I heard about this recently – a new situation is arising. I’m just telling you about it. The elder is living in a residential care facility for the elderly, sometimes referred to as a RCFE, or assisted living or board and care. The elder is paying with private money. The assets and money run out. The elder doesn’t have family, or the family doesn’t have money, or the family won’t pay for the elder. Medi-Cal will not pay for a RCFE. In the past, in some situations, going to a nursing home was a last resort as Medi-Cal will pay for the cost of the nursing home. In the past the referral to a nursing home might merely have needed a doctor’s signature. Increasingly, Medi-Cal or its agents or representatives are starting to evaluate whether the elder’s physical, medical or mental conditions actually qualify the elder to be in the nursing home. In other words, if it is decided that the elder’s conditions are not sufficiently bad to qualify the elder to be in the nursing home, Medi-Cal will not pay for the costs of the nursing home, and the elder either will not be allowed initially into the home, or the nursing home and Medi-Cal will want to discharge and force the elder from the nursing home. But in those situations the elder has nowhere that she or he can afford with private pay.
California Board of Equalization proposes to tax death or “memory DVDs” 8.25%, for the discussion click on the following link, Click Here. Enjoy. Dave Tate, Esq. (San Francisco/California) My other blog, director, officer, audit committee, board, risk, governance and compliance, http://directorofficernews.com.
The following is an article about a new Mayo Clinic study, that the primary cause of Alzheimer’s might not be what has generally been thought:
“Amyloid – a sticky, toxic protein found in the brains of Alzheimer’s patients — has been the focus of research and diagnosis for decades. But a new Mayo Clinic study published in the journal Brain shows that another toxic protein, called tau, may be a bigger culprit in cognitive decline and Alzheimer’s over the lifetime of the disease.”
Click on the following link for the article: Click Here.
Many of my cases involve cognitive impairment or decline, whether it be diagnosed or called Alzheimer’s, or dementia, or traumatic brain injury, or lack of mental capacity, or cognitive impairment, or otherwise.
In conservatorships the issue isn’t the diagnosis, but whether the prospective conservatee has the ability to take care of and understand financial and/or daily living tasks and to resist fraud and undue influence?
And in will and trust contests or disputes, the issue is whether the decedent understood his or her assets and the effect of the provisions in the will or trust, and whether the will or trust provisions are what the decedent would have naturally wanted if the decedent had the mental capacity to understand his or her actions and the will or trust provisions, and to resist fraud and undue influence? One additional comment: there is case law that you might not need to wait until after someone dies to contest or seek to invalidate a will or trust – this is an area of law that is developing and that is a positive development.
Dave Tate (San Francisco and California), http://californiaestatetrust.com
Click on the below video for my Top 10 List of Trust and Estate Beneficiary Rights. I have also posted below the video the text of the discussion. And feel free to forward this blog post to anyone who would be interested, including beneficiaries, and trustee and executor fiduciaries. Thank you. Dave Tate (San Francisco and California)
Hello, I’m Dave Tate. I’m a San Francisco, California civil, trust, estate, conservatorship and elder abuse litigation attorney.
After years of practice, the following is my top 10 list of trust and estate beneficiary rights in most situations.
And correspondingly, if you are a trustee or executor with fiduciary duties, satisfying these responsibilities will help put you on a good path. The following list is not in any particular order.
Here are the top 10 trust and estate beneficiary rights.
1st. To have the trustee or executor follow the terms of the trust or will.
2nd. To have the trustee or executor act and interact in the best interests of the beneficiaries.
3rd. For the trustee or executor not to self-deal.
4th. To have the assets go to the people who the Decedent would have intended if the trust or will isn’t clear or doesn’t reflect the Decedent’s true wishes.
5th. For the trustee or executor to prudently invest, spend and maximize the trust or estate assets.
6th. For the trustee or executor to take possession of and safeguard the assets.
7th. For the trustee or executor to timely and prudently manage and administer the trust or estate.
8th. For the trustee or executor to make timely distributions in accord with the terms of the trust or will.
