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.
Tag Archives: executor
Attended San Mateo County Estate Planning Section Discussion About Trust Health, Education, Maintenance And Support Payments
Just a short note of interest. On Thursday I attended the monthly San Mateo County Bar Association Estate Planning and Probate Section monthly seminar luncheon. This one was about health, education, maintenance and support payment provisions in trusts. A very good discussion and good speakers. The handout materials were excellent. In particular the speaker from Trust and Fiduciary Services at Boston Private Bank & Trust Company gave an excellent discussion as she related the materials to actual cases and situations. These provisions can raise challenging issues for trustees, including, for example, how to gather information about and evaluate whether to pay for a particular expense based on what the expense, activity or event is, the trust wording and trustor intent, other options available, the beneficiary’s resources and needs, and the other assets in the trust and the other beneficiaries. These situations can lead to litigation and trustee liability. Risk management, due diligence, and various prudent options for handling these situations should be considered.
Investment Advisors – Having Your Client Agree To A Designated Helper For The Advisor To Contact
I have provided below a link to a discussion and a service by Carolyn Rosenblatt for investment advisors in situations where the mental capacity of an elder client might be questioned, and in situations of possible undue influence or elder abuse. As you might know, investment advisors have been encouraged to enact policies and processes for these situations. There might be additional legislation in this area later this year, or at least legislation relating to advisor fiduciary duty. Please click on the below link, and then also click on the additional link at the bottom of that page to view the 10 step video. These policies and processes are good ideas and are needed – and they might arguably also already be legally required under standard of care, prudent due diligence, and elder abuse reporting requirements.
As I have previously posted, however, the designated helper also will need to know an attorney that she or he can contact to remedy the situation through the court system. Reporting to adult protective services or the police in appropriate situations might or might not provide emergency relief, but APS and the police do not have the people, time, and expertise resources to pursue a case through the legal system. And here is a link to my elder abuse and protection presentation slides http://wp.me/p1wbl8-dm
Here is the link to Carolyn’s discussion
Thanks. Dave Tate, Esq., San Francisco and California
The purpose of this blog – to inform and educate, and personally connect with people who need legal help with trust, estate, conservatorship, power of attorney, and elder and dependent adult abuse litigation, and administrations
This year in 2016, I’m taking a more specific, targeted, pragmatic and personal approach to my two blogs – and a view toward what’s the goal; what’s working; what isn’t working; ROI; what are the options; what to change, improve and stop; and are we taking a too long-term or short-term view with the approach? I have used the word “personal” twice, in the heading and in the body of this post – “personal” is a definite goal. This really isn’t rocket science – but it’s just good to keep in mind. Have a good day.
Best. Dave Tate, Esq. (San Francisco/California)
Our Elder and Dependent Adult Abuse Prevention and Remedies Are Ridiculously Inadequate and Archaic – Insufficient Resources and Boots on the Ground, and No Collaboration
Let’s talk more about elder and dependent adult abuse and protection, and why we are failing in California. Prevention and remedies are ridiculously inadequate and archaic, particularly taking into account the numbers of cases of abuse.
I first started bringing elder and dependent adult abuse cases in 1993. My cases were primarily for physical, care, mental, undue influence, duress, fraud, financial, theft, real property, trust, and will abuse. I have to say that the more that things change they also stay the same. The same types of abuse still occur, and they always will. The cases were difficult then, and they still are. These cases take time and expertise. There is often difficulty obtaining evidence. And defendants really fight these cases, always arguing that nothing wrongful occurred, that the victim rightfully knew what they were doing and of their own free will, and in physical abuse cases that the injury naturally occurred due to the victim’s naturally poor condition. In other words, everything was known and on the up-and-up. Defendants in these cases count on the prospect that you will have difficulty proving the case, and that you will go away eventually for lack of resources and time. Nothing has really changed.
We should ask, what resources are available to fight elder and dependent adult abuse? The first line of prevention and defense includes good people who are family, friends, professionals such as doctors, bankers, caregivers, accountants and financial advisors, and sometimes other third parties. Will these people recognize the possible or actual abuse, and then also take action? Do they even know what action might be possible and who to contact? If so, most likely only to a certain limited extent.
The next line of defense probably includes law enforcement, adult protective services and the district attorney. Most likely these people only get involved because someone in the first line of defense has contacted them. I have previously discussed the inadequacy of the second line of defense – they simply do not have the time and people power and resources to handle the numbers of possible or actual abuse cases, or to stick with the cases long-term. They can pick some cases to attempt to handle.
I would say that the third line of defense includes the private attorneys. There are resources in this category that are under utilized, at least in part because people in the first category don’t know who to contact, people in the second category don’t know who to contact and aren’t authorized to contact or won’t contact people in the third line of defense, and it is also true that private attorneys also have resources and abilities that are not unlimited and each case must also be evaluated.
Improvements can be made to the situations described above. In particular, problems and issues relating to people in the first category, the first line of prevention and defense, can be improved by getting the information out so that they can better spot abuse or possible abuse and take action. Problems and issues relating to people in the second category, the second line of defense, can be improved with additional funding or monetary resources, and by having people in the second line of defense refer people or cases to the private attorneys in the third category or third line of defense. And efforts can be made to further educate attorneys in the third line of defense about the procedures, causes of action, and remedies that are available to them. Similarly, additional effort needs to be made to educate the courts, judges, and other legal system professionals about types of abuse, evidence that abuse has occurred, and the procedures, causes of action and remedies available.
