Tag Archives: elder abuse

You should have periodic checkups with an estate planning attorney; investment, FINRA or financial planner advisor; banker; CPA; health provider; or other person – to help you to avoid or get out of situations of financial abuse, exploitation, control, and lack of information, access and possession

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The following is the slightly longer version of the title to this discussion:

Another reason why you should have periodic checkups with an estate planning attorney, investment, FINRA or financial planner advisor, CPA, banker, fiduciary or trustee, mental or physical health, medical or care provider, or other person – who can help you to avoid or to get out of situations of elder, spousal, partner, dependent adult, and joint- or co-owner financial abuse, exploitation, control, and lack of information, access and possession.

            This discussion is primarily to provide another good reason for, and to encourage people to, periodically meet or talk with an appropriate professional for a checkup as a regular matter of practice. I realize that in my litigation practice I only see the bad cases. But I am seeking a lot more cases of elder, spousal, partner, dependent adult, and joint- or co-owner financial abuse and exploitation where one person in the relationship controls the finances including information about the finances, accounts and investments, and access to and possession of the finances, money, accounts and investments.

            It is not uncommon for one person in a relationship to be primarily responsible for or tasked with handling most financial matters or tasks. And in most relationships that ends up being fine. But it creates a potential risk or an issue of risk management that might not be obvious or known until the person who is not handling the finances begins to ask questions and wants to have information and access, or when the relationship begins to sour or even ends. At some point you may begin to see resistance from the person who has been in charge of or tasked with the finances, and as you persist and even begin to push for information, and access and possession, you may begin to see that the person who has been in charge or has been tasked with the finances is not as trustworthy or benevolent has you had thought – instead you may begin to see a controlling, possessive, secretive, self-centered, or vindictive personality, or even dysfunctional, dangerous and damaging. Whereas things had seemed fine until you started wanting to become knowledgeable and involved, if you persist you may see an effort being made to convince you that all is fine and that you are being unreasonable or even paranoid, or that you are being insulting to or untrusting of the person in control, or to downplay or misrepresent the situation and or the narrative, or to gaslight, intimidate, belittle, coerce, or force you stay in line and to accept the status quo. The potential scenarios and efforts to keep and maintain the status quo are numerous.  

            If the above scenarios sound dark, that is because they are dark. But I am doing this discussion because I am seeing more and more of these situations including between and involving spouses, partners, dependent adults, joint- or co-owners, and other family members or relatives. These situations also often include instances of undue influence or persuasion, taking undue advantage, and fraud. In most cases the wrongdoer digs in, tries to control and misrepresent the narrative, gaslights, and says well . . . take it back if you can. As I talk with other attorneys, they are seeing the same. These cases can be long and complicated to pursue – which fits the strategy of the wrongdoer to deny, delay, and hide, and to prevail by grinding down. In every case there is the applicable law, and what you know and can prove through evidence that is admissible, what you need or want to know, and what you don’t know but believe that you can obtain and find out through investigation and discovery.

            The primary point of this discussion is to try to safeguard and protect people from, and to prevent, the above situations, and to be able to remedy them if they occur. These situations are best prevented if there is or if there becomes mutual access to information about the finances, and access to and possession of the finances, accounts, money, and investments (other than those assets that truly are separate property by law).  

            Thus, why do I say that people should periodically see an estate planning attorney; investment, FINRA or financial planner or advisor; CPA; banker; fiduciary or trustee; mental or physical health, medical or care provider; or other person for a checkup? Because they and other professionals can or may be able to help or to help guide the victim or person at risk to avoid or how to avoid or get out of situations of elder, spousal, partner, dependent adult, and joint- or co-owner financial abuse, exploitation, control, and lack of information, access and possession.

