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.
Here’s an interesting development and article from the Los Angeles Times, CLICK HERE, discussing the Obama Administration’s push to use social security and social security information about elder and other beneficiary disabilities and limitations as a means to restrict people from owning guns. Putting aside whether you are pro-gun or anti-gun, I have problems with the use of that information for this purpose from a government mandated program, which information also should be private, how the government would determine that someone is incapable of owning a gun, and that the determination is made without any legal adjudication by an independent court. This effort targets the elderly, people who have been mandated to pay into the social security system, and people with disabilities including disabilities that don’t necessarily establish an inability to own a gun.
Dave Tate, Esq. (San Francisco / California).
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 blog post includes a video about elder and dependent adult abuse, and below the video you will find a link to my PowerPoint slides from a recent elder and dependent adult presentation for an attorney bar association section. Please pass this blog post to everyone who would be interested in these materials. Thank you. Dave Tate, Esq. (San Francisco and California).
Click on the following link for the PowerPoint slides from my elder and dependent adult abuse presentation, ELDER AND DEPENDENT ADULT ABUSE AND PROTECTION PRESENTATION SLIDES
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
Elder and dependent adult financial abuse is on the rise, and within the community resources and coordination are inadequate to address the issue. Adding to that difficulty, the possible indicators of elder and dependent adult financial abuse are numerous – it isn’t possible to provide an exhaustive list of financial abuse indicators – and although in some situations the occurrence of abuse is obvious many times whether actual abuse is occurring, or whether you should suspect that abuse is occurring, really depends upon the facts and circumstances at that time, and how you interpret those facts and circumstances. A legitimate explanation for the occurrence might also exist, or it is possible that the elder or dependent adult simply is making what might be considered to be an unwise decision that isn’t being caused by abuse.
All of the above having been said, it is recognized that there is a community-wide need for the collaboration of people and resources, and a visible discussion about elder and dependent adult financial abuse, how to spot it and what to do when it is suspected. The below list of possible financial abuse indicators is intended to be for helpful discussion purposes, recognizing that each situation must be separately evaluated.
As an overall initial indicator, basically, possible elder or dependent adult financial abuse typically becomes apparent from a financial, asset or property situation that appears to be unnatural or out of character for that elder or dependent adult, or for the typical similar person in society. For the purpose of this discussion, under California law a dependent adult is someone age 18 or older and an elder is someone age 65 or older.
So . . . the following are some of the possible indicators or situations where there is greater opportunity for abuse, including undue influence, to occur, but I am sure that you can also come up with additional indicators.
√ Increased or unusual banking activity.
√ An unusually, or out of the ordinary, large transaction.
√ The purchase of an unusual item or service.
√ Money being paid to or for the benefit of someone out of the ordinary. The person could be a stranger to the elder or dependent adult, a caregiver, a housekeeper, a neighbor, a friend, a gardener, or even a family member.
√ A change in account title or authority.
√ Someone improperly using his or her authority over the elder or dependent adult’s account. Possible a trustee, attorney in fact, co-account holder, family member, “friend” or other person.
√ Unusual credit card transactions or balances.
√ A change in deed or real property or account title or ownership.
√ Unusual ATM activity.
√ Telemarketing and mail fraud; fake prizes; fake accidents; unnecessary purchases or home improvements; getting a windfall upon the payment of money or by providing information.
√ Risky, unnecessary or unusual investments, insurance, warranties or annuities.
√ Unusual people accompanying the elder or dependent adult; new or unusual acquaintances; new “friends,” boyfriends or girlfriends.
√ The elder or dependent adult not speaking for himself, or herself; or some other person directing the elder or dependent adult, the situation or the proposed transaction.
√ The elder or dependent adult acting in a secretive or evasive manner; or perhaps in an overly defensive or hostile manner in response to questions or even in response to typical conversations.
√ The elder or dependent adult being forgetful, disorganized, disoriented, confused, or unaware of his or her surroundings or common events.
√ The elder or dependent adult acting paranoid or fearful about the bank or investment or financial institution, or about his or her accounts.
√ A change in the appearance, actions or demeanor of the elder or dependent adult; social withdrawal; unkempt; or health problems, including what is referred to as self-abuse.
√ The elder or dependent adult being concerned about who will help or assist him or her, or take care of him or her.
√ Expressions of concern, pressure, worry or fear.
√ Excessive payment for a product or subscription, or for services; or payment for an unnecessary product or subscription, or for services.
√ Excessive or unnecessary borrowing by the elder or dependent adult, or someone on his or her behalf.
√ The elder or dependent adult wanting to avoid conversation.
√ Unusual or unnatural will, trust, power of attorney, deed, mortgage or account terms or documents; or unusual or unnatural changes in the terms or conditions of those documents; or the unusual or unnatural selection or nomination of the person to exercise authority in or over those documents.
√ Documents, checks, payments, etc., missing, misplaced or stolen.
√ The elder or dependent adult being evicted, or loss of utilities.
√ The elder or dependent adult becoming isolated from others, either because of other people causing that isolation, or because of the elder or dependent adult’s lack of interest or motivation.
√ Forged, missing, or strange-looking signatures.
√ Changes in financial institution.
√ Changes in account, IRA, or insurance beneficiaries.
√ Unpaid bills.
√ The sudden appearance, assistance or interest of strangers, friends or relatives.
√ New people helping the elder or dependent adult around the house, or with the yard; home improvements.
√ Associating with much younger people.
√ Reluctance to discuss financial matters.
√ The elder or dependent adult’s increasing tiredness, withdrawal or depression.
√ The sudden or unexplained transfer of assets.
* * * * *
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.
We found this in the Daily Republic (Jess Sullivan reporting), Click Here For Article, a Solano County California court has found that the portion of the privately owned land that the county took for a new road was worth more than twice the county’s $575,000 deposit, and in excess of two times the $474,408 value testified to by the county’s second appraiser. And it is likely that the landowner will be entitled to recover attorneys’ fees and costs pursuant to Cal. Code Civ. Proc. sec. 1250.410. See also Gideon’s Trumpet blog for additional discussion, Click Here For Blog.
This information was also posted at http://taterealestatelaw.com.
Dave Tate, Esq. (San Francisco)
I found this article today – discussing that the “system” for financing, i.e., paying for, long-term care is crumbling. Click Here For Article.
I just have to say, that isn’t news. Long-term care is unbelievably expensive. Husbands/fathers, wifes/mothers, and their children have been paying huge costs for long-term care for years. It’s expensive in an outside facility, and at-home care is expensive. And then sometimes there are issues relating to the level or manner of care provided.
I’m not an expert on the financial aspects of the long-term financing programs. But I can hope that at the governmental level we have some legislators who understand it and who have developed a strategy for the long-term sustainability and improvement. But I never hear anything that sounds comforting or impressive.
Dave Tate, Esq. (San Francisco)