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
Conservatorship of Kevin A., California Court of Appeal, Fifth Appellate District, October 2, 2015, Case No. F070914
In the LPS (Lanterman-Petris-Short Act) conservatorship of Kevin A. the Court of Appeal held that the proposed conservatee, Kevin A., was denied his right to a jury trial where he objected to the petition for conservatorship and he personally expressed his request for a trial by jury, but the Court nevertheless proceeded to determine the matter without a jury. Here is a copy of the Opinion, Conservatorship of Kevin A. Opinion from Court Website
In relevant part, the Court held as follows:
- In a situation where a proposed conservatee objects to or contests the petition for conservatorship, the right to proceed before a jury at trial, as opposed to an adjudication by the Court, rests completely with the proposed conservatee, not with the proposed conservatee’s attorney or the Court, unless the Court first finds that there is substantial evidence that the proposed conservatee lacks the capacity to decide for himself or herself whether to proceed before a jury.
- In Kevin A. the Court made no specific finding that Kevin A. lacked capacity to decide for himself whether to proceed before a jury.
- Alternatively, if the Court determines that there is substantial evidence that the proposed conservatee lacks the capacity to decide whether to proceed before a jury, the control of the decision whether to demand or waive the right to a jury belongs to the proposed conservatee’s attorney, despite the proposed conservatee’s objection.
- Regardless of the fact that a proposed conservatee suffers from mental illness or related disorders, those conditions preclude any categorical inference that the proposed conservatee is unable to make a decision regarding whether to demand or waive a jury trial.
In a LPS conservatorship the petitioner, not the proposed conservatee, has the burden of proving that the conservatorship should be granted. Here’s an interesting question: since in a LPS conservatorship an adjudication by a jury to grant the petition for conservatorship must be unanimous, in the situation where the proposed conservatee is objecting to or contesting the need for the conservatorship, would there be a strategic advantage for the proposed conservatee to demand a jury trial instead of proceeding before the single judge?
Next question, how, if at all, does the holding or reasoning in Kevin A. also impact or relate to general probate conservatorship proceedings under California Probate Code §§1800, et seq.? In summary, for the reasons discussed below, it appears that the reasoning in Kevin A. would similarly apply in general probate conservatorship cases and the proposed conservatee’s right to decide whether to proceed before a jury in those cases.
In a general probate conservatorship the proposed conservatee also has the right to demand a jury trial on the issue whether or not the conservatorship should be granted. Probate Code §1828(a)(6). Additionally, in a general probate conservatorship both the court investigator and the Court are required by statute to inform the proposed conservatee about a number of his or her legal rights, including, or example, his or her rights to object to the petition for conservatorship, and to decide whether or not to have a jury trial. See Probate Code §§1826 and 1828.
Both LPS and general probate conservatorships also follow the normal rules of civil procedure. Probate Code §§1000, 1827 and 2100; Welfare and Institutions Code §5350. In fact, although the LPS conservatorship statutory provisions are provided for under the California Welfare and Institutions Code (see W&I Code §§5000, et seq.), the Court in Kevin A. stated as follows, recognizing that the procedure for establishing a LPS conservatorship is also the procedure that is used for establishing a general probate conservatorship:
“Section 5350 provides, in relevant part, the “procedure for establishing, administering, and terminating a conservatorship under this chapter shall be the same as that provided in Division 4 (commencing with Section 1400) of the Probate Code ….” Probate Code section 1827 provides: “The court shall hear and determine the matter of the establishment of the conservatorship according to the law and procedure relating to the trial of civil actions, including trial by jury if demanded by the proposed conservatee.” Section 1828 of the Probate Code requires the court to “inform the proposed conservatee” of his or her “right to oppose the proceeding, to have the matter of the establishment of the conservatorship tried by jury, to be represented by legal counsel if the proposed conservatee so chooses, and to have legal counsel appointed by the court if unable to retain legal counsel.” (Prob. Code, § 1828, subd. (a)(6).) Thereafter, the court must “consult the proposed conservatee to determine the proposed conservatee’s opinion” regarding the “establishment of the conservatorship,” the “appointment of the proposed conservator” and any limitation to his or her legal capacities. (Prob. Code, § 1828, subd. (b)(1)-(3).)”