This discussion is not about professional legal duties. If you are a professional you should already make sure that you are knowledgeable or that you become knowledgeable about your legal duties and practices. Regardless of legal duties, if you are a professional, you may already have, and I encourage you to have, standard procedures or processes whereby you obtain information that could help to indicate whether your client, or one of your clients if you are representing joint clients, is a victim or is at risk of being a victim of elder, spousal, partner, dependent adult, and joint- or co-owner financial abuse, exploitation, control, and lack of information, access and possession. Thus, for example, the client could be seeing you for a periodic, or even an initial, checkup to discuss changes in the law, new opportunities, and relevant changes in their lives or wishes.

            If you are an estate planning attorney, investment, FINRA or financial planner or advisor, CPA, banker, fiduciary or trustee, or mental or physical health, medical or care provider there may well already be reasons for you to ask about or to discuss with your client, or clients jointly or separately, the significant financial assets, accounts and investments, and who has, or controls, access, possession, and information, as a standard practice for the purpose of providing professional services. Answers, or lack of answers or information may also identify abuse, exploitation, risk and or issues of risk management. It is far better to identify, prevent and avoid significant risk, and to remedy any significant risk, as soon as possible. A person who is at risk should not be alone or in a silo about the situation, and should be made to be comfortable coming out and discussing the situation and possible needs, options, remedies, and who to see for help. And also ask the client in a private one-on-one setting to provide names of and contact information for trusted family members, trusted friends, and people who the client designates as trusted contacts in circumstances of concern or need.

_________________________________________

In Loving Memory of Deborah Ann Tate Trotta (September 12, 2021).

You can see a discussion about Deb, and her situation before and after death by clicking on the below link which is titled and discusses:

Someone who should not be a suicide decedent’s representative, or control or get the suicide decedent’s remains, property or assets – every state needs a law and cause of action. In loving memory of Deborah Ann Tate Trotta (September 12, 2021). https://californiaestatetrust.com/2022/12/25/someone-who-should-not-be-allowed-to-become-a-suicide-decedents-representative-or-to-get-the-suicide-decedents-assets-and-property-a-law-and-cause-of-action-that-every-stat/

Good people need to be on the lookout, and take actions.

Thank you for reading. Please feel free to pass this blog and blog post and information to other people who would be interested.

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Best to you,

David Tate, Esq. (and inactive CPA)

  • Business litigation and disputes – business, breach of contract/commercial, co-owners, shareholders, investors, founders, workplace and employment, environmental, D&O, governance, boards and committees.
  • Trust, estate and probate court litigation and disputes – trust, estate, probate, elder and dependent abuse, conservatorship, POA, real property, mental health and care, mental capacity, undue influence, conflicts of interest, and contentious administrations.
  • Governance, boards, audit and governance committees, investigations, auditing, ESG, etc.
  • Mediator and facilitating dispute resolution:
    • Trust, estate, probate, conservatorship, elder and dependent abuse, etc.
    • Business, breach of contract/commercial, owner, shareholder, investor, etc.
    • D&O, board, audit and governance committee, accountant and CPA related.
    • Other: workplace and employment, environmental, trade secret.

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, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that doesn’t mean that I don’t or might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My two blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

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

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.

Elder Abuse Restraining Orders To Prevent Isolation And Financial Elder Abuse – California Assembly Bill No. 1243, and White v. Wear

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Elder abuse restraining orders are in the California news. See my prior February 7, 2022, post discussing recently enacted California Assembly Bill No. 1243, New law expands legal standing in California to petition for a restraining order to stop and prevent elder and dependent adult isolation abuse at https://wordpress.com/post/californiaestatetrust.com/2385.

The following is a discussion about the March 8, 2022, restraining order decision in White v. Wear (March 8, 2022, E076352) ____ Cal. App. 5th ________, in which the court upheld an elder abuse restraining order that precluded the respondent from making or facilitating any change to the estate plan of her 94-year-old stepfather.

In White v. Wear the Court of Appeal held that the trial court did not abuse its discretion in entering a restraining order against a step child who tried to unduly influence her mother’s elderly husband to change his estate plan to benefit the mother and the step child. California has long had statutes prohibiting elder and dependent adult abuse – however, there still are relatively few court decisions that interpret or apply those statutes. In White v. Wear the Court discussed restraining orders under California Welfare and Institutions Code section 15657.03 under which a court may issue a restraining order to prevent threatened or actual physical and financial abuse of an elder or a dependent adult.

