I heard about this recently – a new situation is arising. I’m just telling you about it. The elder is living in a residential care facility for the elderly, sometimes referred to as a RCFE, or assisted living or board and care. The elder is paying with private money. The assets and money run out. The elder doesn’t have family, or the family doesn’t have money, or the family won’t pay for the elder. Medi-Cal will not pay for a RCFE. In the past, in some situations, going to a nursing home was a last resort as Medi-Cal will pay for the cost of the nursing home. In the past the referral to a nursing home might merely have needed a doctor’s signature. Increasingly, Medi-Cal or its agents or representatives are starting to evaluate whether the elder’s physical, medical or mental conditions actually qualify the elder to be in the nursing home. In other words, if it is decided that the elder’s conditions are not sufficiently bad to qualify the elder to be in the nursing home, Medi-Cal will not pay for the costs of the nursing home, and the elder either will not be allowed initially into the home, or the nursing home and Medi-Cal will want to discharge and force the elder from the nursing home. But in those situations the elder has nowhere that she or he can afford with private pay.
I debated whether to post this article – it’s disgusting – pressure sores at home. All avoidable and better treated. Click on the following, Click Here.
Dave Tate, Esq. (San Francisco), Civil Litigation; Trust, Estate, Conservatorship and Elder Abuse Litigation; Trust, Estate and Conservatorship Administration; Representing Fiduciaries and Beneficiaries; D&O, Boards and Audit Committees. My other blog: http://directorofficernews.com.
This blog post includes a video about elder and dependent adult abuse, and below the video you will find a link to my PowerPoint slides from a recent elder and dependent adult presentation for an attorney bar association section. Please pass this blog post to everyone who would be interested in these materials. Thank you. Dave Tate, Esq. (San Francisco and California).
Click on the following link for the PowerPoint slides from my elder and dependent adult abuse presentation, ELDER AND DEPENDENT ADULT ABUSE AND PROTECTION PRESENTATION SLIDES
Yesterday I attended the monthly San Mateo County Estate Planning and Probate Section lunch presentation. This presentation was on silent trusts, presented by attorneys Paul Barulich and Matthew Matiasevich. An interesting discussion about the planning, although rather limited planning, that parents can do in California to keep an irrevocable trust private from the beneficiaries, i.e., so that the beneficiaries don’t even know the trust exists. When might trustors desire this type of privacy from beneficiaries? One scenario could be when parents want their children to strive and achieve at least into their twenties without the certain knowledge that they will be receiving substantial trust assets. At least based on responses by attendees, not many estate planning attorneys are preparing silent trusts.
One noted tidbit of information: even if the trust is drafted as a silent trust, trustee/trust duties under California Probate Code sections 16060.7, 16061 and 16061.5 are not waivable. Thus, for example, in some situations the trustee must still provide the terms of the trust and report to the beneficiary by providing information relating to the administration of the trust relevant to the beneficiary’s interest, if the beneficiary requests the trustee to do so. Accordingly, even if a prospective beneficiary does not know that a trust exists, i.e., because the trust is silent, a prospective beneficiary should always ask a suspected trustee to provide information about any trust in which the prospective beneficiary is a beneficiary. Upon that request the trustee must provide some information.
Dave Tate, Esq. (San Francisco / California) – Civil and Estate, Trust, Conservatorship and Elder Abuse Litigation – member of the Estate Planning and Probate Section Executive Committee.
My other blog, http://directorofficernews.com.
The following link will bring you to a publication by the National Institute on Aging entitled The Dementias, Hope Through Research. The publication provides a good overview or background to dementia including types, causes, diagnosis, treatment, etc. For the publication, Click Here.
Dave Tate, Esq. (San Francisco/California)
My other blog, D&O, audit committees, boards, officers, risk management, compliance and governance, http://directorofficernews.com.
An interesting article discussing a finding that antipsychotic drugs for dementia increase the risk of death. I find equally interesting the numbers of elderly who are receiving antipsychotic drugs. Click on the following link for the article, Click Here.
