficiaries, i.e., so that the beneficiaries don’t even know the trust exists. When might trustors desire this type of privacy from beneficiaries? One scenario could be when parents want their children to strive and achieve at least into their twenties without the certain knowledge that they will be receiving substantial trust assets.  At least based on responses by attendees, not many estate planning attorneys are preparing silent trusts.

One noted tidbit of information: even if the trust is drafted as a silent trust, trustee/trust duties under California Probate Code sections 16060.7, 16061 and 16061.5 are not waivable. Thus, for example, in some situations the trustee must still provide the terms of the trust and report to the beneficiary by providing information relating to the administration of the trust relevant to the beneficiary’s interest, if the beneficiary requests the trustee to do so.  Accordingly, even if a prospective beneficiary does not know that a trust exists, i.e., because the trust is silent, a prospective beneficiary should always ask a suspected trustee to provide information about any trust in which the prospective beneficiary is a beneficiary. Upon that request the trustee must provide some information.

Enjoy.

Dave Tate, Esq. (San Francisco / California) – Civil and Estate, Trust, Conservatorship and Elder Abuse Litigation – member of the Estate Planning and Probate Section Executive Committee.

My other blog, http://directorofficernews.com.

Study Finds Antipsychotic Drugs For Dementia Patients Increase Risk of Death

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An interesting article discussing a finding that antipsychotic drugs for dementia increase the risk of death. I find equally interesting the numbers of elderly who are receiving antipsychotic drugs.  Click on the following link for the article, Click Here.

Dave Tate, Esq. (San Francisco)

My other blog for directors, boards, audit committees, officers, CEO’s, CFO’s, risk management, governance and compliance: http://directorofficernews.com