Quoting from White v. Wear, the following is additional overview from the Court’s Opinion:

“The parties to this appeal are no strangers to this court. This case is yet another skirmish in a long series of disagreements about the control of the multi-million-dollar estate[1] of nonagenarian[2] Thomas S. Tedesco.[3] Plaintiff and respondent Laura White is one of Thomas’s three biological daughters and a cotrustee of his living trust. (Conservatorship of Tedesco (Sept. 19, 2019, E070316) [nonpub. opn.] review denied Dec. 18, 2019, S258835 (Conservatorship, E070316).) Defendant and appellant Debra Wear aka Debbie Basara Wear is one of Thomas’s stepdaughters. In 2013, Thomas suffered serious health issues, which resulted in significant cognitive impairment, leaving him susceptible to being unduly influenced by anyone close to him. Gloria Tedesco, Thomas’s second wife, began denying White and her sisters access to their father, causing him to believe that they were stealing from him. Wear assisted Gloria, her mother, in unduly influencing Thomas via contacting, or facilitating access to, attorneys in order to change Thomas’s estate plan to disinherit his biological family in favor of Gloria and her family. Thus, on August 13, 2015, a permanent conservator of Thomas’s estate was appointed.

Despite the existence of the conservatorship, Wear continued to assist Gloria in taking actions to unduly influence Thomas to change his 30-plus-year estate plan. Consequently, upon White’s petition, the superior court issued an elder abuse restraining order (EARO), restraining Wear for three years from, among other things, financially abusing Thomas, contacting him (either directly or indirectly), facilitating any change to his estate plan, coming within 100 yards of him, and possessing any guns, other firearms, and ammunition. (Welf. & Inst. Code,[4] § 15657.03.) Wear contends the EARO is void because (1) the judge was disqualified and (2) he violated due process by substantially amending the allegations in the petition and prohibiting her from possessing firearms and ammunition. She further asserts the petition fails to state a cause of action for elder financial abuse. We agree the court erred in including a firearms and ammunition restriction in the EARO and direct the court to strike it. Otherwise, we affirm.[5]”

Slowly, over time, California is adding additional teeth to its elder and dependent adult abuse statutes and cases, and to the toolbox that attorneys and other professionals can use to prevent and remedy elder and dependent adult abuse. If you scroll through this blog you will find other blog posts discussing conservatorships, elder and dependent adult abuse, mental and physical capacity and limitations, undue influence, litigation, mediation, and other related topics.

* * * * * * *

Best to you,

David Tate, Esq. (and inactive CPA)

  • Litigation, Disputes and Trials – Business, Contract/Commercial, Owner, and Founder; and Trust, Estate, Elder/Dependent Abuse, Conservatorships, POA, Real Property, Health and Care, Contentious Administrations, etc.
  • Mediator
  • D&O, Governance, Workplace, Boards, Committees, and Executives, Investigations, Internal Controls and Auditing, Law, Laws and Legislation, Responsibilities and Duties, Rights, Liability, and Damages, etc.

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.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that doesn’t mean that I don’t or might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

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:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

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

David Tate, Esq. (and inactive California CPA) – practicing as an attorney in California only.

New law expands legal standing in California to petition for a restraining order to stop and prevent elder and dependent adult isolation abuse

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California Assembly Bill No. 1243, signed by Governor Newsom  on September 23, 2021, in relevant part expands the definition of an “interested party” who has legal standing to petition the court for a restraining order to enjoin (i.e., stop and prevent) elder and dependent adult isolation abuse. Assembly Bill No. 1243 is effective beginning January 1, 2023.

For the purpose of seeking the restraining order to enjoin (i.e., to stop and prevent) the isolation, pursuant to Assembly Bill No. 1243, beginning January 1, 2023 the term interested party will be expanded to include the following: “Interested party” means an individual with a personal, preexisting relationship with the elder or dependent adult. Thus, for example, if the requisite factual circumstances exist, friends and family members will now (beginning January 1, 2023) have legal standing to file a petition requesting the court to issue an order enjoining the wrongdoer from isolating the elder or dependent adult victim.

