Tag Archives: elder

Using Social Security Information To Restrict The Rights Of Some Beneficiaries To Own Guns

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Here’s an interesting development and article from the Los Angeles Times, CLICK HERE, discussing the Obama Administration’s push to use social security and social security information about elder and other beneficiary disabilities and limitations as a means to restrict people from owning guns. Putting aside whether you are pro-gun or anti-gun, I have problems with the use of that information for this purpose from a government mandated program, which information also should be private, how the government would determine that someone is incapable of owning a gun, and that the determination is made without any legal adjudication by an independent court. This effort targets the elderly, people who have been mandated to pay into the social security system, and people with disabilities including disabilities that don’t necessarily establish an inability to own a gun.

Dave Tate, Esq. (San Francisco / California).

NAIC Seniors Consumer Insurance Fraud Alert – An Area Of Board Oversight?

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The following is a link to something interesting that I came across – an alert by the National Association of Insurance Commissioners about insurance fraud scams against seniors.

Click to access legal_bulletin_seniors_beware.pdf

. The alert contains interesting statistics about the amount of possible fraud, such as “free lunch” seminars. Not to say that a “free lunch” seminar is necessarily a fraud scheme. But as we all know, the purpose of a “free” seminar is to find buyers. For me, however, the alert points to a different problem. The alert assumes that a senior who goes to a “free” seminar, for example, is mentally competent to follow the steps indicated to critically evaluate and resist the fraud. That assumption begs the question or issue: does the senior have the mental competency and fortitude to critically evaluate and resist the sales pitch? In my experience, it’s not uncommon that a senior does not have that mental capacity. Thus, in that circumstance the senior does not have the mental capacity to follow the recommendations provided by the NAIC in its alert, in which case the alert is useless, which also is the intent of the insurance sales person who is trying to sell a senior an insurance product that is not appropriate for the senior. At least policies and procedures, and board oversight of those policies and procedures, are needed so that the insurance entity and broker have in place detailed policies and procedures to determine that only appropriate policies are sold, through appropriate marketing means, with special attention to and oversight of marketing and policies sold to seniors, with the ability of the senior to rescind the policy, without having to hire legal counsel to fight it out with the insurance entity. Where is this requirement, how is it implemented, and where is the board’s active oversight?

Dave Tate, Esq. (San Francisco / California), http://californiaestatetrust.com, http://directorofficernews.com

Elder and Dependent Adult Abuse and My PowerPoint Presentation Slides

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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

Study Finds Antipsychotic Drugs For Dementia Patients Increase Risk of Death

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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

Alzheimer’s Cause Might Be Tau Protein – But At Law The Issues Are Mental Capacity, Natural Wishes, Fraud and Undue Influence

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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

Dementia care divides many families – from NBC

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Dementia and how to care for the person who has dementia divides many families. Click on the following link for a good discussion about family dynamics and disagreements.  Estate planning documents can help avoid some of the issues – such as power of attorney, health care directive, living will, trust, and other documents.  Still disagreements and contests over who will be the decision maker and what care will be provided will persist. I’m reminded of a sibling family dispute case that I was involved in over Mom’s care, her diagnosis and prognosis, whether or not Mom could communicate by blinking her eyes, Mom’s wishes for her quality of life and care, and whether Mom would want to be or should be disconnected from the hospital machine support. Click on the following link for the NBC article, CLICK HERE

Dave Tate, Esq. (San Francisco and California)

Massachusetts legislation to help with in-home care services and costs

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The following is a link to a short discussion about possible legislation in Massachusetts to assist with in-home care services and costs, CLICK HERE.

Dave Tate, Esq. (San Francisco / California)

California Trustee – What Would Keep Me Up At Night – February 2015

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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

Text:

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.

INDICATORS OF ELDER AND DEPENDENT ADULT FINANCIAL ABUSE

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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)

Donations to Hospital and Allegations of Coercion and Contested Will

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The following is a link to an interesting New York Times article dated May 29, 2013, Huguette Clark’s will and estate, and allegations that she was coerced by the hospital where she had been staying for the last 20 years of her lift to donate money and assets to the hospital and to leave the hospital $1 million in her will.  Click here for article.

My initial thoughts, based on the information provided by the article.  The article does refer to information provided in papers that have been filed with the court, and of course we don’t have those papers which presumably do contain significant information that will be admissible as evidence at the scheduled September trial.  Ms. Clark was extremely wealth.  Living in a hospital for the last 20 years of her life certainly is unusual.  However, the article doesn’t indicate that she lacked capacity to make that decision at least early in her 20-year stay.  Ms. Clark had the money to live anywhere that she wanted.  Ms. Clark was in bad shape when she first entered the hospital and they treated her back to health.  Apparently she felt safe and well-cared for in the hospital.

If Ms. Clark’s family members or friends were concerned about her mental capacity and decision making, or if they were concerned that the hospital was unduly influencing her, the article doesn’t indicate that Ms. Clark was ever conserved by her family members or that there was any attempt to conserve her during the 20 year hospital stay.

Ms. Clark did pay for the cost of her stay at the hospital.  The article doesn’t provide information about those costs.  The article indicates that Ms. Clark left $1 million to the hospital in her will, that she had donated to the hospital an additional $4 million during the 20 years, and that her estate was worth $300 million on her death.  The article also indicates or suggests that the hospital did try to get Ms. Clark to donate additional funds to the hospital.  The attorney for the parties who are contesting the will in part stated: “What this is about is not just a will contest, it’s about the accountability of professionals.”

My initial take away based on the information provided in the article (but of course additional information could indicate otherwise): inadequate evidence that Ms. Clark lacked mental capacity, or that she was coerced, and given the amount of her wealth it is arguable that she really wasn’t generous to the hospital but was instead generous to the people and entities who do inherit the majority of her wealth.  Given that Ms. Clark had lived at the hospital for 20 years, it would not have surprised me if she had left more to the hospital.