BATNA doesn’t get you to settlement or resolution – instead, looking for answers does –

BATNA is an acronym that stands for Best Alternative To a Negotiated Agreement. It is defined as the best or most advantageous alternative that a negotiating or mediating party can take or has if negotiations and reaching settlement or resolution are failing or are not moving forward and if it is believed that settlement is breaking down cannot be reached. BATNA was presented in the book Getting to YES: Negotiating Agreement Without Giving In (first published in 1981), and it continues to be used as a consideration that a negotiating or mediating party can and should use when deciding whether or not to engage in negotiation or mediation, or whether or not to continue negotiating or mediating when things seem to have stalled or reached an impasse.

Whereas considering BATNA (i.e., why a party should negotiate or keep negotiating) is a good means of moving the parties or a party back from a precipice or position wherein negotiations or mediation breakdown or breakdown at least temporarily, BATNA doesn’t get you to settlement – instead, moving beyond or back from BANTA, being openminded, continuing to explore options, looking for answers, considering the negatives and unknowns, and moving forward toward resolution do move the parties toward settlement and resolution or at least in part on some of the issues.

Thus, the parties, and the mediator need to consider the toolbox of options, and approaches and ways for the parties to continue talking and moving forward from the current position and from their current positions toward resolution or resolutions.

Parties can move off of their positions – or can be willing or induced to move off of their positions, by any number of means, such as, for example:

Persuasion;

Moving within the or their perceived global range of options;

Expanding the or their global range of options;

Disclosing or making known more about or what was previously known about their global range of options;

Force or threat, so to speak;

Changed circumstances;

Optics or disclosure to or about outside stakeholders or influencers;

Additional examination, discovery, evidence or related information, documents, or disclosure;

Additional understanding about the applicable law, burdens of proof, and presumptions;

Additional information about the possible trier of fact; and

More – that is, the long list depends on the particular situation at issue.

Best to you. David Tate, Esq. (and inactive CPA)

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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.

My two blogs are:

Business, D&O, audit committee, governance, compliance, etc. http://auditcommitteeupdate.com

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

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, Workplace, Investigations, Other Areas

Conservatorship of the Estate of Brokken – Probate Court could not award attorneys’ fees when a conservator was not appointed – plus Tate comments, and a video about mediating conservatorship disputes and cases

Conservatorship of the Estate of Brokken, California Court of Appeal, Second Appellate District Division Six (March 15, 2021) 2d Civ. No. B303898 (Super. Ct. No. 17PR00194) (Santa Barbara County).

Summary. A petition for the conservatorship of Doris Mae Brokken was filed by her adult children over Doris’ strong objection. It was alleged that Doris suffered from ongoing mental health issues and that her behavior had become increasingly erratic. After two years of litigation and negotiation, the parties settled the matter without the need for a conservatorship. Doris voluntarily agreed to engage in professional mental health services and the petition was dismissed. The petitioners sought to recover their attorney fees as part of the settlement. Doris did not believe they were legally entitled to fees, but to facilitate settlement, she agreed to let the Probate Court decide whether the petitioners are entitled to fees and, if so, the amount of such fees. Petitioners filed a petition requesting the Probate Court to award them attorneys’ fees under Cal. Probate Code §2640.1. Doris opposed the petition. The Court awarded attorneys’ fees. Doris appealed the Court’s decision. On appeal, the Court of Appeal held that petitioners could not petition for an award of attorneys’ fees because no conservator (temporary or permanent) was appointed, and that §2640.1 applied, if at all, only if a conservator is appointed.

I have pasted copies of both Probate Code §§2640.1 and 2640 below.

Takeaway. Brokken is both legally and factually specific. The case does highlight one of the risks that a petitioner takes when filing a petition for conservatorship, i.e., attorneys’ fees incurred. The petitioners would have been able to petition for the recovery of attorneys’ fees if a temporary or permanent conservator was appointed; however, even in that circumstance the Court would have had discretion over the amount of fees to award. An additional difficulty for the petitioners was that Doris would not agree to the recovery of attorneys’ fees in the settlement agreement.  

If Doris had agreed to the recovery of attorneys’ fees in the settlement agreement, and if a petition for Court approval of the settlement agreement had been filed, would the Court have approved the attorneys’ fees? We don’t know. However, and assuming that the settlement agreement did not specify the fees pursuant to §2640.1, my view is that the Court probably would have approved the settlement because the fees would have been agreed upon in the settlement agreement which is a contract.