And let me discuss one additional program, the ombudsman program, which every county in California is supposed to have, and the members/volunteers of which go into the nursing homes (SNF) and residential care facilities (RCFE) and similar entities to check on the care provided and advocate on behalf of the residents. I’m a board member of Ombudsman Services of San Mateo County, California. This is a tremendous nonprofit organization. They do great work. Ombudsman Services organizations do vary from county to county – they are run different, they have different funding, they have different numbers of volunteers, they have different training, they have different decision-making processes, and some are county-run whereas other’s are separate nonprofit entities, etc. Here is a link to Ombudsman Services of San Mateo County, http://ossmc.org/. I ask that you also donate to them if you wish.
That’s all for now. These cases really haven’t changed for over 20 years, in my experience. You might hear a commercial about reporting elder abuse, and those commercials are important, but it is really about having numbers of boots on the ground that make a difference. If the boots and referrals aren’t there, nothing will be done or remedied, and it goes on and on.
Dave Tate, Esq., San Francisco and throughout California, http://californiaestatetrust.com
From Trusts & Estates – Safeguarding Trusts from Future Ex-Spouse – Also Good Marketing for Estate Planning Attorneys
This is a very interesting article from Trusts & Estates that I almost overlooked. It isn’t the Massachusetts case discussion that interests me, it is that I never hear estate planning attorneys discussing these topics and using these topics to tell people additional reasons why they might need a trust and how trusts can be used, and to differentiate one estate planning attorney’s services from another. Click on the following link for the article, CLICK HERE
Dave Tate, Esq., civil (business, real estate, injury), trust, estate, conservatorship and elder abuse litigation and contentious administrations, representing fiduciaries, beneficiaries and family members, San Francisco and throughout California. See also my other blog for audit committees, http://auditcommitteeupdate.com
See Discussion Paper – A Summary of California Trustee and Beneficiary Responsibilities and Rights
Whether you are a trustee/fiduciary or a beneficiary, click on the following link for my summary paper discussing California trustee and beneficiary responsibilities and rights, A Summary of California Trustee and Beneficiary Responsibilities and Rights Dave Tate Esq 01052016
Dave Tate, Esq. San Francisco and throughout California – trust, estate, conservatorship and elder and dependent adult abuse litigation and contentious administrations; civil business, real estate and personal injury litigation; audit committees, D&O, risk, compliance and investigations. My other blog, http://auditcommitteeupdate.com
How To Handle A Stubborn Aging Parent – forwarding Carolyn Rosenblatt article
Here’s a worthwhile and encouraging post by Carolyn Rosenblatt – it’s not uncommon for an aging parent to need help, but legitimately they also want their independence. It can be difficult to reach a happy compromise. Click here for Carolyn’s article on Forbes.
Dave Tate, Esq., civil (business, real estate, D&O and personal injury) and trust, estate, conservatorship and elder and dependent adult abuse litigation, San Francisco and throughout California.
Updated Elder Abuse and Protection Presentation Slides – Please Read and Forward
I have provided below a link to a PDF of my October 12, 2015, updated elder and dependent adult abuse and protection presentation slides. The slides are extensive. This is an important topic – and the resources are not sufficient to prevent or remedy the problem.
Please read and also forward this post and the materials to other people who would be interested. Click on the following link for the PDF and slides, ELDER ABUSE AND PROTECTION 10122015 FINAL
You can also find other discussions about this topic on other blog posts.
Thank you. Dave Tate, Esq., San Francisco and throughout California
Don’t Forget To Update Your Beneficiary and Property Title Designations, But Sometimes It Can Be Fixed
The following is a link to an article by Gary Altman titled “Don’t Forget to Audit Your Beneficiary Designations,” Click Here For The Article. I’m going to change the title – it should be “Update,” and it should apply not only for beneficiary designations but also how title to property including real property is held. Mr. Altman hits on an important and relevant issue. I am seeing this issue arise more often in litigation with how financial accounts are held, insurance beneficiary designations, and title to real property (such as joint tenancy or right of survivorship) and certain personal property.
The general rule is that (1) on death the account assets, or the insurance proceeds, or the title to the property passes or transfers to the person or persons who are designated, if the surviving person or persons take the appropriate steps to complete the asset or title transfer, and (2) the general rule applies regardless of what the decedent’s will or trust provides because asset or title transfer passes by way of the designation or how title is held not by way of what the will or trust states.
As you can imagine, very significant problems can and do occur. People forget about the account, insurance, or property designations or how title is held, or they are confused or mistaken about the legal ramifications, or they intend differently, or in some situations there might have been undue influence, fraud, duress, abuse, or other wrongdoing. This is still a developing area of law.
The good news is that depending on the facts and circumstances of the case, and with sufficient evidence of the true facts and intent, in some situations it can be possible to fix these situations and the unintended consequences. But the best course of action obviously is to update these designations and how property is held while the person is still alive and to not have to try to do so post-death through the courts and litigation or agreement of all of the parties involved.
Dave Tate, Esq., San Francisco and throughout California, civil, trust, estate, conservatorship and elder and dependent adult litigation, and contentious administrations, http://californiaestatetrust.com and http://directorofficernews.com
Probate, trust, estate, will, elder abuse, real property, power of attorney, conservatorship, Probate Court, and contentious administration related disputes, conflicts and litigation; and mediator and dispute resolution services. http://Californiaestatetrust.com. Note, I am posting future posts to http://tateattorney.com 