Dave Tate, Esq. (San Francisco)
My other blog for directors, boards, audit committees, officers, CEO’s, CFO’s, risk management, governance and compliance: http://directorofficernews.com
The following is an article about a new Mayo Clinic study, that the primary cause of Alzheimer’s might not be what has generally been thought:
“Amyloid – a sticky, toxic protein found in the brains of Alzheimer’s patients — has been the focus of research and diagnosis for decades. But a new Mayo Clinic study published in the journal Brain shows that another toxic protein, called tau, may be a bigger culprit in cognitive decline and Alzheimer’s over the lifetime of the disease.”
Click on the following link for the article: Click Here.
Many of my cases involve cognitive impairment or decline, whether it be diagnosed or called Alzheimer’s, or dementia, or traumatic brain injury, or lack of mental capacity, or cognitive impairment, or otherwise.
In conservatorships the issue isn’t the diagnosis, but whether the prospective conservatee has the ability to take care of and understand financial and/or daily living tasks and to resist fraud and undue influence?
And in will and trust contests or disputes, the issue is whether the decedent understood his or her assets and the effect of the provisions in the will or trust, and whether the will or trust provisions are what the decedent would have naturally wanted if the decedent had the mental capacity to understand his or her actions and the will or trust provisions, and to resist fraud and undue influence? One additional comment: there is case law that you might not need to wait until after someone dies to contest or seek to invalidate a will or trust – this is an area of law that is developing and that is a positive development.
Dave Tate (San Francisco and California), http://californiaestatetrust.com
Please also forward this blog post to anyone else who would be interested. At the request of friends I have also posted below the video the text of the discussion. Thank you. Dave Tate
California Trustees – What Would Keep Me Up At Night – February 2015
Hello I’m Dave Tate. I’m a San Francisco litigation attorney and I also represent trustees in trust administrations. This discussion is for California trustees, and what would keep me up at night February 2015.
Trustee responsibilities are extensive and they arise from different sources including the wording of the trust itself, statutes and case law. Of course you have to cover all areas of your trustee responsibility, but here is my list of primary issues that would keep me up at night as a trustee. This list is not in any particular order.
First, do you understand what the trust says and requires?
Second, have you marshalled and safeguarded the assets that are in or that are supposed to be in the trust? Are they in the trust and under your control?
Third, do you really understand your legal responsibilities including the wording and requirements in the trust, what the probate code and case law require of you? As a trustee you are a fiduciary. You have one of the highest standards of care, responsibility, liability and unbiased fairness and good faith required by law.
Fourth, are the trust assets being invested, managed and recorded properly and prudently? You need to evaluate and manage the returns and the risks, in accord with the wording of the trust and your fiduciary duties. So, for example, the stock market goes up and down. If the market goes down, is your approach to the portfolio management designed to help you avoid liability for losses?
Next, do you have the proper fiduciary demeanor and decision making approach required of a trustee?
Sixth, is the trust cash flow prudently managed? You might, for example, through no fault of your own have a trust with declining asset values or liquidity issues.
Next, do you know what to do if you have beneficiaries who are disagreeing with your decisions, or who are threatening litigation?
Eighth do you know what information you must or possibly should provide to the beneficiaries?
Ninth, do you understand that you have personal liability exposure for the actions that you take or don’t take as the trustee? You are required to be prudent with risk management. Also consider possible fiduciary insurance coverage although in most situations it isn’t required.
And last on this list, when necessary do you consult with professionals to advise you on your fiduciary duties and trust administration management?
That’s it for now. You can find more information at http://californiaestatetrust.com Thanks for listening.
Elder and dependent adult financial abuse is on the rise, and within the community resources and coordination are inadequate to address the issue. Adding to that difficulty, the possible indicators of elder and dependent adult financial abuse are numerous – it isn’t possible to provide an exhaustive list of financial abuse indicators – and although in some situations the occurrence of abuse is obvious many times whether actual abuse is occurring, or whether you should suspect that abuse is occurring, really depends upon the facts and circumstances at that time, and how you interpret those facts and circumstances. A legitimate explanation for the occurrence might also exist, or it is possible that the elder or dependent adult simply is making what might be considered to be an unwise decision that isn’t being caused by abuse.
