New law expands legal standing in California to petition for a restraining order to stop and prevent elder and dependent adult isolation abuse

California Assembly Bill No. 1243, signed by Governor Newsom  on September 23, 2021, in relevant part expands the definition of an “interested party” who has legal standing to petition the court for a restraining order to enjoin (i.e., stop and prevent) elder and dependent adult isolation abuse. Assembly Bill No. 1243 is effective beginning January 1, 2023.

For the purpose of seeking the restraining order to enjoin (i.e., to stop and prevent) the isolation, pursuant to Assembly Bill No. 1243, beginning January 1, 2023 the term interested party will be expanded to include the following: “Interested party” means an individual with a personal, preexisting relationship with the elder or dependent adult. Thus, for example, if the requisite factual circumstances exist, friends and family members will now (beginning January 1, 2023) have legal standing to file a petition requesting the court to issue an order enjoining the wrongdoer from isolating the elder or dependent adult victim.

Elder and dependent adult cases present challenging legal issues relating to proof and remedies. And the elder or dependent adult victim can feel torn and pulled in different emotional and relationship directions. For example, situations are common where a wrongdoer is trying to unduly influence or take financial advantage of and to be alone with and isolate the elder or dependent adult victim so the wrongdoer can more easily badmouth others or take or steal or get the victim to change her or his estate planning documents, while good family members and friends are also trying to protect the elder or dependent adult and to keep the wrongdoer away. I have seen in these situations a wrongdoer who tries to use the law to help the wrongdoer to be able to continue to see and be with the elder or dependent adult victim including petitioning the court for an order to prevent the good people from keeping the wrongdoer away. And the victim is torn because she or he mistakenly believes the wrongdoer is actually a benevolent friend or family member.

Although California law does tend to extend legal standing in elder and dependent adult abuse cases more broadly than the laws in some other states (such as Florida, for example, where it is still too limited), even in California legal standing needs to be expanded to the greatest extent possible so that wrongdoers aren’t able to hide behind the law as a shield, and Assembly Bill No. 1243 will be helpful in that regard (beginning January 1, 2023). But, of course, this new provision would be even more helpful if it is made effective immediately.  

The following are select relevant wording provisions from Assembly Bill No. 1243:

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1.

(a) It is the intent of the Legislature to prevent domestic violence, including elder and dependent adult abuse, and particularly to preserve the physical and mental health of vulnerable Californians.

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(b) The Legislature finds and declares that one way perpetrators of domestic violence, including elder and dependent adult abuse, are able to continue with their abuse is by preventing trusted friends and family members from seeing or contacting a vulnerable adult. As the vulnerable adult is isolated, it becomes more and more difficult for others to identify signs of abuse. The isolation also allows the perpetrator to potentially take over finances and hide any indications that they are doing so.

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A court order is not required for an elder or dependent adult to engage in visitation from anyone from whom the elder or dependent adult desires visitation.

(c) The Legislature further finds and declares that it is extremely important that the health and well-being of a vulnerable adult be front and center in any decision affecting them.

(d) It is the intent of the Legislature that the changes made by this act ensure that vulnerable adults are able to protect and preserve their physical and mental health, by making certain that these vulnerable adults are able to maintain important familial and social connections that they desire, and that a perpetrator does not cut off those relationships in an attempt to take advantage of the vulnerable adult.

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SEC. 3.

Section 15657.03 is added to the Welfare and Institutions Code, to read:

15657.03.

 (a) (1) An elder or dependent adult who has suffered abuse, as defined in Section 15610.07, may seek protective orders as provided in this section.

(2) (A) A petition may be brought on behalf of an abused elder or dependent adult by a conservator or a trustee of the elder or dependent adult, an attorney-in-fact of an elder or dependent adult who acts within the authority of a power of attorney, a person appointed as a guardian ad litem for the elder or dependent adult, or other person legally authorized to seek the relief.

