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 what 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: 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

———————————————————————-

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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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

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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.

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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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

* * * * *

 

IT’S A GOOD TIME FOR NURSING HOME AND RESIDENTIAL CARE FACILITY FAMILY COUNCILS TO GET ACTIVE

California nursing homes and residential care facilities must permit, and assist, family councils. You can refer to California Health and Safety Code §§1418.4 and §1569.158. An active family council can be effective in improving care at the facility.

With respect to nursing homes, in relevant part, §1418.4(g) states that “The facility shall consider the views and act upon the grievances and recommendations of a family council concerning proposed policy and operational decisions affecting resident care and life in the facility,” and §1418.4(h) states that “The facility shall respond in writing to written requests or concerns of the family council, within 10 working days.”

And with respect to residential care facilities, in relevant part, §1569.158(f) states “If a family council submits written concerns or recommendations, the facility shall respond in writing regarding any action or inaction taken in response to the concerns or recommendations within 14 calendar days.”

The above wording is very broad as to the types of issues, grievances, concerns and recommendations that a family council might consider and raise with the facility.

Thus, for example, obviously facilities should have already reviewed their policies and procedures to prevent, minimize and remedy illnesses at the facility. Click on the following link  https://wp.me/p1wbl8-vG for my blog post entitled “An illness spreads through a nursing home . . . some of the possible issues and legal issues to evaluate . . .”

1.  Is the risk management and compliance program well designed, and how does the facility know that?

2.  Is the risk management and compliance program being implemented effectively, and how does the facility know that?

3.  Does the risk management and compliance program work in practice, and how does the facility know that?

Obviously the above 3 points are major considerations for which the facility would need to effectively and extensively drill down into the details.

Best to you, Dave Tate, Esq. (San Francisco and California)

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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.

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.

Mediations and Services as a Mediator

* * * * *

 

New Case – Estate of Ashlock – relating to Probate Code Section 859 recovery of “twice the value of the property recovered”

On March 3, 2020, the California Court of Appeal, Fifth Appellate District, in Estate of Ashlock, Case No. F078083, issued a new Opinion, part of which was certified for publication, in the long-running battle involving the Estate of Lonnie Lamont Ashlock, Stacey Carlson and Gabriel Ashlock. These are hotly litigated cases. There have been several prior appellate Opinions issued, most of which are unpublished. Indeed, only a small part of the March 3, 2020, Opinion is certified for publication.

These cases involve trust, will, partnership, alleged forgery, alleged breach of fiduciary duty, instrument/document contests, and other issues, also including California Probate Code Sections 850-859.

The holding in the published part of the March 3, Opinion is that Probate Code Section 859 provides for recovery of the actually recovered property plus twice (or two times, or double) the value of the recovered property. As noted in the Opinion, California Appellate Court’s have interpreted the wording of Section 859 in different ways. For example, one Court has interpreted the Section as stating that the recovery of twice (or two times, or double) the value means the recovery of the actual property plus the value of the recovered property. For example, if the recovered property has a value of $1,000, under the first scenario (and in accord with the Opinion in Estate of Ashlock) the recovery would be the property ($1,000) plus an additional $2,000 (twice the value of the property), whereas under the second scenario the recovery would be the property ($1,000) plus an additional $1,000.

An increasing number of cases involve claims under Probate Code Sections 850-859. Unfortunately, and surprisingly, there are few appellate cases that interpret those code sections or that apply different fact situations to those code sections. It is my view that particularly with respect to Sections 850 and 859 it would have been helpful if the Legislature had made some of the wording and provisions more clear. Many of my cases involve Probate Code Sections 850-859.

For your ease of reference, below I have pasted the current wording of California Probate Code Sections 850 and 859.

Section 850

(a) The following persons may file a petition requesting that the court make an order under this part:

(1) A guardian, conservator, or any claimant, in the following cases:

(A) Where the conservatee is bound by a contract in writing to convey real property or to transfer personal property, executed by the conservatee while competent or executed by the conservatee’s predecessor in interest, and the contract is one that can be specifically enforced.

(B) Where the minor has succeeded to the interest of a person bound by a contract in writing to convey real property or to transfer personal property, and the contract is one that can be specifically enforced.

(C) Where the guardian or conservator or the minor or conservatee is in possession of, or holds title to, real or personal property, and the property or some interest therein is claimed to belong to another.