If Doris had agreed to the recovery of attorneys’ fees in the settlement agreement, but then suit had to be brought to enforce the settlement agreement, would the Court have enforced the payment of attorneys’ fees? Again, we don’t know. However, and assuming that the settlement agreement did not specify the fees pursuant to §2640.1, again my view is that the Court probably would have enforced payment of the fees because the fees would have been agreed upon in the settlement agreement which is a contract.

There are a lot of moving parts in a conservatorship case. You will find other posts about conservatorships in this blog. Here is a link to a copy of a video about mediating conservatorship disputes and cases https://californiaestatetrust.com/2020/08/15/video-you-can-resolve-and-settle-your-convervatorship-dispute-and-case-dave-tate-esq-litigation-disputes-and-mediator-california/

Below I have pasted copies of both Probate Code §§2640.1 and 2640.

California Probate Code §2640.1

(a) If a person has petitioned for the appointment of a particular conservator and another conservator was appointed while the petition was pending, but not before the expiration of 90 days from the issuance of letters, the person who petitioned for the appointment of a conservator but was not appointed and that person’s attorney may petition the court for an order fixing and allowing compensation and reimbursement of costs, provided that the court determines that the petition was filed in the best interests of the conservatee.

(b) Notice of the hearing shall be given for the period and in the manner provided in Chapter 3 (commencing with Section 1460) of Part 1.

(c) Upon the hearing, the court shall make an order to allow both of the following:

(1) Any compensation or costs requested in the petition the court determines is just and reasonable to the person who petitioned for the appointment of a conservator but was not appointed, for his or her services rendered in connection with and to facilitate the appointment of a conservator, and costs incurred in connection therewith.

(2) Any compensation or costs requested in the petition the court determines is just and reasonable to the attorney for that person, for his or her services rendered in connection with and to facilitate the appointment of a conservator, and costs incurred in connection therewith.

Any compensation and costs allowed shall be charged to the estate of the conservatee. If a conservator of the estate is not appointed, but a conservator of the person is appointed, the compensation and costs allowed shall be ordered by the court to be paid from property belonging to the conservatee, whether held outright, in trust, or otherwise.

(d) It is the intent of the Legislature for this section to have retroactive effect.

(Amended by Stats. 2006, Ch. 493, Sec. 28. Effective January 1, 2007.)

California Probate Code §2640

(a) At any time after the filing of the inventory and appraisal, but not before the expiration of 90 days from the issuance of letters or any other period of time as the court for good cause orders, the guardian or conservator of the estate may petition the court for an order fixing and allowing compensation to any one or more of the following:

(1) The guardian or conservator of the estate for services rendered to that time.

(2) The guardian or conservator of the person for services rendered to that time.

(3) The attorney for services rendered to that time by the attorney to the guardian or conservator of the person or estate or both.

(b) Notice of the hearing shall be given for the period and in the manner provided for in Chapter 3 (commencing with Section 1460) of Part 1.

(c) Upon the hearing, the court shall make an order allowing (1) any compensation requested in the petition the court determines is just and reasonable to the guardian or conservator of the estate for services rendered or to the guardian or conservator of the person for services rendered, or to both, and (2) any compensation requested in the petition the court determines is reasonable to the attorney for services rendered to the guardian or conservator of the person or estate or both. The compensation allowed to the guardian or conservator of the person, the guardian or conservator of the estate, and to the attorney may, in the discretion of the court, include compensation for services rendered before the date of the order appointing the guardian or conservator. The compensation allowed shall be charged to the estate. Legal services for which the attorney may be compensated include those services rendered by any paralegal performing legal services under the direction and supervision of an attorney. The petition or application for compensation shall set forth the hours spent and services performed by the paralegal.

(d) Notwithstanding subdivision (c), the guardian or conservator shall not be compensated from the estate for any costs or fees that the guardian or conservator incurred in unsuccessfully opposing a petition, or other request or action, made by or on behalf of the ward or conservatee, unless the court determines that the opposition was made in good faith, based on the best interests of the ward or conservatee.