(B) (i) Subject to clause (ii), if the petition alleges abuse of an elder or dependent adult in the form of isolation, the term “other person legally authorized to seek the relief” as used in subparagraph (A) includes an interested party as defined in paragraph (3) of subdivision (b) [DTate: see below].

(ii) Clause (i) shall apply only for the purpose of seeking an order enjoining isolation under subparagraph (E) of paragraph (5) of subdivision (b).

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(b) For purposes of this section:

(1) “Abuse” has the meaning set forth in Section 15610.07.

(2) “Conservator” means the legally appointed conservator of the person or estate of the petitioner, or both.

(3) “Interested party” means an individual with a personal, preexisting relationship with the elder or dependent adult. A preexisting relationship may be shown by a description of past involvement with the elder or dependent adult, time spent together, and any other proof that the individual spent time with the elder or dependent adult.

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(5)(E) (i) After notice and a hearing only, an order enjoining a party from abusing an elder or dependent adult by isolating them. An order may be issued under this subparagraph to restrain the respondent for the purpose of preventing a recurrence of isolation if the court finds by a preponderance of the evidence, to the satisfaction of the court, that the following requirements are met:

(I) The respondent’s past act or acts of isolation of the elder or dependent adult repeatedly prevented contact with the interested party.

(II) The elder or dependent adult expressly desires contact with the interested party. A court shall use all means at its disposal to determine whether the elder or dependent adult desires contact with the person and has the capacity to consent to that contact.

(III) The respondent’s isolation of the elder or dependent adult from the interested party was not in response to an actual or threatened abuse of the elder or dependent adult by the interested party or the elder or dependent adult’s desire not to have contact with the interested party.

(ii) The order may specify the actions to be enjoined, including enjoining the respondent from preventing the interested party from in-person or remote online visits with the elder or dependent adult, including telephone and online contact.

(iii) An order enjoining isolation under this section is not required for an elder or dependent adult to visit with anyone with whom the elder or dependent adult desires visitation.

(iv) An order enjoining isolation shall not be issued under this section if the elder or dependent adult resides in a long-term care facility, as defined in Section 9701, or a residential facility, as defined in Section 1502 of the Health and Safety Code. In those cases, action may be taken under appropriate federal law.

(v) An order enjoining isolation shall not be issued under this section if the elder or dependent adult is a patient of a health facility as defined in subdivision (a), (b), or (f) of Section 1250 of the Health and Safety Code. In those cases, action may be taken under other appropriate state or federal law.

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Best to you,

David Tate, Esq. (and inactive CPA)

  • Litigation and Disputes – Business, Contract, Owner, and Founder; and Trust, Estate, Elder/Dependent Abuse, Conservatorships, POA, Real Property, Administrations, etc.
  • Mediator
  • D&O, Governance, Workplace, Boards, Committees, and Executives, Investigations, Internal Controls and Auditing, etc.

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My two blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing in California only.

⁃  Litigation, disputes and trials (primarily in the following areas):

Commercial and business, and business owner, investor, shareholder, D&O, officer, director, governance, accountings, lost income, profits and royalties, and business-related;

Trust, estate, elder abuse, POA, conservatorship, contentious administrations, ethics, etc.;

Workplace and employment, and real property; and

Various other cases and areas (environmental contamination, accidents, insurance, etc.).

⁃  Boards and committees including audit and governance committees, investigations, independence, conflicts, governance, diligence, risk management, ESG, etc. – representation and advising re conduct, authority, duties and responsibilities, rights, and liability.

⁃  Services as a mediator, and dispute resolution.

