Tag Archives: financial abuse

More News On Elder Abuse, And What People Are Doing – But You Cannot Treat Or Remedy It Without Private Attorneys

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I am writing about elder and dependent adult abuse more, and more often. Elder and dependent adult abuse already was and has been an epidemic. The topic, however, is in the news more often, and governmental units are increasing their discussions about elder and dependent adult abuse, but those discussions cannot treat or remedy the abuse – there simply are not sufficient time and experienced people resources to treat and remedy the problem. I encourage the increased efforts, but people need to understand that those resources still are entirely insufficient. It takes a lot of time, and expertise to prosecute these cases in court. A couple of cases can almost entirely occupy an attorney’s time. Long ago the California Legislature enacted the Elder Abuse and Dependent Adult Civil Protection Act to encourage private attorneys to take on these cases. Well . . . private attorneys cannot take on these cases if they aren’t contacted to do so, and in most instances governmental entities work in silos, and also will not refer to private attorneys. The ridiculousness of this situation is extremely frustrating.

I am attaching links to two new elder abuse articles. One of the articles HERE is by Forbes, discussing banks and what they are doing about elder abuse. Although identifying elder abuse and freezing an account might be helpful in certain cases, bank investigations and referral to adult protective services don’t provide the resources to prosecute and remedy the abuse. The other article HERE discusses a Dallas County effort to prosecute and remedy the abuse – I cannot determine from the article whether private attorneys are utilized – hopefully they are and that would be a step forward – but it is clear that without private attorneys the necessary resources absolutely do not exist and people should not talk as if they are truly prosecuting and remedying the abuse..

Dave Tate, Esq. (San Mateo County, the Bay Area, and California)

 

 

Ombudsman Services – San Mateo County – Annual Report 2014-2015 – 4,497 Care Facility Visits – 1,624 Investigations – And More Good Work

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Ombudsman Services SMC Visits Investigations FY 2014-2015

Below is a link to the San Mateo County, California, Ombudsman Services annual report for 2014-2015. The report shows amazingly substantial services for the year, including for example, 4,497 facility visits, and 1,624 investigations. As you might know, Ombudsman Services of San Mateo County, Inc. is committed to working with residents, families, facilities and stakeholders to create a community dedicated to protecting the rights of all residents living in long term care in San Mateo County. They challenge long-term care facilities to deliver the highest standards of individualized care for their residents, and advocate for the health, safety, and dignity of these residents and broader changes in the system.

The following is a link to the annual report – please take a look at this worthwhile organization that does good work on behalf of and protecting the rights of residents living in long term care facilities in San Mateo County, CLICK HERE

And please do pass this information and blog post to other people who would be interested in these very important services. Thank you.

Dave Tate, Esq., San Francisco and throughout California, civil, trust, estate, conservatorship and elder abuse litigation, and contentious administrations. My two blogs: http://californiaestatetrust.com and http://directorofficernews.com

There Needs To Be A Law – Petitioning For Conservatorship Should Not Disinherit You

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Short and sweet. I’m not sure what the wording should be, but we need a law that to some extent protects a person from being disinherited for filing a petition for conservatorship.

The situation that I have in mind: a son or daughter files a petition for conservatorship of their mother or father. In doing so, the son or daughter risks that mom or dad will be very angry with the petition and will seek to change their estate planning to exclude or disinherit the son or daughter.  There needs to be some protection for the son or daughter, whether the petition for conservatorship is granted or not.

I’m not saying that I favor conservatorships. A conservatorship can be a serious restriction on a person’s constitutional rights and freedom. All I’m saying is that a son or daughter should not have to fear possible disinheritance for filing a petition for conservatorship in a situation where there is no finding that the petition was filed in bad faith or where there is evidence that a conservatorship might be necessary even if less restrictive options are available.

Dave Tate, Esq. (San Francisco and California), click link to this blog, Law Office of David W. Tate, and also working with Albertson & Davidson LLP, northern and southern California click link to Albertson & Davidson website.

What is Elder and Dependent Adult Self Abuse or Neglect?

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This is a significant category of elder and dependent adult abuse or neglect that generally isn’t discussed or defined. When thinking about elder and dependent adult abuse most of us tend to first think about abuse committed by persons other than the victim, and those perpetrators are typically classified either as outside third party or family perpetrators. Statistically, I have read that approximately 1/3 of the perpetrators are outside third party perpetrators, and about 2/3 of the perpetrators are family members.