(D) Where the minor or conservatee has a claim to real or personal property title to or possession of which is held by another.

(2) The personal representative or any interested person in any of the following cases:

(A) Where the decedent while living is bound by a contract in writing to convey real property or to transfer personal property and dies before making the conveyance or transfer and the decedent, if living, could have been compelled to make the conveyance or transfer.

(B) Where the decedent while living binds himself or herself or his or her personal representative by a contract in writing to convey real property or to transfer personal property upon or after his or her death and the contract is one which can be specifically enforced.

(C)Where the decedent died in possession of, or holding title to, real or personal property, and the property or some interest therein is claimed to belong to another.

(D) Where the decedent died having a claim to real or personal property, title to or possession of which is held by another.

(3) The trustee or any interested person in any of the following cases:

(A) Where the trustee is in possession of, or holds title to, real or personal property, and the property, or some interest, is claimed to belong to another.

(B) Where the trustee has a claim to real or personal property, title to or possession of which is held by another.

(C) Where the property of the trust is claimed to be subject to a creditor of the settlor of the trust.

(b) The petition shall set forth facts upon which the claim is based.

(Added by Stats. 2001, Ch. 49, Sec. 1. Effective January 1, 2002.)

Section 859

If a court finds that a person has in bad faith wrongfully taken, concealed, or disposed of property belonging to a conservatee, a minor, an elder, a dependent adult, a trust, or the estate of a decedent, or has taken, concealed, or disposed of the property by the use of undue influence in bad faith or through the commission of elder or dependent adult financial abuse, as defined in Section 15610.30 of the Welfare and Institutions Code, the person shall be liable for twice the value of the property recovered by an action under this part. In addition, except as otherwise required by law, including Section 15657.5 of the Welfare and Institutions Code, the person may, in the court’s discretion, be liable for reasonable attorney’s fees and costs. The remedies provided in this section shall be in addition to any other remedies available in law to a person authorized to bring an action pursuant to this part.

(Amended by Stats. 2013, Ch. 99, Sec. 1. (AB 381) Effective January 1, 2014.)

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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.

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, 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 and beneficiaries; 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
  • 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 and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards

The following are copies of the tables of contents of three of the more formal materials that I have written over the years about accounting/auditing, audit committees, and related legal topics – Accounting and Its Legal Implications was my first formal effort, which resulted in a published book that had more of an accounting and auditing focus; Chapter 5A, Audit Committee Functions and Responsibilities, for the California Continuing Education of the Bar has a more legal focus; and the most recent Tate’s Excellent Audit Committee Guide (February 2017) also has a more legal focus:

Accounting and Its Legal Implications

Chapter 5A, Audit Committee Functions and Responsibilities, CEB Advising and Defending Corporate Directors and Officers

Tate’s Excellent Audit Committee Guide

The following are other summary materials that you might find useful:

An internal investigation summary overview page from a prior blog post which you can find at https://wp.me/p75iWX-dk if the below scan is too difficult to read (and you will also find other posts about investigations on my blog):

 

OVERVIEW OF A RISK MANAGEMENT PROCESS THAT YOU CAN USE 03162018

Audit Committee 5 Lines of Success, Diligence, and Defense - David Tate, Esq, 05052018

COSO Enterprise Risk Management Framework ERM Components and Principles

 

AUDIT COMMITTEE SELF-EVALUATION

David W. Tate

Attorney at Law

Certified Public Accountant (inactive California)

Copyright 2019 David W. Tate (however, you are authorized to download and print these materials for your use, and to also pass them to other people who would be interested)

BLOGS

D&O, Audit Committees, Risk Management, Compliance, Investigations & Governance: http://auditcommitteeupdate.com

Trust, Estate, Conservatorship & Elder Abuse Litigation: http://californiaestatetrust.com

Linkedin: http://www.linkedin.com/in/davetateesq

Twitter: http://twitter.com/davidtateesq

Self-evaluation is an important board and committee activity, and can be very helpful if done properly.

A.  Introduction and Overview

The following discussion covers audit committee self-evaluation and provides processes that you can use. As noted elsewhere in these materials, although many board and audit committee functions, responsibilities and tasks are specified by statute, regulation, rule or pronouncement, board and audit committee member standards of care remain significantly dependent on due diligence and prudent judgment.