A conservatorship game changer – California Assembly Bill No. 1194 – two provisions: the right to be represented by an attorney (a zealous, independent advocate), and the clear and convincing standard of proof

California Assembly Bill No. 1194, Low, Conservatorship, was approved by the Governor and filed with the Secretary of State on September 30, 2021. The Bill is long, has many sections, and amends many sections of the Probate Code or makes new sections. Some of the provisions do not necessarily become mandatory immediately – typical wording that is included in many of the new provisions states something similar to: “A superior court shall not be required to perform any duties imposed pursuant to this section until the legislature makes an appropriation identified for this purpose.” Nevertheless, as to a certain extent the Probate Court in each Superior Court sometimes can operate as it wishes, although not “required” to perform the specified duties, a Probate Court still might decide to do so prior to an appropriation being made by the legislature. If a Probate Court decides to perform the new duties earlier than required to do so, the Probate Court should be sure to make that decision known to practicing attorneys, the public, and others.

Some of the new provisions apply to conservatorships in general, whereas other provisions specifically apply only to limited conservatorships, or temporary conservatorships, or other specific situations.    

You can find other conservatorship related posts throughout this blog. Conservatorships are a developing area of law. The new provisions strengthen conservatee and prospective conservatee rights, which is appropriate given that a conservatorship is a state action that limits the conservatee’s constitution rights of freedom and personal choice. It is also true that, in the real world, recognizing and specifying the additional rights most likely will create or cause new processes and procedures which might well cause fewer conservatorships to be granted, more conservatorships might be terminated, conservatorships that are ordered might involve fewer limitations or restrictions on conservatees, and additional court time and attention might be required in conservatorship cases. The result might also be that if there are fewer conservatorships, people who would have been but who are not being conserved might need additional help or assistance from an attorney in fact under a power of attorney, or from a trustee, or from a spouse or domestic partner, family and friends.

The following are two significant sections in AB 1194 which are effective immediately. The first section amends Probate Code section 1471. The second section amends Probate Code section 1863.

The amendment to Probate Code section 1471 specifies that a conservatee or a prospective conservatee, or a person alleged to lack legal capacity is entitled to be represented by an attorney, whether the attorney is the public defender or private counsel, and that the conservatee or prospective conservatee also in most situations is entitled to be represented by an attorney of her or his choice (or, perhaps, by the choice of her or his attorney in fact?). Amended section 1471 also appears to require the court to appoint legal counsel for the conservatee, prospective conservatee or person alleged to lack legal capacity even when legal counsel wasn’t requested – see below at section 1471(b).

The amendment to Probate Code section 1863 is perhaps even more significant. Amended sections 1863(c) and (d) provide that when a court is determining whether the granting of a conservatorship is appropriate, and when reviewing the appropriateness of a conservatorship continuing or not (which is required at least annually and sometimes can be required more often), unless the court determines by clear and convincing evidence that the conservatee meets the criteria for the appointment of a conservator or still meets that criteria (i.e., that the order for a conservatorship is appropriate), and that the conservatorship and the powers that have been granted to the conservator are the least restrictive means of providing help and assistance to the conservatee or prospective conservatee, the court shall terminate the conservatorship or modify the terms to be the least restrictive.

As the clear and convincing standard is a higher standard of proof than for example the preponderance of the evidence, the result might be fewer conservatorships being granted, or less restrictive conservatorship terms, or more conservatorships being terminated. As in many circumstances a conservatee or prospective conservatee also is entitled to have a trial on the matter (i.e., with witness testimony instead of the judge simply making a decision from the bench), and also might be entitled to have a trial by jury instead of simply by the judge, there is the prospect that more conservatorship cases will result in trials, and in jury trials (see also section 1471(e) below in reference to the attorney being a “zealous, independent advocate representing the wishes of their client”).   

Below I have copied and pasted the new amended Probate Code sections 1471 and 1863. You can also search this blog for other “conservatorship” posts.

Thanks for reading, and best to you, Dave Tate, Esq.

SEC. 6.

Section 1471 of the Probate Code is amended to read:

1471.