But what about self abuse or self neglect. The following is a definition of self neglect from the National Center on Elder Abuse – and then below that definition I have added one area to that description:

“Tragically, sometimes elders neglect their own care, which can lead to illness or injury. Self-neglect can include behaviors such as:

  • Hoarding of objects, newspapers/magazines, mail/paperwork, etc., and/or animal hoarding to the extent that the safety of the individual (and/or other household or community members) is threatened or compromised.
  • Failure to provide adequate food and nutrition for oneself.
  • Failure to take essential medications or refusal to seek medical treatment for serious illness
  • Leaving a burning stove unattended
  • Poor hygiene
  • Not wearing suitable clothing for the weather
  • Confusion
  • Inability to attend to housekeeping
  • Dehydration

Self-neglect is one of the most frequently reported concerns brought to adult protective services. Oftentimes, the problem is paired with declining health, isolation, Alzheimer’s disease or dementia, or drug and alcohol dependency.

In some of these cases, elders will be connected to supports in the community that can allow them to continue living on their own. Some conditions like depression and malnutrition may be successfully treated through medical intervention. If the problems are severe enough, a guardian may be appointed.”

See also the discussion about self neglect by the National Clearinghouse on Abuse in Later Life at Click Here.

The area that I would add is financial elder and dependent adult self abuse or neglect – i.e., difficulty or the inability to make sound financial management decisions or choices, also including (1) lack of or difficulty with mental capacity and ability to understand the issues and choices at hand, (2) delay, procrastination or simply not making decisions that need to be made, and (3) also including an already recognized area of abuse by a third party which is the inability to resist the efforts or activities by a perpetrator of financial abuse.

I am seeing an already not insignificant, and an increasing number of materials and articles about elder and dependent adult situations that fit the financial elder and dependent adult self abuse or neglect definition.

These situations can raise a whole host of issues to address, such as how to protect the elder or dependent adult without violating his or her rights, in addition to satisfying personal third party duties and avoiding personal third party liability.  A scenario, for example, where you might see this type of situation in the financial category is when the elder or dependent adult goes to consult with his or her banker, investment advisor or financial advisor and the banker or advisor sees or gets a feeling that there are or might be actions or occurrences by the elder or dependent adult that evidence financial elder or dependent adult self abuse or neglect.

Please do pass information about self abuse, this blog and this blog post to other people who would be interested.

Dave Tate, Esq. (San Francisco), Civil Litigation; Trust, Estate, Conservatorship and Elder Abuse Litigation; Trust, Estate and Conservatorship Administration; Representing Fiduciaries and Beneficiaries.

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

Mandated Elder & Dependent Adult Abuse Reporting – Then What’s Next – Community Response

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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.

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Dave Tate, Esq. (San Francisco / California)

Admissibility of Hearsay Evidence of a Decedent’s Will or Trust

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In will and trust contest actions the person who signed or who supposedly signed the will or trust is usually deceased.  Statements that the decedent previously made are considered hearsay, i.e., a statement made out of court that is being admitted for the truth of the statement, and are not admissible in evidence unless a hearsay exception applies. California Evidence Code section 1260 provides an important possible hearsay exception that may apply in will and trust contest cases; however, the applicability of section 1260 depends on a determination by the Judge in the case and applicability can vary from case to case and from Judge to Judge.

California Evidence Code section 1260 provides as follows:

Section 1260.  (a) Except as provided in subdivision (b), evidence of any of the following statements made by a declarant who is unavailable as a witness is not made inadmissible by the hearsay rule:

(1) That the declarant has or has not made a will or established or amended a revocable trust.

(2) That the declarant has or has not revoked his or her will, revocable trust, or an amendment to a revocable trust.

(3) That identifies the declarant’s will, revocable trust, or an amendment to a revocable trust.

(b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances that indicate its lack of trustworthiness.

And, in an action involving a claim or demand against an estate of a decedent, California Evidence Code section 1261 also provides an additional possible hearsay exception in appropriate circumstances as determined by the Judge in the case.  Section 1261 provides as follows:

Section 1261.  (a) Evidence of a statement is not made inadmissible by the hearsay rule when offered in an action upon a claim or demand against the estate of the declarant if the statement was made upon the personal knowledge of the declarant at a time when the matter had been recently perceived by him and while his recollection was clear.

(b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances such as to indicate its lack of trustworthiness.

Dave Tate, Esq. (San Francisco / California)

Will and Trust Undue Influence in California

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Undue influence is typically proven by inference or circumstantial evidence, not limited to the actual time that the will or trust was executed but also based on facts relevant to the issues both before and after execution. Estate of Franco (1975) 50 Cal. App. 3d 374, 382; Estate of Baker (1982) 131 Cal. App. 3d 471, 481.  To make the determination more difficult, different law and standards can apply depending on whether the document in question is a will or trust, different judges will apply different standards and approaches, and there can be a presumption that a signed will or trust that isn’t a forgery is valid and effective. On the other hand however, a presumption of undue influence can apply in certain statutory, fiduciary, and confidential relationship situations.  The facts and evidence in each case need to be carefully evaluated particularly when the will or trust contains provisions that are not natural to what the testator would have wanted and in cases where there are significant sudden or significant changes.