Boards and audit committees of various entities are required by law, regulation or rule to conduct annual committee self-evaluations; however, it is worthwhile for boards and audit committees of all public and private companies and nonprofit entities to conduct self-evaluations. Board and audit committee jobs are challenging, ongoing, and technical in nature, and require the members to significantly interact with many people in different capacities within and outside of the entity. It only makes sense that both boards and audit committees should at least once each year take time to step back and review, evaluate and make improvements to their manners of operation, and also consider helpful actions that can be taken by other people with whom the boards and audit committees interact. Self-evaluation will be worthwhile even if it results in improving only one area of operation.

Board and audit committee responsibilities originate from several different sources at least including (1) activities and responsibilities that boards or audit committees voluntarily undertake or that are delegated to them; (2) the business judgment rule; (3) the specific laws, regulations and rules that are applicable to the entity’s directors and audit committee members; (4) the wording of the board and audit committee charters, if there are charters; (5) shareholder and stakeholder expectations, and (6) for audit committees, accounting and auditing pronouncements relating to the outside auditor’s activities.

Prudent board and audit committee processes and diligence are also important to reduce member and entity liability and reputation risk. An increasing number of cases hold that board and audit committee members can be liable for failure to exercise sufficient diligence, failure to spot and respond to red flags, and failure to take action. Active board, committee and corporate diligence tend to demonstrate prudent business judgment and negate allegations of recklessness, improper intent, intentional wrongdoing, or “scienter” such as in the context of securities litigation, thus reducing the risk of securities liability and damages. In the context of audit committee activities, potential entity, board, and audit committee member liability typically arises in the context of alleged improper accounting practices, written and oral public misrepresentations (such as with respect to financial matters), and improper employment practices.

Although not required, there can be advantages to having a facilitator conduct an interactive interview approach to the self-evaluation process, but without performance grading or rating: it can be difficult to construct a questionnaire with standardized questions that would be similarly understood by each of the participants in the self-evaluation process; different people use different rating scales; different people express responses in different manners; and certain important issues will change from year to year. A facilitated approach may encourage better discussion and comment, compilation, continuity, explanation, and follow-up. Contact me if you are interested in committee self-evaluation assistance at a reasonable fixed fee.

Issues and topic areas to consider during the self-evaluation process will naturally vary from entity to entity, and from board and audit committee to board and audit committee. Thus, to stimulate discussion, below for both boards and audit committees I have provided lists of potential broad issues or topic areas to consider for discussion and evaluation, including both successes and possible improvements; and I have also outlined processes to assist your board and audit committee self-evaluation processes.

B.  Audit Committee Self-Evaluation

1.  Sample List of Issues and Topics to Consider for Audit Committee Self-Evaluation

The following is a list of issues and topic areas to consider for discussion and evaluation. The list is intended to help trigger thought processes, but, of course, is not exhaustive as areas of discussion and evaluation will vary from entity to entity, and from committee to committee. The following list is not intended to and does not suggest that each or any of the below issues and topics must be considered or covered and is not a checklist – instead, if your audit committee is required to conduct a specific evaluation process or to cover certain specific issues and topics, you will need to separately consider the specific requirements, if any, for your audit committee and its evaluation process pursuant to law, regulation or rule. In that regard, please also see the disclaimer and limitations at the beginning of these materials.

-Audit committee meeting agenda preparation and dissemination process.

-Committee member independence and situational independence, financial literacy, experience and expertise.

-Committee member access to information and/or education pertinent to the functions and responsibilities of the audit committee. Are the needs of the committee members being met, so that they are sufficiently knowledgeable and educated about the company or nonprofit and its industry; relevant significant accounting and auditing issues; relevant legal matters; internal controls, risk assessment and management; governance; and new developments in those and other areas?

-Committee and committee member interactions, including interaction between committee members, and between the committee and the board, the CEO, the CFO, the outside auditor, the internal auditor, legal counsel, compliance and ethics, HR, consultants, and other people.

-The committee’s processes for identifying and spotting issues, evaluation and decision making.