(a) If a conservatee, proposed conservatee, or person alleged to lack legal capacity is unable to retain legal counsel and requests the appointment of counsel to assist in the particular matter, whether or not that person lacks or appears to lack legal capacity, the court shall, at or before the time of the hearing, appoint the public defender or private counsel to represent the person in the following proceedings under this division:

(1) A proceeding to establish or transfer a conservatorship or to appoint a proposed conservator.

(2) A proceeding to terminate the conservatorship.

(3) A proceeding to remove the conservator.

(4) A proceeding for a court order affecting the legal capacity of the conservatee.

(5) A proceeding to obtain an order authorizing removal of a temporary conservatee from the temporary conservatee’s place of residence.

(b) If a conservatee or proposed conservatee has not retained legal counsel and does not plan to retain legal counsel, whether or not that person lacks or appears to lack legal capacity, the court shall, at or before the time of the hearing, appoint the public defender or private counsel to represent the person in any proceeding listed in subdivision (a).

(c) In any proceeding to establish a limited conservatorship, if the proposed limited conservatee has not retained legal counsel and does not plan to retain legal counsel, the court shall immediately appoint the public defender or private counsel to represent the proposed limited conservatee. The proposed limited conservatee shall pay the cost for that legal service if they are able. This subdivision applies irrespective of any medical or psychological inability to attend the hearing on the part of the proposed limited conservatee as allowed in Section 1825.

(d) If a conservatee, proposed conservatee, or person alleged to lack legal capacity expresses a preference for a particular attorney to represent them, the court shall allow representation by the preferred attorney, even if the attorney is not on the court’s list of a court-appointed attorneys, and the attorney shall provide zealous representation as provided in subdivision (e). However, an attorney who cannot provide zealous advocacy or who has any conflict of interest with respect to the representation of the conservatee, proposed conservatee, or person alleged to lack legal capacity shall be disqualified.

(e) The role of legal counsel of a conservatee, proposed conservatee, or a person alleged to lack legal capacity is that of a zealous, independent advocate representing the wishes of their client, consistent with the duties set forth in Section 6068 of the Business and Professions Code and the California Rules of Professional Conduct.

(f) In an appeal or writ proceeding arising out of a proceeding described in this section, if a conservatee or proposed conservatee is not represented by legal counsel, the reviewing court shall appoint legal counsel to represent the conservatee or proposed conservatee before the court.

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SEC. 16.

Section 1863 of the Probate Code is amended to read:

1863.

(a) The court shall hear and determine the matter according to the law and procedure relating to the trial of civil actions, including trial by jury if demanded by the conservatee. The conservator, the conservatee, the spouse or domestic partner, or any relative or friend of the conservatee or other interested person may appear and support or oppose the termination of the conservatorship.

(b) (1) The conservatee shall be produced at the hearing except in the following cases:

(A) When the conservatee is out of the state and is not the petitioner.

(B) When the conservatee is unable to attend the hearing by reason of medical inability.

(C) When the court investigator has reported to the court that the conservatee has expressly communicated that the conservatee (i) is not willing to attend the hearing, (ii) does not wish to contest the continuation of the conservatorship, and (iii) does not object to the current conservator or prefer that another person act as conservator, and the court makes an order that the conservatee need not attend the hearing.

(2) If the conservatee is unable to attend the hearing because of medical inability, that inability shall be established by the affidavit or certificate of a licensed medical practitioner or, if the conservatee is an adherent of a religion whose tenets and practices call for reliance on prayer alone for healing and is under treatment by an accredited practitioner of that religion, by the affidavit of the practitioner. The affidavit or certificate is evidence only of the conservatee’s inability to attend the hearing and shall not be considered in determining the issue of need for the continuation of the conservatorship.

(3) Emotional or psychological instability is not good cause for the absence of the conservatee from the hearing unless, by reason of that instability, attendance at the hearing is likely to cause serious and immediate physiological damage to the conservatee.