Undue influence consists of conduct that causes the testator to make a disposition of his or her property that is different from that which he or she could have done had he or she been permitted to follow his or her own inclination. Estate of Baker (1982) 131 Cal. App. 3d 471, 480-81.

Pursuant to California Civil Code §1575, undue influence exists upon any one of the following separate and distinct criteria:

(1) the use, by one in whom confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him;

(2) taking an unfair advantage of another’s weakness of mind; or

(3) taking a grossly oppressive and unfair advantage of another’s necessities or distress.

There is no fixed definition or inflexible formula – rather the question is whether from the entire context it appears that the testator was induced or his decision making was induced to do or forbear to not an action which he or she would not do, or would do, if left to act freely. Keithley v. Civil Service Board (1970) 11 Cal. App. 3d 443, 451.

Under Cal. Civ. Code §1575(2) the weakness of mind can be temporary and need not be incapacitating. Odorizzi v. Bloomfield School District (1966) 246 Cal. App. 2d 123, 131. Under Cal. Civ. Code §§1575(2) and (3) the use of over-persuasion is often accompanied by certain characteristics examples of which might be: discussion of the transaction at an unusual or inappropriate time; consummation of the transaction in an unusual place; insistent demand that the event be finished at once; emphasis on the untoward consequences of delay; the use of multiple persuaders; the absence of third-parties; or statements that there is no time to consult others. Odorizzi v. Bloomfield School District (1966) 246 Cal. App. 2d 123, 133.

Although fraud and undue influence are separate grounds for setting aside a will, and undue influence can be found without any fraud, undue influence also can be a species of fraud or constructive fraud as undue influence and fraud can be closely related and fraud may be considered in determining whether there was undue influence. Estate of Garibaldi (1961) 57 Cal. 2d 108, 114; O’Neil v. Spillane (1975) 45 Cal. App. 3d 147, 158 (undue influence as a species of constructive fraud); Stewart v. Marvin (1956) 139 Cal. app. 2d 769, 775 (undue influence as a species of constructive fraud); Estate of Newhall (1923) 190 Cal. 709, 718; Estate of Ricks (1911) 160 Cal. 467, 480; however, see also, Hagen v. Hickenbottom (1995) 41 Cal. App. 4th 168(a showing of false or fraudulent statement is not a necessary element of undue influence).

The California elder abuse statutes provide yet another statutory definition of undue influence.  California Welfare and Institutions Code section §15610.70 provides the following definition:

15610.70. (a) “Undue influence” means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity. In determining whether a result was produced by undue influence, all of the following shall be considered:

(1) The vulnerability of the victim. Evidence of vulnerability may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability.

(2) The influencer’s apparent authority. Evidence of apparent authority may include, but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification.

(3) The actions or tactics used by the influencer. Evidence of actions or tactics used may include, but is not limited to, all of the following:

(A) Controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep.

(B) Use of affection, intimidation, or coercion.

(C) Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes.

(4) The equity of the result. Evidence of the equity of the result may include, but is not limited to, the economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship.

(b) Evidence of an inequitable result, without more, is not sufficient to prove undue influence.

The facts and evidence in each case need to be carefully evaluated.

Dave Tate, Esq. (San Francisco / California)

Determining California Mental Capacity to Execute a Trust or Will

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The mental capacity to execute a trust or trust amendment is primarily based on California Probate Code §§810-812, and the mental capacity to execute a will or will codicil is primarily based on California Probate Code §6100.5; however, in the case of a trust or trust amendment §6100.5 may apply if the provisions are more simple in nature, and in the case of a will the provisions of §§810-812 may apply if the provisions are more complicated and in the nature of a trust. Andersen v. Hunt (2011) 196 Cal. App. 4th 722; Lintz v. Lintz (2014) 222 Cal. App. 4th 1346. However, various other rules and case law also apply including that it is the intent and natural wishes of the decedent testator that should prevail, extrinsic evidence and evidence of the surrounding circumstances might be admissible to determine that testator’s intent, presumptions for and against the validity of a document apply in certain circumstances, and the validity of the document can also be attacked in various other circumstances including for example, undue influence, fraud, forgery, elder abuse, fiduciary or confidential relationship and mistake.

