Tag Archives: financial abuse

Evidence In Court – Some Thoughts To Keep In Mind To Prove Your Case

Posted on by

Some thoughts to keep in mind about evidence in Court to prove your case:

-One item of evidence in Court can be sufficient to establish a fact.

-Evidence can be oral or documentary/demonstrative, or both.  Generally, documentary or demonstrative evidence is more persuasive.

-Not all evidence is admissible.  The Judge determines admissibility.

-The trier of fact, i.e., the Judge or Jury depending on the type of case, determines which of the admissible evidence is most persuasive.

-The applicable standard or standards of care, and the burden or burdens of proof, and in some cases the shifting of the burden(s) of proof, are very important on the issues of liability and which party prevails in Court.

-I view evidence as falling in three different categories: (1) evidence that already exists and that we have in hand; (2) evidence that we don’t have but we very reasonably believe exists and we know where it is, how we can get it, and that we will get it; and (3) evidence or facts that we believe or hope exists but we don’t know if we will be able to get it.

-If you can’t sufficiently describe what you did and what did occur (and hopefully support them with documents or demonstrative evidence), you run the risk that it might be decided that you didn’t do it or that it didn’t occur.

-Your story must tell, and convince the trier of fact (i.e., the Judge or Jury) why you are there in front of them.

-Evidence also relates to damages and possible recovery or payment of attorneys’ fees and costs – what damages can be established, are the damages recoverable, and what are the possibilities of a party recovering or having to pay costs and attorneys’ fees to the other side?

-Consider the above when you are evaluating the probability of your case.

Dave Tate, Esq. (San Francisco / California)

 

Financial Abuse – Defined by Welfare & Institutions Code §15610.30

Posted on by

The following is the statutory definition of financial abuse of an elder or dependent adult as defined in California Welfare & Institutions Code §15610.30. Many of the aspects of the definition and its meaning as applied to different situations remain yet to be interpreted by the Courts. Nevertheless, the definition is helpful in may clear situations of abuse, and applicability can be argued in less clear situations.

(a) “Financial abuse” of an elder or dependent adult occurs when a person or entity does any of the following:

(1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.

(2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.

(3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 1575 of the Civil Code

(b) A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.

(c) For purposes of this section, a person or entity takes, secretes, appropriates, obtains, or retains real or personal property when an elder or dependent adult is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult.

(d) For purposes of this section, “representative” means a person or entity that is either of the following:

(1) A conservator, trustee, or other representative of the estate of an elder or dependent adult.

(2) An attorney-in-fact of an elder or dependent adult who acts within the authority of the power of attorney.

Dave Tate, Esq. (San Francisco / California) – trust, estate, conservatorship, elder and civil litigation, and contentious administrations.

Review of Celebrity Estate Planning and Litigation Lessons

Posted on by

A great article, review of celebrity estate planning and litigation lessons, click here (and for additional discussion, click on the link at the bottom of the article).

Dave Tate, Esq. (San Francisco / California), trust, estate, conservatorship, elder and civil litigation, and contentious trust and estate administrations.