(c) Unless the court determines, on the record and by clear and convincing evidence, that (1) the conservatee still meets the criteria for appointment of a conservator of the person under subdivision (a) of Section 1801, a conservator of the estate under subdivision (b) of Section 1801, or both; and (2) a conservatorship remains the least restrictive alternative needed for the conservatee’s protection, as required by subdivision (b) of Section 1800.3, the court shall enter judgment terminating the conservatorship.

(d) If the court determines, by clear and convincing evidence, that the conservatee meets the criteria for appointment of a conservator of the person under subdivision (a) of Section 1801, a conservator of the estate under subdivision (b) of Section 1801, or both, the court shall determine whether to modify the existing powers of the conservator to ensure that the conservatorship remains the least restrictive alternative needed for the conservatee’s protection and shall order the conservatorship to continue accordingly. If the court modifies the existing powers of the conservator, new letters shall issue.

(e) At the hearing, or thereafter on further notice and hearing, the conservator may be discharged and the bond given by the conservator may be exonerated upon the settlement and approval of the conservator’s final account by the court.

(f) This section does not apply to limited conservatorships.

(g) Termination of conservatorship does not preclude a new proceeding for appointment of a conservator on the same or other grounds.

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Buskirk v. Buskirk (August 14, 2020) 53 Cal. App. 5th 523 – holding that personal jurisdiction rules are the same for trust proceedings as they are for civil proceedings – i.e., California’s jurisdictional reach is long

The following is a summary of Buskirk v. Buskirk which is a recent and important case that discussed the reach of California’s jurisdiction in trust/probate court cases.

Buskirk v. Buskirk (August 14, 2020) 53 Cal. App. 5th 523 – holding that personal jurisdiction rules are the same for trust proceedings as they are for civil proceedings – i.e., California’s jurisdictional reach is long, personal jurisdiction depends on the connections that the defendant, and/or the facts, and/or the assets that are at issue, had or have with California

Buskirk affirms the view of personal jurisdiction that I have followed in probate court cases – i.e., that California’s jurisdictional reach is long, but, of course, it is not unlimited. Broadly viewed, the approach is: (1) was or is the defendant located in California, or (2) to what extent did the relevant facts or actions occur in California, or (3) to what extent were or are the assets that are at issue located in California? In Buskirk for example, the court held that California does have jurisdiction over the settlor/trustee although she used to be but now no longer was located in California. The court evaluated the history of the settlor/trustee’s actions in California, the relevant facts and actions that had occurred in California, and the extent that the assets that were at issue were located in California.

The opinion in Buskirk also is helpful because it is fairly long and detailed as to the various different facts that were involved and that the Court considered. There are a lot of facts in Buskirk that are also present or that could also be present in a typical California probate court case. Below you will find a summary of the opinion including some quotes from the court.

“As a matter of state law, personal jurisdiction rules are the same for civil and trust proceedings. [See Prob. Code § 17004 . . . .]”

California courts may exercise jurisdiction to determine matters concerning trust property located in California—particularly land—even if the trust is administered elsewhere.

California courts may exercise jurisdiction on any basis consistent with the state or federal Constitutions. Cal. Civ. Proc. Code § 410.10.

Court focuses on the defendants’ relationship to the forum state when assessing personal jurisdiction.

Jurisdiction is proper if a defendant has minimum contacts with the state such that the lawsuit does not offend traditional notions of fair play and substantial justice.

Personal jurisdiction can be all-purpose (also called “general”) or case-linked (also called “specific”).

With case-linked jurisdiction, the court may adjudicate only those disputes relating to defendants’ contacts with the forum.

Case-linked jurisdiction is proper when: (1) defendants have purposefully availed themselves of forum benefits; (2) the controversy relates to the defendants’ contacts with the forum; and (3) the exercise of jurisdiction comports with fair play and substantial justice.

When considering purposeful availment prong of case-linked jurisdiction test, court considers whether the defendants’ conduct connects them to the forum in a meaningful way.