California Probate Code §§810-812 provide:

Section 810. The Legislature finds and declares the following:

(a) For purposes of this part, there shall exist a rebuttable presumption affecting the burden of proof that all persons have the capacity to make decisions and to be responsible for their acts or decisions.

(b) A person who has a mental or physical disorder may still be capable of contracting, conveying, marrying, making medical decisions, executing wills or trusts, and performing other actions.

(c) A judicial determination that a person is totally without understanding, or is of unsound mind, or suffers from one or more mental deficits so substantial that, under the circumstances, the person should be deemed to lack the legal capacity to perform a specific act, should be based on evidence of a deficit in one or more of the person’s mental functions rather than on a diagnosis of a person’s mental or physical disorder.

Section 811. (a) A determination that a person is of unsound mind or lacks the capacity to make a decision or do a certain act, including, but not limited to, the incapacity to contract, to make a conveyance, to marry, to make medical decisions, to execute wills, or to execute trusts, shall be supported by evidence of a deficit in at least one of the following mental functions, subject to subdivision (b), and evidence of a correlation between the deficit or deficits and the decision or acts in question:

(1) Alertness and attention, including, but not limited to, the following:

(A) Level of arousal or consciousness.

(B) Orientation to time, place, person, and situation.

(C) Ability to attend and concentrate.

(2) Information processing, including, but not limited to, the following:

(A) Short- and long-term memory, including immediate recall.

(B) Ability to understand or communicate with others, either verbally or otherwise.

(C) Recognition of familiar objects and familiar persons.

(D) Ability to understand and appreciate quantities.

(E) Ability to reason using abstract concepts.

(F) Ability to plan, organize, and carry out actions in one’s own rational self-interest.

(G) Ability to reason logically.

(3) Thought processes. Deficits in these functions may be demonstrated by the presence of the following:

(A) Severely disorganized thinking.

(B) Hallucinations.

(C) Delusions.

(D) Uncontrollable, repetitive, or intrusive thoughts.

(4) Ability to modulate mood and affect. Deficits in this ability may be demonstrated by the presence of a pervasive and persistent or recurrent state of euphoria, anger, anxiety, fear, panic, depression, hopelessness or despair, helplessness, apathy or indifference, that is inappropriate in degree to the individual’s circumstances.

(b) A deficit in the mental functions listed above may be considered only if the deficit, by itself or in combination with one or more other mental function deficits, significantly impairs the person’s ability to understand and appreciate the consequences of his or her actions with regard to the type of act or decision in question.

(c) In determining whether a person suffers from a deficit in mental function so substantial that the person lacks the capacity to do a certain act, the court may take into consideration the frequency, severity, and duration of periods of impairment.

(d) The mere diagnosis of a mental or physical disorder shall not be sufficient in and of itself to support a determination that a person is of unsound mind or lacks the capacity to do a certain act.

(e) This part applies only to the evidence that is presented to, and the findings that are made by, a court determining the capacity of a person to do a certain act or make a decision, including, but not limited to, making medical decisions. Nothing in this part shall affect the decisionmaking process set forth in Section 1418.8 of the Health and Safety Code, nor increase or decrease the burdens of documentation on, or potential liability of, health care providers who, outside the judicial context, determine the capacity of patients to make a medical decision.

Section 812. Except where otherwise provided by law, including, but not limited to, Section 813 and the statutory and decisional law of testamentary capacity, a person lacks the capacity to make a decision unless the person has the ability to communicate verbally, or by any other means, the decision, and to understand and appreciate, to the extent relevant, all of the following:

(a) The rights, duties, and responsibilities created by, or affected by the decision.

(b) The probable consequences for the decisionmaker and, where appropriate, the persons affected by the decision.

(c) The significant risks, benefits, and reasonable alternatives involved in the decision.

California Probate Code §6100.5 provides:

Section 6100.5. (a) An individual is not mentally competent to make a will if at the time of making the will either of the following is true:

(1) The individual does not have sufficient mental capacity to be able to (A) understand the nature of the testamentary act, (B) understand and recollect the nature and situation of the individual’s property, or (C) remember and understand the individual’s relations to living descendants, spouse, and parents, and those whose interests are affected by the will.

(2) The individual suffers from a mental disorder with symptoms including delusions or hallucinations, which delusions or hallucinations result in the individual’s devising property in a way which, except for the existence of the delusions or hallucinations, the individual would not have done.

(b) Nothing in this section supersedes existing law relating to the admissibility of evidence to prove the existence of mental incompetence or mental disorders.

(c) Notwithstanding subdivision (a), a conservator may make a will on behalf of a conservatee if the conservator has been so authorized by a court order pursuant to Section 2580.

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