(e) Notwithstanding subdivision (c), the guardian, conservator, or attorney shall not be compensated with any government benefits program moneys unless deemed by the court as necessary to sustain the support and maintenance of the ward or conservatee, but in no event may this exceed the amount permitted by federal laws and regulations.

(Amended by Stats. 2019, Ch. 847, Sec. 6. (SB 303) Effective January 1, 2020.)

Best to you. David Tate, Esq. (and inactive CPA)

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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.

My two blogs are:

Business, D&O, audit committee, governance, compliance, etc. http://auditcommitteeupdate.com

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

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, Workplace, Investigations, Other Areas

With All Eyes on COVID-19, Drug-Resistant Infections Crept In – Important for Nursing Homes and Elder Care

I am forwarding a Yahoo news article link (see below) – I take no credit or responsibility for the article. For nursing homes this falls in the categories of resident safety, care and infection risk management processes, liability exposure, board and committee oversight, and persons-in-charge responsibilities (CEO/President, Medical Director, Director of Nursing, etc.). Good for family councils to know, ask about, and follow up on. It’s not just COVID and the new and increasing variants.

https://news.yahoo.com/eyes-covid-19-drug-resistant-194626483.html

Best to you. David Tate, Esq.

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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

As the mediator – I facilitated a trust dispute settlement yesterday (and into the night)

Success stories are good to report. As the mediator I helped the parties and their counsel reach settlement in a trust dispute case yesterday and last night. I cannot say anything specific about the case or the mediation, of course. There were multiple contentious issues about which the parties held strong viewpoints. But all of the parties and their counsel prepared well for the mediation and kept working toward resolution into the night. The parties and their counsel are to be congratulated for their successful resolution – and they will be much better off and happier having resolved their dispute.

Best to you. David Tate, Esq.

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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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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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Video – Dave Tate, Esq. Mediator Qualifications and Experience Introduction – California

Greetings to all of my friends, colleagues, and connections, and other people who are interested – below is a short video discussing my mediator qualifications and experience – please contact me if I can help you settle your case or dispute. Best to you, Dave Tate

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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

* * * * *

Focus on nursing homes and COVID-19: COVID-19 clinical trials in nursing homes, and California seizes control of two nursing homes

Below I have provided links to two nursing home articles – the first article discusses conducting COVID-19 clinical trials in nursing homes, and the second article discusses California seizing control of two nursing homes due to COVID-19. I have also provided a few of my additional comments.

Click on the link below for the first article which discusses COVID-19 clinical trials being conducted in nursing homes, and some of the clinical-related difficulties that are presented when conducting trials in nursing homes. I will add one difficulty that is not discussed: the need to obtain voluntary, knowledgeable resident consent to being a clinical trial subject! One would have to ask, is the particular resident capable of giving informed consent to participate in the clinical trial? And/or, was informed consent obtained from the resident’s attorney in fact or other decision maker – and can that person provide informed consent without first obtaining instructions from a court? If neither of the two above consents were obtained, who provided consent – the nursing home and/or the medical director and/or the director of nursing? Frankly, each of these “consent” scenarios raises significant red flags that must be evaluated on a resident by resident basis. Here is the link to the article: https://skillednursingnews.com/2020/08/eli-lilly-launches-covid-19-clinical-trial-in-nursing-homes-with-symphony-as-partner/

Click on the following link for this second article which discusses California seizing control of two nursing homes due to COVID-19 and resident risk. https://patch.com/california/southsanfrancisco/s/h6jy2/how-ca-seized-control-2-troubled-nursing-homes-covid-19-loomed. Note that I have not provided this link because of the fact that California seized the two nursing homes – instead, I have included this article because of the discussion indicating or suggesting that state oversight of nursing homes and resident care and conditions is sadly lacking. Assisted living and nursing home facilities and businesses provide and are required to provide residences, and care and daily living need services to and for some of the most needy, dependent and vulnerable members of our society, and many people in those facilities don’t have family members or friends who are available to advocate for and take actions that are in the resident’s best interests. Inadequate oversight adds to the residents’ risks.

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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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Working on Slides and a Video – You Can Resolve and Settle Your Conservatorship Dispute, Issues and Case

Dave Tate, Esq. (San Francisco and California) – dave@tateattorney.com – Litigation, Governance, Administrations, Investigations, Mediator & Conflict Resolution

Greetings All: I am working on some materials (slides and an anticipated video) which I have titled: You Can Resolve and Settle Your Conservatorship Dispute, Issues and Case. I am aiming for the materials will be completed by the beginning of next week.

