The following is a link to a post from Stephanie Peters’ blog titled “Loss for Someone with Dementia.” It is good for me to step back from the day-to-day legal involvement and reflect on the human aspects. And I note Stephanie’s comments about talking, or not, to someone with dementia about the loss of a spouse or other loved one. Here’s the link to Stephanie’s post, CLICK HERE.
Please click on the following link for a worthwhile article by Mehrdad Avati, M.D., in which he discusses mental capacity determinations, different tests, and evaluation. For the article, Click Here
Dave Tate, Esq. (San Francisco and throughout California)
Blogs: trust, estate, conservatorship and elder abuse litigation, and administrations, http://californiaestatetrust.com, and D&O, boards and audit committees, http://directorofficernews.com
Short and sweet. I’m not sure what the wording should be, but we need a law that to some extent protects a person from being disinherited for filing a petition for conservatorship.
The situation that I have in mind: a son or daughter files a petition for conservatorship of their mother or father. In doing so, the son or daughter risks that mom or dad will be very angry with the petition and will seek to change their estate planning to exclude or disinherit the son or daughter. There needs to be some protection for the son or daughter, whether the petition for conservatorship is granted or not.
I’m not saying that I favor conservatorships. A conservatorship can be a serious restriction on a person’s constitutional rights and freedom. All I’m saying is that a son or daughter should not have to fear possible disinheritance for filing a petition for conservatorship in a situation where there is no finding that the petition was filed in bad faith or where there is evidence that a conservatorship might be necessary even if less restrictive options are available.
Dave Tate, Esq. (San Francisco and California), click link to this blog, Law Office of David W. Tate, and also working with Albertson & Davidson LLP, northern and southern California click link to Albertson & Davidson website.
This is a significant category of elder and dependent adult abuse or neglect that generally isn’t discussed or defined. When thinking about elder and dependent adult abuse most of us tend to first think about abuse committed by persons other than the victim, and those perpetrators are typically classified either as outside third party or family perpetrators. Statistically, I have read that approximately 1/3 of the perpetrators are outside third party perpetrators, and about 2/3 of the perpetrators are family members.
But what about self abuse or self neglect. The following is a definition of self neglect from the National Center on Elder Abuse – and then below that definition I have added one area to that description:
“Tragically, sometimes elders neglect their own care, which can lead to illness or injury. Self-neglect can include behaviors such as:
- Hoarding of objects, newspapers/magazines, mail/paperwork, etc., and/or animal hoarding to the extent that the safety of the individual (and/or other household or community members) is threatened or compromised.
- Failure to provide adequate food and nutrition for oneself.
- Failure to take essential medications or refusal to seek medical treatment for serious illness
- Leaving a burning stove unattended
- Poor hygiene
- Not wearing suitable clothing for the weather
- Inability to attend to housekeeping
Self-neglect is one of the most frequently reported concerns brought to adult protective services. Oftentimes, the problem is paired with declining health, isolation, Alzheimer’s disease or dementia, or drug and alcohol dependency.
In some of these cases, elders will be connected to supports in the community that can allow them to continue living on their own. Some conditions like depression and malnutrition may be successfully treated through medical intervention. If the problems are severe enough, a guardian may be appointed.”
See also the discussion about self neglect by the National Clearinghouse on Abuse in Later Life at Click Here.
The area that I would add is financial elder and dependent adult self abuse or neglect – i.e., difficulty or the inability to make sound financial management decisions or choices, also including (1) lack of or difficulty with mental capacity and ability to understand the issues and choices at hand, (2) delay, procrastination or simply not making decisions that need to be made, and (3) also including an already recognized area of abuse by a third party which is the inability to resist the efforts or activities by a perpetrator of financial abuse.
I am seeing an already not insignificant, and an increasing number of materials and articles about elder and dependent adult situations that fit the financial elder and dependent adult self abuse or neglect definition.