All of the above having been said, it is recognized that there is a community-wide need for the collaboration of people and resources, and a visible discussion about elder and dependent adult financial abuse, how to spot it and what to do when it is suspected. The below list of possible financial abuse indicators is intended to be for helpful discussion purposes, recognizing that each situation must be separately evaluated.
As an overall initial indicator, basically, possible elder or dependent adult financial abuse typically becomes apparent from a financial, asset or property situation that appears to be unnatural or out of character for that elder or dependent adult, or for the typical similar person in society. For the purpose of this discussion, under California law a dependent adult is someone age 18 or older and an elder is someone age 65 or older.
So . . . the following are some of the possible indicators or situations where there is greater opportunity for abuse, including undue influence, to occur, but I am sure that you can also come up with additional indicators.
√ Increased or unusual banking activity.
√ An unusually, or out of the ordinary, large transaction.
√ The purchase of an unusual item or service.
√ Money being paid to or for the benefit of someone out of the ordinary. The person could be a stranger to the elder or dependent adult, a caregiver, a housekeeper, a neighbor, a friend, a gardener, or even a family member.
√ A change in account title or authority.
√ Someone improperly using his or her authority over the elder or dependent adult’s account. Possible a trustee, attorney in fact, co-account holder, family member, “friend” or other person.
√ Unusual credit card transactions or balances.
√ A change in deed or real property or account title or ownership.
√ Unusual ATM activity.
√ Telemarketing and mail fraud; fake prizes; fake accidents; unnecessary purchases or home improvements; getting a windfall upon the payment of money or by providing information.
√ Risky, unnecessary or unusual investments, insurance, warranties or annuities.
√ Unusual people accompanying the elder or dependent adult; new or unusual acquaintances; new “friends,” boyfriends or girlfriends.
√ The elder or dependent adult not speaking for himself, or herself; or some other person directing the elder or dependent adult, the situation or the proposed transaction.
√ The elder or dependent adult acting in a secretive or evasive manner; or perhaps in an overly defensive or hostile manner in response to questions or even in response to typical conversations.
√ The elder or dependent adult being forgetful, disorganized, disoriented, confused, or unaware of his or her surroundings or common events.
√ The elder or dependent adult acting paranoid or fearful about the bank or investment or financial institution, or about his or her accounts.
√ A change in the appearance, actions or demeanor of the elder or dependent adult; social withdrawal; unkempt; or health problems, including what is referred to as self-abuse.
√ The elder or dependent adult being concerned about who will help or assist him or her, or take care of him or her.
√ Expressions of concern, pressure, worry or fear.
√ Excessive payment for a product or subscription, or for services; or payment for an unnecessary product or subscription, or for services.
√ Excessive or unnecessary borrowing by the elder or dependent adult, or someone on his or her behalf.
√ The elder or dependent adult wanting to avoid conversation.
√ Unusual or unnatural will, trust, power of attorney, deed, mortgage or account terms or documents; or unusual or unnatural changes in the terms or conditions of those documents; or the unusual or unnatural selection or nomination of the person to exercise authority in or over those documents.
√ Documents, checks, payments, etc., missing, misplaced or stolen.
√ The elder or dependent adult being evicted, or loss of utilities.
√ The elder or dependent adult becoming isolated from others, either because of other people causing that isolation, or because of the elder or dependent adult’s lack of interest or motivation.
√ Forged, missing, or strange-looking signatures.
√ Changes in financial institution.
√ Changes in account, IRA, or insurance beneficiaries.
√ Unpaid bills.
√ The sudden appearance, assistance or interest of strangers, friends or relatives.
√ New people helping the elder or dependent adult around the house, or with the yard; home improvements.
√ Associating with much younger people.
√ Reluctance to discuss financial matters.
√ The elder or dependent adult’s increasing tiredness, withdrawal or depression.
√ The sudden or unexplained transfer of assets.
* * * * *
Dave Tate, Esq. (San Francisco / California)