Elder and dependent adult cases present challenging legal issues relating to proof and remedies. And the elder or dependent adult victim can feel torn and pulled in different emotional and relationship directions. For example, situations are common where a wrongdoer is trying to unduly influence or take financial advantage of and to be alone with and isolate the elder or dependent adult victim so the wrongdoer can more easily badmouth others or take or steal or get the victim to change her or his estate planning documents, while good family members and friends are also trying to protect the elder or dependent adult and to keep the wrongdoer away. I have seen in these situations a wrongdoer who tries to use the law to help the wrongdoer to be able to continue to see and be with the elder or dependent adult victim including petitioning the court for an order to prevent the good people from keeping the wrongdoer away. And the victim is torn because she or he mistakenly believes the wrongdoer is actually a benevolent friend or family member.

Although California law does tend to extend legal standing in elder and dependent adult abuse cases more broadly than the laws in some other states (such as Florida, for example, where it is still too limited), even in California legal standing needs to be expanded to the greatest extent possible so that wrongdoers aren’t able to hide behind the law as a shield, and Assembly Bill No. 1243 will be helpful in that regard (beginning January 1, 2023). But, of course, this new provision would be even more helpful if it is made effective immediately.  

The following are select relevant wording provisions from Assembly Bill No. 1243:

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1.

(a) It is the intent of the Legislature to prevent domestic violence, including elder and dependent adult abuse, and particularly to preserve the physical and mental health of vulnerable Californians.

            * * * * *

(b) The Legislature finds and declares that one way perpetrators of domestic violence, including elder and dependent adult abuse, are able to continue with their abuse is by preventing trusted friends and family members from seeing or contacting a vulnerable adult. As the vulnerable adult is isolated, it becomes more and more difficult for others to identify signs of abuse. The isolation also allows the perpetrator to potentially take over finances and hide any indications that they are doing so.

            * * * * *

A court order is not required for an elder or dependent adult to engage in visitation from anyone from whom the elder or dependent adult desires visitation.

(c) The Legislature further finds and declares that it is extremely important that the health and well-being of a vulnerable adult be front and center in any decision affecting them.

(d) It is the intent of the Legislature that the changes made by this act ensure that vulnerable adults are able to protect and preserve their physical and mental health, by making certain that these vulnerable adults are able to maintain important familial and social connections that they desire, and that a perpetrator does not cut off those relationships in an attempt to take advantage of the vulnerable adult.

            * * * * *

SEC. 3.

Section 15657.03 is added to the Welfare and Institutions Code, to read:

15657.03.

 (a) (1) An elder or dependent adult who has suffered abuse, as defined in Section 15610.07, may seek protective orders as provided in this section.

(2) (A) A petition may be brought on behalf of an abused elder or dependent adult by a conservator or a trustee of the elder or dependent adult, an attorney-in-fact of an elder or dependent adult who acts within the authority of a power of attorney, a person appointed as a guardian ad litem for the elder or dependent adult, or other person legally authorized to seek the relief.

(B) (i) Subject to clause (ii), if the petition alleges abuse of an elder or dependent adult in the form of isolation, the term “other person legally authorized to seek the relief” as used in subparagraph (A) includes an interested party as defined in paragraph (3) of subdivision (b) [DTate: see below].

(ii) Clause (i) shall apply only for the purpose of seeking an order enjoining isolation under subparagraph (E) of paragraph (5) of subdivision (b).

            * * * * *

(b) For purposes of this section:

(1) “Abuse” has the meaning set forth in Section 15610.07.

(2) “Conservator” means the legally appointed conservator of the person or estate of the petitioner, or both.

(3) “Interested party” means an individual with a personal, preexisting relationship with the elder or dependent adult. A preexisting relationship may be shown by a description of past involvement with the elder or dependent adult, time spent together, and any other proof that the individual spent time with the elder or dependent adult.