Defendants purposefully avail themselves of a forum’s benefits, such that case-linked jurisdiction is proper, if they intentionally direct their activities at a forum such that, by virtue of the benefit the defendants receive, they should reasonably expect to be subject to jurisdiction there.

A defendant need not physically enter California at all to be subject to personal jurisdiction in California.

“A defendant need not physically enter California at all to be subject to personal jurisdiction here. (Halyard Health, Inc. v. Kimberly-Clark Corp. (2019) 43 Cal.App.5th 1062, 1075, 256 Cal.Rptr.3d 915.) Nor can the mother undo her lifelong California contacts by moving to a new state. No matter where they now live, Respondents’ activities have involved a trust that was created and managed in California, that is governed by California law, and that continues to hold interests in California real property. Respondents have purposefully availed themselves of the California forum.”

“Next we tackle the second prong about “relatedness”: whether the son’s claims relate to Respondents’ contacts with California. We look for a substantial connection between Respondents’ forum activities and the son’s claims. (Vons, supra, 14 Cal.4th at pp. 452, 456, 58 Cal.Rptr.2d 899, 926 P.2d 1085.)”

“To defeat exercise of case-linked jurisdiction on fairness grounds, the defendant must present a compelling case that exercising jurisdiction would be unreasonable.”

“Venue is separate from personal jurisdiction. Witkin Library Reference: 2 Witkin, Cal. Procedure (5th ed. 2008) Jurisdiction, § 158 [Ownership, Possession, or Use of Property.]”

“Among other findings, the trial court specifically found most of the Trust properties currently are in Idaho, the son is no longer a Trust beneficiary, and the mother has moved to Idaho. We accept those factual findings and do not question them.”

“Mother intentionally connected with California for her own benefit, such that connection satisfied purposeful availment prong of case-linked jurisdiction over mother in son’s action for accounting of family real estate trust, where mother was lifelong California resident, created trust with her husband in California and chose California law to govern trust, trust held interests in California real estate, mother had filed four lawsuits in California involving trust property, and, since leaving California, mother had engaged in transactions aimed at extinguishing the trust’s interests in the California real estate.”

“Daughters’ connections with California satisfied purposeful availment prong of case-linked jurisdiction in son’s action for accounting of family real estate trust, where daughters were successor beneficiaries and successor trustees of the trust, which originated in California, was governed by California law, and held interest in California real estate, daughters participated in trust transactions, and daughters physically came to California to get their mother, who was trustor, and to move her to Idaho, which triggered the trust changes at issue.”

“Uncle’s connections with California satisfied purposeful availment prong of case-linked jurisdiction in son’s action for accounting of family real estate trust, where uncle had role in managing trust, which originated in California, was governed by California law, and held interest in California real estate, uncle also participated in the trust’s real estate transactions, and uncle assisted in moving trustor mother from California to Idaho, which was event that changed trust’s operation.”

“Son’s claims for accounting of family real estate trust and for removal of trustees related to mother’s, uncle’s, and daughters’ contacts with California, as required for court to assert case-specific jurisdiction over them; mother, uncle, and daughter were connected to California through the trust, which was the topic of the son’s suit, suit asserted that they harmed son and the trust by engaging in below-market California land deals and that mother created an impermissible conflict of interest, son claimed the transactions rendered them unfit to serve as trustees, and son sought appointment of professional fiduciary as trustee and claimed he had been refused an accounting.”

“Exercise of case-linked jurisdiction over mother, uncle, and daughters was fair in son’s action for accounting of family real estate trust; son was resident of California, mother previously had chosen to litigate in California regarding trust, daughters or their agents came to California to move mother to Idaho, uncle was successor trustee and managed its affairs for mother, who had lived in California for 89 years, and while mother was elderly and one daughter had cancer, court would make reasonable accommodations.”