-The contents of the audit committee charter, and a mutual understanding of the audit committee’s responsibilities and tasks. The charter is a requirement for public companies, and is a good idea for many private companies and nonprofit entities. The charter is a prudent document to identify and clarify the audit committee’s responsibilities. In addition to the committee itself, it is important for the board, the executive officers, and other stakeholders to have a correct understanding about the committee’s responsibilities and limitations, and the extent to which state or local jurisdiction, U.S. and international requirements and responsibilities apply or may apply to your audit committee.

-Selection of the outside auditor; audit planning; review of the performance of the outside auditor; and review of the quarterly review and annual audit report and process (or compilation if appropriate).

-Review of recent developments relating to the business judgment rule, standard of care and acceptable reliance on other people.

-Review of accounting and financial internal and fraud/embezzlement related controls and processes, risk assessment and management, possible entity and individual liability and reputation risk exposure; and compliance assessment and management relating to laws, regulations, and rules that are within the scope of the audit committee’s functions and responsibilities including issues relating to the Foreign Corrupt Practices Act.

– Review of the accounting department, and accounting and financial reporting for transactions including all of the subcomponents such as principles and policies applied (quality not just acceptability); judgments, estimates and reserves; timing and cutoff procedures; off balance sheet transactions; related party transactions; contingencies and liabilities; revenue recognition; expenses; inventories; goodwill; insider trading; and other matters relating to accounting and financial statement reports.

-Implementing revenue recognition rules, and other important, new or changing accounting principles.

-Review of internal investigation processes, procedures and needs.

-Review of the financial and internal audit functions, and how they can be helpful to the audit committee in the performance of its responsibilities and tasks.

-Review of risk management and uncertainty issues, practices and processes that are within the scope of the audit committee’s function and responsibilities.

-Implementing COSO 2013 or other appropriate processes.

-Documenting and reporting the audit committee’s activities and minutes.

-The audit committee’s use of attorneys and consultants.

-The company’s investor communication processes.

-Whistleblower, ethics, anonymous reporting and complaint handling processes to the extent that the reporting is within the scope of the audit committee’s function and responsibilities.

-Document retention policies.

-Review of the compliance and ethics function and processes that are within the scope of the audit committee’s responsibilities, and how they can be helpful to the audit committee in the performance of its responsibilities and tasks.

-Governance, including tone at the top, financial leadership, transparency and appearance.

-Review of employer, employee and workplace processes, culture, safety, and disciplinary practices that are within the scope of the audit committee’s function and responsibilities.

-Review of tax compliance and reporting issues that are within the scope of the audit committee’s function and responsibilities.

-Review of cybersecurity and internet security issues that are within the scope of the audit committee’s function and responsibilities.

-Insurance.

-Review of pension and health plan related issues that are within the scope of the audit committee’s function and responsibilities.

-Review of information privacy issues, practices and processes that are within the scope of the audit committee’s function and responsibilities.

-Review of asset protection, IP, trade secret, etc. practices to the extent that they are within the audit committee’s function and responsibilities.

-Review of environmental issues and safety that are within the scope of the audit committee’s function and responsibilities.

-Review of product and consumer safety issues, practices and processes that are within the scope of the audit committee’s function and responsibilities.

-Review of ESG, ESG processes, and ESG discussions and disclosures.

-Review of billing and accounting relating to the receipt of funds or revenue from governmental sources such as Medicare and Medicaid; compliance with applicable laws, regulations, rules and other requirements; and oversight of expenses relating to these areas.

-Review of the acceptance, receipt, allocation, expenditure or distribution, and accounting for all charitable and donor funds, grants, contributions, pledges and other resources, including compliance with all requirements, restrictions and special uses.

-Review of accounting for collaboration and joint venture arrangements, including the allocation of receipts/income and distributions/expenses between the entities.

-And, in this economic environment, review of the fair value of funds and investments, including loss of value; liquidity concerns; possible going concern issues; estimates for uncollectibles and related reserves; debt/loan covenants; and funding source uncertainties including those that relate to collaboration and joint venture arrangements.

-It is also important for the audit committee to clarify with the board what responsibilities it has, if any, for oversight of the numerous and various areas of taxation and compliance; ERISA, pension and health and welfare plans; investments; tax exempt status including fund raising, dues, solicitation, and political, campaign and lobby activities; and other areas significant to the entity.

-Discussion about audit committee membership and recruitment needs.

-Additional significant topics or issues that should be discussed.