            * * * * *

(5)(E) (i) After notice and a hearing only, an order enjoining a party from abusing an elder or dependent adult by isolating them. An order may be issued under this subparagraph to restrain the respondent for the purpose of preventing a recurrence of isolation if the court finds by a preponderance of the evidence, to the satisfaction of the court, that the following requirements are met:

(I) The respondent’s past act or acts of isolation of the elder or dependent adult repeatedly prevented contact with the interested party.

(II) The elder or dependent adult expressly desires contact with the interested party. A court shall use all means at its disposal to determine whether the elder or dependent adult desires contact with the person and has the capacity to consent to that contact.

(III) The respondent’s isolation of the elder or dependent adult from the interested party was not in response to an actual or threatened abuse of the elder or dependent adult by the interested party or the elder or dependent adult’s desire not to have contact with the interested party.

(ii) The order may specify the actions to be enjoined, including enjoining the respondent from preventing the interested party from in-person or remote online visits with the elder or dependent adult, including telephone and online contact.

(iii) An order enjoining isolation under this section is not required for an elder or dependent adult to visit with anyone with whom the elder or dependent adult desires visitation.

(iv) An order enjoining isolation shall not be issued under this section if the elder or dependent adult resides in a long-term care facility, as defined in Section 9701, or a residential facility, as defined in Section 1502 of the Health and Safety Code. In those cases, action may be taken under appropriate federal law.

(v) An order enjoining isolation shall not be issued under this section if the elder or dependent adult is a patient of a health facility as defined in subdivision (a), (b), or (f) of Section 1250 of the Health and Safety Code. In those cases, action may be taken under other appropriate state or federal law.

            * * * * *

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Best to you,

David Tate, Esq. (and inactive CPA)

  • Litigation and Disputes – Business, Contract, Owner, and Founder; and Trust, Estate, Elder/Dependent Abuse, Conservatorships, POA, Real Property, Administrations, etc.
  • Mediator
  • D&O, Governance, Workplace, Boards, Committees, and Executives, Investigations, Internal Controls and Auditing, etc.

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:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

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

David Tate, Esq. (and inactive California CPA) – practicing in California only.

⁃  Litigation, disputes and trials (primarily in the following areas):

Commercial and business, and business owner, investor, shareholder, D&O, officer, director, governance, accountings, lost income, profits and royalties, and business-related;

Trust, estate, elder abuse, POA, conservatorship, contentious administrations, ethics, etc.;

Workplace and employment, and real property; and

Various other cases and areas (environmental contamination, accidents, insurance, etc.).

⁃  Boards and committees including audit and governance committees, investigations, independence, conflicts, governance, diligence, risk management, ESG, etc. – representation and advising re conduct, authority, duties and responsibilities, rights, and liability.

⁃  Services as a mediator, and dispute resolution.

A conservatorship game changer – California Assembly Bill No. 1194 – two provisions: the right to be represented by an attorney (a zealous, independent advocate), and the clear and convincing standard of proof

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California Assembly Bill No. 1194, Low, Conservatorship, was approved by the Governor and filed with the Secretary of State on September 30, 2021. The Bill is long, has many sections, and amends many sections of the Probate Code or makes new sections. Some of the provisions do not necessarily become mandatory immediately – typical wording that is included in many of the new provisions states something similar to: “A superior court shall not be required to perform any duties imposed pursuant to this section until the legislature makes an appropriation identified for this purpose.” Nevertheless, as to a certain extent the Probate Court in each Superior Court sometimes can operate as it wishes, although not “required” to perform the specified duties, a Probate Court still might decide to do so prior to an appropriation being made by the legislature. If a Probate Court decides to perform the new duties earlier than required to do so, the Probate Court should be sure to make that decision known to practicing attorneys, the public, and others.

Some of the new provisions apply to conservatorships in general, whereas other provisions specifically apply only to limited conservatorships, or temporary conservatorships, or other specific situations.    