Similar to a LPS conservatorship, in a general probate conservatorship it is also the burden of the petitioner to prove that there is a need for a conservatorship, i.e., that the petition for conservatorship should be granted. Although the amount or degree of proof that is required to prove that a conservatorship should be granted is different in a LPS conservatorship than it is in a general probate conservatorship, beyond a reasonable doubt compared to clear and convincing evidence, respectively, and a LPS generally is probably thought of as being a more serious type of conservatorship, an argument can be made that a general probate conservatorship could be an equally or even more serious type of conservatorship because the LPS conservatorship lasts for one year, at which time it must be renewed, whereas the general probate conservatorship lasts until it is either modified by Court order or the conservatee dies. Additionally, in general probate conservatorships the conservator and the Court also are or might be making decisions relating to the conservatee’s personal freedoms and restrictions, placement including possible locked or restricted facilities, and medications.
Conservatorship cases are numerous in number and involve important rights, but relatively speaking there have been very few appellate-level court decisions involving conservatorships. And, although I don’t have the statistics, if the statistics even exist, there are very few jury trials in contested general probate conservatorships – jury trials are not encouraged although the proposed conservatee has that absolute right. Further, whereas there are Judicial Council jury instructions for LPS conservatorships (see CACI 4000-4013), jury instructions for general probate conservatorship jury trials are not provided, although you can find a sample jury instruction that I wrote at http://wp.me/p1wbl8-8Q
Having more jury trials in conservatorship proceedings is a mixed bag. We have been primarily discussing the rights of the proposed conservatee because in fact it is only those rights that are being variously protected or restricted in general probate conservatorship proceedings. But requiring or having more jury trials in contested general probate conservatorships to a certain extent does put more burden on the Court system – seating a jury and conducting a jury trial does take more time. And if they had a choice, the majority of the parties who find themselves petitioning for the establishment of a conservatorship logically might greatly prefer to not have to incur the additional time, expense, and uncertainty that a jury trial can cause. Some people might also argue that having to seat a jury in some or perhaps even in many conservatorship cases could be wasteful of resources or should be unnecessary where it might appear evident beforehand and even prior to trial that some form of assistance or conservatorship might be helpful or granted. Nevertheless, those arguments could be made in every case, whether civil, criminal or probate, where a party has a right to decide whether to proceed before a jury, and at law do those arguments overlook the proposed conservatee’s acknowledged legal and procedural protections and rights?
Following the reasoning in Kevin A. and viewing the proposed conservatee’s personal and procedural rights from a legal prospective, in a contested general probate conservatorship, unless the Court determines that there is substantial evidence that the proposed conservatee lacks the capacity to decide whether to proceed before a jury, the decision whether to have a jury trial rests with the proposed conservatee. And arguably in some cases it might be strategically advantageous for the proposed conservatee to demand a jury if the proposed conservatee could have a better chance of prevailing compared to when the adjudication is being made by the single judge.
And one last final question or issue: in both LPS and general probate conservatorships, has it been sufficiently explained to the proposed conservatee not only what the petition requests and that he or she has the right to agree to or to oppose the conservatorship, but also that he or she has the right to a jury trial and whether a jury trial could present advantages or disadvantages in that specific case?
Dave Tate, Esq., San Francisco and throughout California
California Revocable Transfer On Death Deeds – 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.
P.S., and another “bad” passed along by a friend on LinkedIn – the transferred property might be (most likely is) subject to recovery by Medi-Cal to reimburse the state for expenses paid by Medi-Cal for care during the transferor’s life – in other words, use of the revocable transfer on death deed might not be (most likely isn’t) wise Medi-Cal planning. But I don’t believe many people will be aware of that. The ability to transfer property by way of the revocable transfer on death deed also is not available for all types of property – that is, for some properties the use of the deed is not available. Everyone using or potentially using the revocable transfer on death deed needs to be aware of all of the options available including when it might be used, when it cannot be used, and the results of both. My recommendation: seek knowledgeable legal counsel.
Text: California Revocable Transfer On Death Deeds
Hello, I’m Dave Tate. I’m a civil and trust, estate, conservatorship and elder abuse litigation attorney. I practice in San Francisco and throughout California. I also represent fiduciaries and beneficiaries in administrations.
