Completed (mostly) a will contest and trust real property percentage trial on Friday – read more

I have been away from the blog for a while, preparing for a very contentious and time-consuming trial.

This past week I was in trial on a will contest action, and also on related but separate real property ownership and trust beneficiary percentage ownership claims. The witnesses and experts included my client who was the named beneficiary, the contestant(s), documents in which the decedent expressed her wishes including a police report and APS records in addition to other documents, forensic document examiners, forensic psychiatrists, and third party witnesses including a very spry 102 year old woman who was a friend of the decedent (the decedent executed the will at age 103, and passed away approximately 9 months later at age 104). Issues also involve the validity of a power of attorney that the decedent executed in June 2015 (she died one month later in July 2015), mental capacity, undue influence, elder abuse, trust and power of attorney accountings, costs and attorneys’ fees, and other issues.

As you may be aware, issues of mental capacity and undue influence are not the same for wills, powers of attorney, and trusts, variously including California Probate Code §§810, etc., and 6100.5, etc., and California Welfare and Institutions Code §15610.70, and various other statutes and case law.

The will contest was denied, and my client will receive what the decedent wished and intended.

So . . . I will be back on this blog and other networking, and also on my other blog http://auditcommitteeupdate.com.

Best to you, and thank you for following my blogs and posts. Dave Tate, San Francisco Bay Area and California.

 

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The purpose of this blog – to inform and educate, and personally connect with people who need legal help with trust, estate, conservatorship, power of attorney, and elder and dependent adult abuse litigation, and administrations

This year in 2016, I’m taking a more specific, targeted, pragmatic and personal approach to my two blogs – and a view toward what’s the goal; what’s working; what isn’t working; ROI; what are the options; what to change, improve and stop; and are we taking a too long-term or short-term view with the approach? I have used the word “personal” twice, in the heading and in the body of this post – “personal” is a definite goal. This really isn’t rocket science – but it’s just good to keep in mind. Have a good day.

Best. Dave Tate, Esq. (San Francisco/California)

 

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

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

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

California Attorney General Office Information On Elder and Nursing Home Abuse

The following information is provided by the California Attorney General Office, see, e.g., http://oag.ca.gov/bmfea/elder. The numbers all point to staggering statistics, and the following information is only for reported cases – as I have previously written, the information available indicates that cases of abuse very significantly outnumber the reported cases, perhaps by a 24 to 1 ratio.

Elder Abuse

      • The United States Census Bureau projected in 2000 that California’s elderly population will have doubled by 2025 to 6.4 million – a larger growth rate than any other state
      • The California Department of Finance projects that the number of California residents aged 65 and older–those who are most likely to need nursing homes or other long term care–will nearly double between 2010 and 2030.
      • About 110,000 Californians live in about 1,300 licensed nursing homes and about 150,000 live in about 7,500 licensed residential care facilities for the elderly. Another 150,000 or more Californians are estimated to live in unlicensed assisted living facilities that may or may not be able to care for them properly.
      • Many residents of both licensed and unlicensed facilities suffer from dementia and may be given dangerous antipsychotic drugs to sedate or restrain them improperly
      • In 2009 the California Senate Office of Oversight and Outcomes reported that 13% of all complaints to the California Office of the State Long Term Care Ombudsman involved abuse, gross neglect, or exploitation, over twice the national rate of 5%
    • The California State Department of Finance claims that the number of California residents age 85 and older – those who are most likely to need nursing homes — will nearly double by the year 2030, when the bulk of baby boomers will come of age.
    • In 2005, the Office of Statewide Health Planning and Development reported that one-fifth of California’s nursing facilities did not meet state-mandated requirements for staffing levels.
    • In 2006, Centers for Medicare and Medicaid Services reported that twice as many of California’s 115,000 plus residents are placed in physical restraints as are nationally.
    • From 2001 to 2005, the California Department of Health Care Services, found that two-thirds of all reported deficiencies caused or could have caused significant harm to one of more residents in nursing homes. More than half of all complaints in nursing homes are related to poor quality of care. Eighteen percent of substantiated complaints were related to mistreatment or abuse.

Together, these staggering statistics and projections illustrate the urgent need to address and remedy the poor quality of care in many of California’s skilled nursing facilities.

Facilities Enforcement Team

The Facilities Enforcement Team investigates and prosecutes corporate entities, such as skilled nursing homes, hospitals, and residential care facilities, for adopting policies or promoting practices that lead to neglect and/or poor quality of care. Institutional neglect or substandard care includes:

  • Failure to provide medical care for physical and mental health needs
  • Failure to attend to hygiene concerns
  • Failure to provide adequate staffing
  • Failure to prevent malnutrition and dehydration
  • Falsification of patient chartsThe primary goal of the Operation Guardians program is to help protect and improve the quality of care for California’s elder and dependent adult residents residing in California’s approximately 1300 skilled nursing facilities. The Operation Guardians team identifies instances of abuse or neglect for further investigation and possible criminal or civil prosecution by the Bureau of Medi-Cal Fraud and Elder Abuse.
  • Operation Guardians
Fraud: 10/11 11/12 12/13 13/14 14/15
Criminal Filings 75 60 63 59 94
Convictions 58 46 35 32 56
Acquittals 3 1 0 0 2
Criminal Restitution $504,403 $279,228 $542,962 $180,017 $378,765
Civil Monetary Recoveries $6,145 $0 $0 $0 $0

 

The New California End of Life Option Act – Undue Influence Is Listed 5 Times

Click on the following link for a copy of the new California End of Life Option Act, End of Life Option Act. I’m just spotting elder and dependent adult abuse issues here – I’m not discussing political, religious, personal, ethical or other issues.

The Act proposes to include protections to ensure that a person who uses the Act is not being unduly influenced. Obviously undue influence, duress, fraud, etc. are concerns in any situation. By my count undue influence is listed 5 times in the Act, so it is an obvious concern. You can match that concern with similar efforts to influence an elder’s estate planning or gifting, and also with the new California revocable transfer on death deed which I discuss at this prior blog post http://wp.me/p1wbl8-cI.

Having an outside third person, as the Act provides, assert that the person using the Act hasn’t been unduly influenced is not necessarily trustworthy as the third person has not been personally present to observe and hear what influence, fraud or duress, if any, has been attempted, including simply negative statements about how awful or useless life has become.

I have also seen situations where it was thought that a person was ill or injured, and would die, only to find out later that the cause was improper medications or some other undiagnosed reason, and the person recovered with proper diagnosis and treatment.

As I said, I’m just spotting issues here. People need to be vigilant.

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