You can find other conservatorship related posts throughout this blog. Conservatorships are a developing area of law. The new provisions strengthen conservatee and prospective conservatee rights, which is appropriate given that a conservatorship is a state action that limits the conservatee’s constitution rights of freedom and personal choice. It is also true that, in the real world, recognizing and specifying the additional rights most likely will create or cause new processes and procedures which might well cause fewer conservatorships to be granted, more conservatorships might be terminated, conservatorships that are ordered might involve fewer limitations or restrictions on conservatees, and additional court time and attention might be required in conservatorship cases. The result might also be that if there are fewer conservatorships, people who would have been but who are not being conserved might need additional help or assistance from an attorney in fact under a power of attorney, or from a trustee, or from a spouse or domestic partner, family and friends.

The following are two significant sections in AB 1194 which are effective immediately. The first section amends Probate Code section 1471. The second section amends Probate Code section 1863.

The amendment to Probate Code section 1471 specifies that a conservatee or a prospective conservatee, or a person alleged to lack legal capacity is entitled to be represented by an attorney, whether the attorney is the public defender or private counsel, and that the conservatee or prospective conservatee also in most situations is entitled to be represented by an attorney of her or his choice (or, perhaps, by the choice of her or his attorney in fact?). Amended section 1471 also appears to require the court to appoint legal counsel for the conservatee, prospective conservatee or person alleged to lack legal capacity even when legal counsel wasn’t requested – see below at section 1471(b).

The amendment to Probate Code section 1863 is perhaps even more significant. Amended sections 1863(c) and (d) provide that when a court is determining whether the granting of a conservatorship is appropriate, and when reviewing the appropriateness of a conservatorship continuing or not (which is required at least annually and sometimes can be required more often), unless the court determines by clear and convincing evidence that the conservatee meets the criteria for the appointment of a conservator or still meets that criteria (i.e., that the order for a conservatorship is appropriate), and that the conservatorship and the powers that have been granted to the conservator are the least restrictive means of providing help and assistance to the conservatee or prospective conservatee, the court shall terminate the conservatorship or modify the terms to be the least restrictive.

As the clear and convincing standard is a higher standard of proof than for example the preponderance of the evidence, the result might be fewer conservatorships being granted, or less restrictive conservatorship terms, or more conservatorships being terminated. As in many circumstances a conservatee or prospective conservatee also is entitled to have a trial on the matter (i.e., with witness testimony instead of the judge simply making a decision from the bench), and also might be entitled to have a trial by jury instead of simply by the judge, there is the prospect that more conservatorship cases will result in trials, and in jury trials (see also section 1471(e) below in reference to the attorney being a “zealous, independent advocate representing the wishes of their client”).   

Below I have copied and pasted the new amended Probate Code sections 1471 and 1863. You can also search this blog for other “conservatorship” posts.

Thanks for reading, and best to you, Dave Tate, Esq.

SEC. 6.

Section 1471 of the Probate Code is amended to read:

1471.

(a) If a conservatee, proposed conservatee, or person alleged to lack legal capacity is unable to retain legal counsel and requests the appointment of counsel to assist in the particular matter, whether or not that person lacks or appears to lack legal capacity, the court shall, at or before the time of the hearing, appoint the public defender or private counsel to represent the person in the following proceedings under this division:

(1) A proceeding to establish or transfer a conservatorship or to appoint a proposed conservator.

(2) A proceeding to terminate the conservatorship.

(3) A proceeding to remove the conservator.

(4) A proceeding for a court order affecting the legal capacity of the conservatee.

(5) A proceeding to obtain an order authorizing removal of a temporary conservatee from the temporary conservatee’s place of residence.

(b) If a conservatee or proposed conservatee has not retained legal counsel and does not plan to retain legal counsel, whether or not that person lacks or appears to lack legal capacity, the court shall, at or before the time of the hearing, appoint the public defender or private counsel to represent the person in any proceeding listed in subdivision (a).