This discussion is about the new California revocable transfer on death deed. You can find additional information on my blog at http://californiaestatetrust.com.
You may have heard that California now recognizes a new revocable transfer on death deed for transferors who die on or after January 1, 2016. There are statutory requirements however. And here are a few of them.
The deed must appropriately identify the beneficiary or beneficiaries.
The transferor must sign and date the deed and have the deed acknowledged before a notary public.
The deed must be recorded on or before 60 days after the date that is was executed.
The transferor must have the mental capacity to contract.
If the deed is still valid and not revoked or otherwise overruled or superseded by another document, on the death of the transferor the property passes to the named beneficiary or beneficiaries without probate.
I expect that the revocable transfer on death deed will become a popular estate distribution transfer tool if the public is extensively educated about its availability and use.
The deed is promoted as an opportunity to transfer real property on death without having to incur the costs of having a will or trust prepared, or probate. That’s the opportunity for good.
On the other hand, the deed also presents opportunities for mistake and elder abuse.
The validity and operation of a revocable transfer on death deed are subject to statutory rules and requirements. Very importantly, these are rules and requirements that can be misunderstood, resulting in mistakes and unintended consequences.
As you might imagine, use of the deed also presents issues relating to intent and transferor lack of mental capacity, and opportunities for undue influence, fraud, duress, and elder abuse by family members, friends and third parties.
The validity of the deed can be contested. And I do expect that there definitely will be contests. So we will be seeing how these new revocable transfer on death deeds are used and abused.
That’s it for now. There are of course other cases and statutory provisions 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.
P.S., please see also the comment above at the top of this blog post about recovery of the property to reimburse Medi-Cal for expenses paid, and that the ability to transfer property by way of the revocable transfer on death deed also is not available for all types of property – that is, for some properties the use of the deed is not available. Everyone using or potentially using the revocable transfer on death deed needs to be aware of all of the options available including when it might be used, when it cannot be used, and the results of both. My recommendation: seek knowledgeable legal counsel.
Dave Tate, Esq. (San Francisco / California)
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)
Please also forward this blog post to anyone else who would be interested. At the request of friends I have also posted below the video the text of the discussion. Thank you. Dave Tate
California Trustees – What Would Keep Me Up At Night – February 2015
Hello I’m Dave Tate. I’m a San Francisco litigation attorney and I also represent trustees in trust administrations. This discussion is for California trustees, and what would keep me up at night February 2015.
Trustee responsibilities are extensive and they arise from different sources including the wording of the trust itself, statutes and case law. Of course you have to cover all areas of your trustee responsibility, but here is my list of primary issues that would keep me up at night as a trustee. This list is not in any particular order.
First, do you understand what the trust says and requires?
Second, have you marshalled and safeguarded the assets that are in or that are supposed to be in the trust? Are they in the trust and under your control?
Third, do you really understand your legal responsibilities including the wording and requirements in the trust, what the probate code and case law require of you? As a trustee you are a fiduciary. You have one of the highest standards of care, responsibility, liability and unbiased fairness and good faith required by law.
Fourth, are the trust assets being invested, managed and recorded properly and prudently? You need to evaluate and manage the returns and the risks, in accord with the wording of the trust and your fiduciary duties. So, for example, the stock market goes up and down. If the market goes down, is your approach to the portfolio management designed to help you avoid liability for losses?
Next, do you have the proper fiduciary demeanor and decision making approach required of a trustee?
Sixth, is the trust cash flow prudently managed? You might, for example, through no fault of your own have a trust with declining asset values or liquidity issues.
Next, do you know what to do if you have beneficiaries who are disagreeing with your decisions, or who are threatening litigation?
Eighth do you know what information you must or possibly should provide to the beneficiaries?
Ninth, do you understand that you have personal liability exposure for the actions that you take or don’t take as the trustee? You are required to be prudent with risk management. Also consider possible fiduciary insurance coverage although in most situations it isn’t required.
And last on this list, when necessary do you consult with professionals to advise you on your fiduciary duties and trust administration management?
That’s it for now. You can find more information at http://californiaestatetrust.com Thanks for listening.
Link to long-term insurance article, Click Here. Enjoy.
Dave Tate, Esq. (San Francisco)