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Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only

Litigation, Disputes, Mediator & Governance: Business, Trust/Probate, Real Property, Governance, Elder Abuse, Investigations, Other Areas

Blogs:

Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com

Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

  • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

  • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
  • Misappropriation of trade secrets.
  • M&A disputes.
  • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
  • Buy-sell disputes.
  • Funding and share dilution disputes.
  • Accounting, lost profits, and royalty disputes and damages.
  • Insurance coverage and bad faith.
  • Access to corporate and business records disputes.
  • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

  • Corporate, business, nonprofit and governmental internal investigations.
  • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediator Services and Conflict Resolution

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Video – You Can Resolve And Settle Your Convervatorship Dispute And Case – Dave Tate, Esq., Litigation, Disputes, And Mediator – California

Greetings to all of my friends, colleagues, and connections, and other people who are interested – below is a short video discussing resolution and settlement of conservatorship disputes and cases. Please contact me if I can help you settle your case or dispute. Best to you, Dave Tate

Below I have also provided my video with a summary overview of my mediator qualifications and experience:

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Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only

Litigation, Disputes & Mediator: Business, Trust/Probate, Real Property, Governance, Elder Abuse, Investigations, Other Areas

Blogs:

Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com

Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

      • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

      • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
      • Misappropriation of trade secrets.
      • M&A disputes.
      • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
      • Buy-sell disputes.
      • Funding and share dilution disputes.
      • Accounting, lost profits, and royalty disputes and damages.
      • Insurance coverage and bad faith.
      • Access to corporate and business records disputes.
      • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

      • Corporate, business, nonprofit and governmental internal investigations.
      • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediator Services and Conflict Resolution

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Conservatee right to live in personal residence, and sale of personal residence – new 2020 law changes – forwarding from Weintraub Tobin

The following is a link to a discussion by attorney Carlena Tapella at Weintraub Tobin about two new conservatee personal residence rights beginning in 2020. https://www.weintraub.com/blogs/theres-no-place-like-home-heightened-evidentiary-standard-for-moving-conservatees-from-their-personal-residence

As discussed by Ms. Tapella, under present law it is presumed that the personal residence of the conservatee is the least restrictive and most appropriate residence where the conservatee should live. But beginning in 2020 that presumption can only be overcome by clear and convincing evidence, which is a significantly higher standard. Amended Probate Code Section 2352.5 will in part read: “In any hearing to determine if removal of the conservatee from the conservatee’s personal residence is appropriate, that presumption may be overcome by clear and convincing evidence.” And the petitioner or conservator also will be required to determine and establish the appropriate level of care, including the most appropriate residence. Amended Section 2352.5 will also in part read that: If the conservatee is living at a location other than the conservatee’s personal residence at the commencement of the proceeding, that determination shall either include a plan to return the conservatee to their personal residence or an explanation of the limitations or restrictions on a return of the conservatee to their personal residence in the foreseeable future.”

In recent years several California Court decisions have significantly increased the rights of conservatees and prospective conservatees, including, for example, the right to a jury trial on at least some of the conservatorship issues. You should also be aware that a conservatee and a prospective conservatee also have the right to oppose the conservatorship and the conditions of the conservatorship, and also the right to be represented by an attorney – and in appropriate circumstances the Court will appoint an attorney to represent the conservatee or prospective conservatee. The Courts have recognized that a conservatorship proceeding is an action in which the person who has filed the petition is requesting the Court (the State or government) to limit or to take away or to restrict some of the prospective conservatee’s constitutional rights and rights to personal freedom and freedom of choice and decision making. You will see in some of my prior blog posts discussions about certain aspects of conservatorships.

At the link above Ms. Tapella also discusses 2020 changes that put restrictions on the sale of the conservatee’s residence. Amended Probate Code Section 2540 will in part read: “In seeking authorization to sell a conservatee’s present or former personal residence, the conservator shall notify the court that the present or former personal residence is proposed to be sold and that the conservator has discussed the proposed sale with the conservatee . . . . and whether the conservatee supports or is opposed to the proposed sale and shall describe the circumstances that necessitate the proposed sale, including whether the conservatee has the ability to live in the personal residence and why other alternatives, including, but not limited to, in-home care services, are not available. The court, in its discretion, may require the court investigator to discuss the proposed sale with the conservatee.”