In a conservatorship there are a lot of potential moving parts and issues, and relationships, and they can be present before the initiation of a conservatorship petition, during the initial petition stage, and at all later times including during review of a conservatorship that has been approved – for example, below are some of the potential moving parts, issues and relationships:

  • Are there options that are less restrictive than a conservatorship?
  • Is or will it be a conservatorship of the estate?
  • Is or will it be a conservatorship of the person?
  • Does the conservatee have or need an attorney?
  • Will it be a court trial or a jury trial?
  • Is who the conservator will be an issue?
  • Are there placement or housing issues?
  • Are there medical care and treatment, or related capacity issues?
  • Are there medication issues?
  • Are there daily living needs issues?
  • Are there caregiver issues?
  • Are there other issues re the proposed/conservatee’s capacity?
  • Are there conservator special power issues?
  • Who are all of the people who are involved in the dispute or unresolved issues?
  • Are there relationship issues between the people who are involved?
  • Are there spouse or domestic partner, or girlfriend or boyfriend issues?
  • Are there visitation issues?
  • Are there elder or dependent adult about issues – financial, physical, undue influence, emotional, abandonment, etc.?
  • Are there liquidity or sufficiency of assets issues?
  • Are there estate planning or benefits needs?
  • Are there voting issues?
  • Are there married or marrying issues?
  • What facts and circumstances and issues are fluid, i.e., changing (undoubtedly some are)?
  • What options are available for each of the issues that are in dispute or are unresolved?
  • And also consider the other areas, and related issues, from my mediation and conflict resolution hexagon matrix.

Best to you, Dave Tate, Esq. (San Francisco and California) – dave@tateattorney.com

Litigation, Governance, Administrations, Investigations, Mediator & Conflict Resolution

———————————————————————-

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 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

* * * * *

 

More On Banks Taking Actions In Response To Suspected Or Actual Financial Elder Abuse

David W. Tate, Esq., San Francisco and California – dave@tateattorney.com

Below I have provided a link to an ABA Banking Journal article discussing bank efforts to protect order Americans from financial abuse.

In addition to other steps, the article states “When elder fraud is suspected, banks most commonly respond by flagging the account for further monitoring (82%), reporting the incident to adult protective services (81%) and closing existing accounts and opening new ones for the customer (68%).” The article also states that ” . . . an overwhelming majority of banks – 80% – said they place holds on suspicious transactions . . . . ”

The following is a snapshot of a paragraph in the article – discussing that “about half of the banks said they have procedures in place to offer the account-holders the opportunity to consent to have their account information disclosed to a designated financial caregiver.”

I have previously written some of my views about procedures for preventing, stopping, and remedying financial (and physical) elder abuse. Placing a hold on an account is a good temporary step to safeguard and preserve the account. Reporting the incident to adult protective services or another accepted organization is another good step and is required by law in many circumstances (California, for example, has mandated reporting requirements in circumstances that are described in the applicable statutes relating to financial abuse, and also for or relating to physical and other types of abuse – I have written about and presented talks on these topics). Encouraging an account holder to designate a trusted person who the bank can call when the bank sees suspicious activities also is a good step. And, of course, training on these topics should be ongoing.

All of the above actions are good first steps. Then the really hard and time consuming part starts, and it typically must involve good family members and friends as, given the large numbers of financial elder abuse, the banks, adult protective services, the district attorney’s offices, and the police do not have the resources to pursue most situations for the long haul. An elder typically believes that the perpetrator is a good and trustworthy person or business or other entity, and I can tell you that it is amazing how persistent a perpetrator of financial elder abuse can be – in situations where a typical person would willingly exit the situation or agree to restrictions and limitations, and even repayment, it can be amazing for how long a perpetrator of financial elder abuse will persist. And also be mindful that we have only been discussing bank situations and responses, whereas the great majority of financial elder abuse will not be visible to or noticed by a bank.

Below is a link to the complete article:

Survey: Banks Ramp Up Efforts to Protect Older Americans from Financial Abuse

Best to you, Dave Tate, Esq. (San Francisco and California) – dave@tateattorney.com

———————————————————————-

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 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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