9th. For the trustee or executor to reasonably provide timely information about the trust or estate, the assets and its management, as required. Note, as a beneficiary your requests must be reasonable and appropriate.
And 10th. For the trustee or executor to provide timely and proper accountings, as required.
If you are a trust or estate beneficiary you need to know your rights. Similarly, if you are a trustee or executor, you need to know and satisfy your duties and responsibilities to complete your tasks and avoid problems and possible liability. That’s it for now. Thanks for listening.
Dave Tate, Esq. (San Francisco and California), http://californiaestatetrust.com
The following is a link to a short discussion about possible legislation in Massachusetts to assist with in-home care services and costs, CLICK HERE.
Dave Tate, Esq. (San Francisco / California)
Many types of trust, estate, conservatorship, power of attorney and advance health care directive orders and non-orders can be appealed.
Appeal should be evaluated and taken in appropriate cases, i.e., when appeal is warranted in light of the costs of appeal, the likelihood of success, and the issues or amounts at issue.
And in circumstances where appeal cannot be taken, it might still be possible to obtain appellate court review by writ.
For example, and to help you out, the following are some but not all of the situations where trust orders or non-orders can be appealed, and these also apply to many similar estate related orders:
● Authorizing or approving the sale, lease, encumbrance, purchase, or exchange of property.
● Settling an account of a fiduciary.
● Authorizing or approving the acts of a fiduciary.
● Directing or allowing payment of a debt, claim, or cost.
● Authorizing the payment of compensation or expenses of an attorney.
● Authorizing the payment of the compensation or expenses of a fiduciary.
● Surcharging, removing, or discharging a fiduciary.
● Allowing or denying a petition of the fiduciary to resign.
● Discharging a surety on the bond of a fiduciary.
● An adjudication under Section 850 relating to ownership of property or contract obligations.
● Many orders under Section 17200 relating to the existence and administration of the trust.
● An adjudication of the apportionment of generation skipping transfer tax under Section 20200.
Anyway, and more types of orders can be appealed, but this list will give you an idea of the many types of orders and non-orders that might be appealable in trust and estate proceedings.
Dave Tate, Esq. (San Francisco / California)
The following is a link to an interesting New York Times article dated May 29, 2013, Huguette Clark’s will and estate, and allegations that she was coerced by the hospital where she had been staying for the last 20 years of her lift to donate money and assets to the hospital and to leave the hospital $1 million in her will. Click here for article.
My initial thoughts, based on the information provided by the article. The article does refer to information provided in papers that have been filed with the court, and of course we don’t have those papers which presumably do contain significant information that will be admissible as evidence at the scheduled September trial. Ms. Clark was extremely wealth. Living in a hospital for the last 20 years of her life certainly is unusual. However, the article doesn’t indicate that she lacked capacity to make that decision at least early in her 20-year stay. Ms. Clark had the money to live anywhere that she wanted. Ms. Clark was in bad shape when she first entered the hospital and they treated her back to health. Apparently she felt safe and well-cared for in the hospital.
If Ms. Clark’s family members or friends were concerned about her mental capacity and decision making, or if they were concerned that the hospital was unduly influencing her, the article doesn’t indicate that Ms. Clark was ever conserved by her family members or that there was any attempt to conserve her during the 20 year hospital stay.
Ms. Clark did pay for the cost of her stay at the hospital. The article doesn’t provide information about those costs. The article indicates that Ms. Clark left $1 million to the hospital in her will, that she had donated to the hospital an additional $4 million during the 20 years, and that her estate was worth $300 million on her death. The article also indicates or suggests that the hospital did try to get Ms. Clark to donate additional funds to the hospital. The attorney for the parties who are contesting the will in part stated: “What this is about is not just a will contest, it’s about the accountability of professionals.”
My initial take away based on the information provided in the article (but of course additional information could indicate otherwise): inadequate evidence that Ms. Clark lacked mental capacity, or that she was coerced, and given the amount of her wealth it is arguable that she really wasn’t generous to the hospital but was instead generous to the people and entities who do inherit the majority of her wealth. Given that Ms. Clark had lived at the hospital for 20 years, it would not have surprised me if she had left more to the hospital.