2.  A Self-Evaluation Process and Format for Audit Committees

The following eight primary steps outline a proposed audit committee self-evaluation process that is workable for audit committees of public companies, private companies and nonprofit entities, whether using or not using, an outside facilitator.

 

Step 1. Determine the people who will be participating in the evaluation process, including the audit committee members, and other people, if any, to interview for comment.

Provide the names of the people who will participate in the evaluation process.

 

 

Step 2. Determine how the participant interviews will be conducted, individually or in a group, in person or by telephone, skype or some other means.

Provide comments or information about how the interviews will be handled with the various different people who will participate in the evaluation.

 

 

Step 3. Arrange participant individual or group interview dates and times.

Provide participant individual or group interview date and time information.

 

 

Step 4. Provide the participants with pre-interview materials and a list of possible issue or topic areas (broad and specific) for consideration and discussion. Of course, the participants can add additional issues or topics. Use this paper for that purpose.

Provide information regarding the status of disseminating the pre-interview materials.

 

 

Step 5. Have each participant provide a list of one to five, or more, issues or topic areas that the participant would specifically like to discuss during the evaluation process.

Provide comments and information regarding receipt of issues or topic areas from the self-evaluation process participants, and the respective issues or topic areas listed.

 

 

Step 6. Conduct information intake or interviews with participants individually or as a group.

Provide comments and information from the participants or the status of such – the input can be made by the participants themselves or by a facilitator during self-evaluation interviews.

 

 

Step 7. Summarize in a report format the issues and topic areas, information received, and suggestions made during the self-evaluation process.

Provide a summary in a report format.

 

 

Step 8. Provide a report back to the audit committee, and possibly conduct a committee group review of the self-evaluation process, information obtained, and suggestions made, and possible future actions or follow-up.

Provide additional comments and information about the self-evaluation process or results.

 

 

Concluding comments. I hope you have found this discussion helpful and at least a good starting point for your audit committee self-evaluation. Feel free to contact me if you are interested in discussing the audit committee self-evaluation process, or if you would like help with facilitation of committee self-evaluation at a reasonable fixed fee.

Best to you,

David Tate, Esq.

 

 

 

Summary of California Trustee and Beneficiary Responsibilities and Rights, and Handling Contentious Trust Administrations and Other Family Situations (PPT slides saved as PDF)

The following is a link to a PDF of my PowerPoint slides for a Summary of California Trustee and Beneficiary Responsibilities and Rights, and Handling Contentious Trust Administrations and Other Family Situations: David Tate, Esq. – Summary of California Trustee and Beneficiary Responsibilities and Rights 02252020 Slides Saved as PDF

And below is a snapshot of page 1 of the slides. Best to you, Dave Tate, Esq.

 

 

When do you not have the right to remain silent in conservatorship proceedings (Weintraub Tobin) – with Tate’s comments added

I have provided below a link to a Weintraub Tobin post about conservatorship proceedings and when a conservatee or prospective conservatee might have or might not have the right to remain silent (i.e., the right to not be compelled to testify). The post references Conservatorship of Bryan S. which was a LPS conservatorship; however, some of the same arguments might also be made in regular or general conservatorship proceedings.

A conservatorship proceeding is a state action in which the court is petitioned to order that there be a limitation on the conservatee’s freedom of choice or decision making, and in some circumstances the conservatee’s personal freedom of movement, or of living condition, or of right to not be medicated.

This post by Weintraub is also timely in light of the State of California’s initiative to use conservatorship proceedings more often.

As noted, in Conservatorship of Bryan S. the Court held that the prospective conservatee did not have the right to refuse to testify unless the questions and the answers thereto may incriminate the prospective conservatee in a criminal matter – and that question or issue, i.e., about possible incrimination, could be relevant for consideration in at least some conservatorship proceedings. And I also note that Conservatorship of Bryan S. involved only one Court of Appeals – other Court of Appeals might differ and at some point this issue might be brought up to the California Supreme Court.

You can find other posts about conservatorship proceedings throughout this blog – in the search box type in the word conservatorship.

The following is a link to the Weintraub Tobin discussion: https://www.weintraub.com/blogs/when-do-you-not-have-the-right-to-remain-silent-conservatorship-proceedings-and-equal-protection-clause-claims

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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.

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, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com