The law of conservatorships, and conservatorship proceedings and administrations, including the responsibilities and rights of conservatees and conservators, continue to become more specialized and complicated, and conservatee rights continue to increase and be recognized by the California Legislature and by the Courts.

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Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only.

I am also the Chair of the Business Law Section of the Bar Association of San Francisco.

Blogs: Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com; Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Probate Court Disputes and Litigation

  • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries and beneficiaries; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business and Business-Related Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; and Nonprofit Entities

  • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
  • Misappropriation of trade secrets
  • M&A disputes
  • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes
  • Buy-sell disputes
  • Funding and share dilution disputes
  • Accounting, lost profits, and royalty disputes and damages
  • Access to corporate and business records disputes
  • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations and Governance

  • Corporate and business internal investigations
  • Board, audit committee and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.

The following are copies of the tables of contents of three of the more formal materials that I have written over the years about accounting/auditing, audit committees, and related legal topics – Accounting and Its Legal Implications was my first formal effort, which resulted in a published book that had more of an accounting and auditing focus; Chapter 5A, Audit Committee Functions and Responsibilities, for the California Continuing Education of the Bar has a more legal focus; and the most recent Tate’s Excellent Audit Committee Guide (February 2017) also has a more legal focus:

Accounting and Its Legal Implications

Chapter 5A, Audit Committee Functions and Responsibilities, CEB Advising and Defending Corporate Directors and Officers

Tate’s Excellent Audit Committee Guide

The following are other summary materials that you might find useful:

OVERVIEW OF A RISK MANAGEMENT PROCESS THAT YOU CAN USE 03162018

Audit Committee 5 Lines of Success, Diligence, and Defense - David Tate, Esq, 05052018

COSO Enterprise Risk Management Framework ERM Components and Principles

From a prior blog post which you can find at https://wp.me/p75iWX-dk if the below scan is too difficult to read:

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New California case upholds the substantial benefit doctrine for payment and recovery of attorneys’ fees and expert witness fees from the entire trust and the shares of all of the beneficiaries

In Smith v. Szeyller (Court of Appeal, Second Appellate District, B281758, January 16, 2019), the court held that the probate court’s award approving payment of attorneys’ fees and expert witness fees from the trust to the beneficiary who challenged the trustees’ accounting and management of the trust was appropriate under the substantial benefit doctrine. The beneficiary who challenged the trustees’ accounting and management of the trust prevailed, thus benefiting the trust and all beneficiaries of the trust although only the one beneficiary challenged the accounting and management. As the trust and all of its beneficiaries benefited from the successful challenge, it was appropriate that the attorneys’ fees and expert witness fees be paid and reimbursed from the assets of the entire trust and the shares of each of the beneficiaries thereof.

Note: I used this doctrine after a successful week-long trial in one of my cases.

Thanks for reading this post. If you have found value in this post, I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Every trust situation is different. You do need to consult with professionals about your particular situation. This post is not a solicitation for services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only

Blogs: California trust, estate, and elder abuse litigation and contentious administrations http://californiaestatetrust.com; D&O, audit committee, governance and risk management http://auditcommitteeupdate.com

From Frameworks Institute – Elder Abuse Toolkit

The Frameworks Institute has developed a toolkit which analyzes problems with society’s view of elder abuse and recommends alternative more effective approaches to discussing elder abuse. The following is a link to the Frameworks Institute, Elder Abuse website page, and a screenshot of the initial website page. Best to you – David Tate, Esq.

Here is the link to the Frameworks Institute, Elder Abuse website page, http://frameworksinstitute.org/elder-abuse.html

And the following is a screenshot of the initial website page:

 

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.

 

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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