These situations can raise a whole host of issues to address, such as how to protect the elder or dependent adult without violating his or her rights, in addition to satisfying personal third party duties and avoiding personal third party liability. A scenario, for example, where you might see this type of situation in the financial category is when the elder or dependent adult goes to consult with his or her banker, investment advisor or financial advisor and the banker or advisor sees or gets a feeling that there are or might be actions or occurrences by the elder or dependent adult that evidence financial elder or dependent adult self abuse or neglect.
Please do pass information about self abuse, this blog and this blog post to other people who would be interested.
Dave Tate, Esq. (San Francisco), Civil Litigation; Trust, Estate, Conservatorship and Elder Abuse Litigation; Trust, Estate and Conservatorship Administration; Representing Fiduciaries and Beneficiaries.
Yesterday I attended the monthly San Mateo County Estate Planning and Probate Section lunch presentation. This presentation was on silent trusts, presented by attorneys Paul Barulich and Matthew Matiasevich. An interesting discussion about the planning, although rather limited planning, that parents can do in California to keep an irrevocable trust private from the beneficiaries, i.e., so that the beneficiaries don’t even know the trust exists. When might trustors desire this type of privacy from beneficiaries? One scenario could be when parents want their children to strive and achieve at least into their twenties without the certain knowledge that they will be receiving substantial trust assets. At least based on responses by attendees, not many estate planning attorneys are preparing silent trusts.
One noted tidbit of information: even if the trust is drafted as a silent trust, trustee/trust duties under California Probate Code sections 16060.7, 16061 and 16061.5 are not waivable. Thus, for example, in some situations the trustee must still provide the terms of the trust and report to the beneficiary by providing information relating to the administration of the trust relevant to the beneficiary’s interest, if the beneficiary requests the trustee to do so. Accordingly, even if a prospective beneficiary does not know that a trust exists, i.e., because the trust is silent, a prospective beneficiary should always ask a suspected trustee to provide information about any trust in which the prospective beneficiary is a beneficiary. Upon that request the trustee must provide some information.
Dave Tate, Esq. (San Francisco / California) – Civil and Estate, Trust, Conservatorship and Elder Abuse Litigation – member of the Estate Planning and Probate Section Executive Committee.
My other blog, http://directorofficernews.com.
The following link will bring you to a publication by the National Institute on Aging entitled The Dementias, Hope Through Research. The publication provides a good overview or background to dementia including types, causes, diagnosis, treatment, etc. For the publication, Click Here.
Dave Tate, Esq. (San Francisco/California)
My other blog, D&O, audit committees, boards, officers, risk management, compliance and governance, http://directorofficernews.com.
An interesting article discussing a finding that antipsychotic drugs for dementia increase the risk of death. I find equally interesting the numbers of elderly who are receiving antipsychotic drugs. Click on the following link for the article, Click Here.
Dave Tate, Esq. (San Francisco)
My other blog for directors, boards, audit committees, officers, CEO’s, CFO’s, risk management, governance and compliance: http://directorofficernews.com
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
(1) Probate Court litigation, for a group of estate planning attorneys, caregivers and fiduciaries, March 26, 2015.
(2) Elder and Dependent Adult Abuse and Protection, for the Riverside estate planning bar, April 16, 2015.
Dave Tate, Esq. (San Francisco and California)
Dementia and how to care for the person who has dementia divides many families. Click on the following link for a good discussion about family dynamics and disagreements. Estate planning documents can help avoid some of the issues – such as power of attorney, health care directive, living will, trust, and other documents. Still disagreements and contests over who will be the decision maker and what care will be provided will persist. I’m reminded of a sibling family dispute case that I was involved in over Mom’s care, her diagnosis and prognosis, whether or not Mom could communicate by blinking her eyes, Mom’s wishes for her quality of life and care, and whether Mom would want to be or should be disconnected from the hospital machine support. Click on the following link for the NBC article, CLICK HERE
Dave Tate, Esq. (San Francisco and California)