(c) In any proceeding to establish a limited conservatorship, if the proposed limited conservatee has not retained legal counsel and does not plan to retain legal counsel, the court shall immediately appoint the public defender or private counsel to represent the proposed limited conservatee. The proposed limited conservatee shall pay the cost for that legal service if they are able. This subdivision applies irrespective of any medical or psychological inability to attend the hearing on the part of the proposed limited conservatee as allowed in Section 1825.

(d) If a conservatee, proposed conservatee, or person alleged to lack legal capacity expresses a preference for a particular attorney to represent them, the court shall allow representation by the preferred attorney, even if the attorney is not on the court’s list of a court-appointed attorneys, and the attorney shall provide zealous representation as provided in subdivision (e). However, an attorney who cannot provide zealous advocacy or who has any conflict of interest with respect to the representation of the conservatee, proposed conservatee, or person alleged to lack legal capacity shall be disqualified.

(e) The role of legal counsel of a conservatee, proposed conservatee, or a person alleged to lack legal capacity is that of a zealous, independent advocate representing the wishes of their client, consistent with the duties set forth in Section 6068 of the Business and Professions Code and the California Rules of Professional Conduct.

(f) In an appeal or writ proceeding arising out of a proceeding described in this section, if a conservatee or proposed conservatee is not represented by legal counsel, the reviewing court shall appoint legal counsel to represent the conservatee or proposed conservatee before the court.

______________________

SEC. 16.

Section 1863 of the Probate Code is amended to read:

1863.

(a) The court shall hear and determine the matter according to the law and procedure relating to the trial of civil actions, including trial by jury if demanded by the conservatee. The conservator, the conservatee, the spouse or domestic partner, or any relative or friend of the conservatee or other interested person may appear and support or oppose the termination of the conservatorship.

(b) (1) The conservatee shall be produced at the hearing except in the following cases:

(A) When the conservatee is out of the state and is not the petitioner.

(B) When the conservatee is unable to attend the hearing by reason of medical inability.

(C) When the court investigator has reported to the court that the conservatee has expressly communicated that the conservatee (i) is not willing to attend the hearing, (ii) does not wish to contest the continuation of the conservatorship, and (iii) does not object to the current conservator or prefer that another person act as conservator, and the court makes an order that the conservatee need not attend the hearing.

(2) If the conservatee is unable to attend the hearing because of medical inability, that inability shall be established by the affidavit or certificate of a licensed medical practitioner or, if the conservatee is an adherent of a religion whose tenets and practices call for reliance on prayer alone for healing and is under treatment by an accredited practitioner of that religion, by the affidavit of the practitioner. The affidavit or certificate is evidence only of the conservatee’s inability to attend the hearing and shall not be considered in determining the issue of need for the continuation of the conservatorship.

(3) Emotional or psychological instability is not good cause for the absence of the conservatee from the hearing unless, by reason of that instability, attendance at the hearing is likely to cause serious and immediate physiological damage to the conservatee.

(c) Unless the court determines, on the record and by clear and convincing evidence, that (1) the conservatee still meets the criteria for appointment of a conservator of the person under subdivision (a) of Section 1801, a conservator of the estate under subdivision (b) of Section 1801, or both; and (2) a conservatorship remains the least restrictive alternative needed for the conservatee’s protection, as required by subdivision (b) of Section 1800.3, the court shall enter judgment terminating the conservatorship.

(d) If the court determines, by clear and convincing evidence, that the conservatee meets the criteria for appointment of a conservator of the person under subdivision (a) of Section 1801, a conservator of the estate under subdivision (b) of Section 1801, or both, the court shall determine whether to modify the existing powers of the conservator to ensure that the conservatorship remains the least restrictive alternative needed for the conservatee’s protection and shall order the conservatorship to continue accordingly. If the court modifies the existing powers of the conservator, new letters shall issue.

(e) At the hearing, or thereafter on further notice and hearing, the conservator may be discharged and the bond given by the conservator may be exonerated upon the settlement and approval of the conservator’s final account by the court.

(f) This section does not apply to limited conservatorships.

(g) Termination of conservatorship does not preclude a new proceeding for appointment of a conservator on the same or other grounds.

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

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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

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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

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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)

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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

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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

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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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