See also http://tateattorney.com – business litigation, and internal business related disputes, conflicts, and litigation, officers, directors, co-ownership, governance, workplace, audit committees and governance committees; and mediator services.
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.
Click on the following link for an article out of Australia, elder abuse is domestic violence and is on the rise – the government makes a $100 million pledge: Click Here For The Article
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
Click on the following link for a copy of the new California End of Life Option Act, End of Life Option Act. I’m just spotting elder and dependent adult abuse issues here – I’m not discussing political, religious, personal, ethical or other issues.
The Act proposes to include protections to ensure that a person who uses the Act is not being unduly influenced. Obviously undue influence, duress, fraud, etc. are concerns in any situation. By my count undue influence is listed 5 times in the Act, so it is an obvious concern. You can match that concern with similar efforts to influence an elder’s estate planning or gifting, and also with the new California revocable transfer on death deed which I discuss at this prior blog post http://wp.me/p1wbl8-cI.
Having an outside third person, as the Act provides, assert that the person using the Act hasn’t been unduly influenced is not necessarily trustworthy as the third person has not been personally present to observe and hear what influence, fraud or duress, if any, has been attempted, including simply negative statements about how awful or useless life has become.
I have also seen situations where it was thought that a person was ill or injured, and would die, only to find out later that the cause was improper medications or some other undiagnosed reason, and the person recovered with proper diagnosis and treatment.
As I said, I’m just spotting issues here. People need to be vigilant.
I am seeing more materials and promotions by organizations reporting and combating elder abuse. All of that is for the good and obviously is encouraged and a lot more is needed. The efforts primarily involve spotting elder abuse and reporting to law enforcement, adult protective services or some other governmental entity. I’m also seeing more proposals to have or to offer to have a written form allowing a client to authorize an organization to contact a specific person, such as a spouse or other family member, if the organization believes that the client is being subjected to elder abuse. The written authorization is a good step in the right direction. But let me also tell you, and this comes from years of experience, you must have collaboration with private attorneys to combat and remedy elder abuse. This isn’t a negative comment – it’s just a fact that there will never be sufficient government and APS resources to combat and remedy the numbers of cases of elder abuse and the time and expertise that it takes to handle these cases. Collaboration with private attorneys is needed. I prepared a short blog post video on this in April 2015, which you can see on the following link (note, this video is prepared prior to recent equipment and presentation improvements), http://wp.me/p1wbl8-aT
I am also updating my elder abuse presentation slides, which I last posted in May of this year. I will post the updated slides in a couple of days, so do stay in touch.
California Revocable Transfer On Death Deeds – see the video immediately below, and the primary text for the video at the bottom of this post. Thank you. Please pass this information to other people who would be interested.
P.S., and another “bad” passed along by a friend on LinkedIn – the transferred property might be (most likely is) subject to recovery by Medi-Cal to reimburse the state for expenses paid by Medi-Cal for care during the transferor’s life – in other words, use of the revocable transfer on death deed might not be (most likely isn’t) wise Medi-Cal planning. But I don’t believe many people will be aware of that. The ability to transfer property by way of the revocable transfer on death deed also is not available for all types of property – that is, for some properties the use of the deed is not available. Everyone using or potentially using the revocable transfer on death deed needs to be aware of all of the options available including when it might be used, when it cannot be used, and the results of both. My recommendation: seek knowledgeable legal counsel.
Dave Tate
Text: California Revocable Transfer On Death Deeds
Hello, I’m Dave Tate. I’m a civil and trust, estate, conservatorship and elder abuse litigation attorney. I practice in San Francisco and throughout California. I also represent fiduciaries and beneficiaries in administrations.
This discussion is about the new California revocable transfer on death deed. You can find additional information on my blog at http://californiaestatetrust.com.
You may have heard that California now recognizes a new revocable transfer on death deed for transferors who die on or after January 1, 2016. There are statutory requirements however. And here are a few of them.
The deed must appropriately identify the beneficiary or beneficiaries.
The transferor must sign and date the deed and have the deed acknowledged before a notary public.
The deed must be recorded on or before 60 days after the date that is was executed.
The transferor must have the mental capacity to contract.
If the deed is still valid and not revoked or otherwise overruled or superseded by another document, on the death of the transferor the property passes to the named beneficiary or beneficiaries without probate.
I expect that the revocable transfer on death deed will become a popular estate distribution transfer tool if the public is extensively educated about its availability and use.
The deed is promoted as an opportunity to transfer real property on death without having to incur the costs of having a will or trust prepared, or probate. That’s the opportunity for good.
On the other hand, the deed also presents opportunities for mistake and elder abuse.
The validity and operation of a revocable transfer on death deed are subject to statutory rules and requirements. Very importantly, these are rules and requirements that can be misunderstood, resulting in mistakes and unintended consequences.
As you might imagine, use of the deed also presents issues relating to intent and transferor lack of mental capacity, and opportunities for undue influence, fraud, duress, and elder abuse by family members, friends and third parties.
The validity of the deed can be contested. And I do expect that there definitely will be contests. So we will be seeing how these new revocable transfer on death deeds are used and abused.
That’s it for now. There are of course other cases and statutory provisions that can apply, and the facts of each situation are different. This discussion doesn’t constitute legal advice. You need to consult a lawyer or professional for your situation. You can find more information on my blog at http://californiaestatetrust.com. Thanks for listening.
P.S., please see also the comment above at the top of this blog post about recovery of the property to reimburse Medi-Cal for expenses paid, and that the ability to transfer property by way of the revocable transfer on death deed also is not available for all types of property – that is, for some properties the use of the deed is not available. Everyone using or potentially using the revocable transfer on death deed needs to be aware of all of the options available including when it might be used, when it cannot be used, and the results of both. My recommendation: seek knowledgeable legal counsel.
Please click on the following link for a worthwhile article by Mehrdad Avati, M.D., in which he discusses mental capacity determinations, different tests, and evaluation. For the article, Click Here
Enjoy,
Dave Tate, Esq. (San Francisco and throughout California)
Blogs: trust, estate, conservatorship and elder abuse litigation, and administrations, http://californiaestatetrust.com, and D&O, boards and audit committees, http://directorofficernews.com
I have a high interest in the validity or lack of validity of will, trust and other estate planning and transfer documents including related mental capacity, undue influence, fraud, decedent or testator intent, document and wording interpretation, and elder abuse. These are issues or criteria that we very often see in will and trust disputes, and financial elder abuse. It’s not too difficult to find discussions in which the author defines undue influence in various legal terms or definitions, and in deed you can find similar discussions in my materials, including that the definitions have changed and are changing over time and that they also depend on the nature of the document or issue at hand including for example whether the document is a will or trust and the sophistication or complexity of the document and its contents. However, as a trial attorney dealing with evidence and expert witnesses the victim’s susceptibility to undue influence and whether or not the victim was in fact unduly influenced or unduly persuaded are equally or perhaps more interesting.
For example, there are many new articles being written about dementia and new findings about how early cognitive deficiencies are being found (i.e., much earlier that previously thought); however, a deeper look considers the extent to which the deficiency makes the person susceptible to undue influence and all of the factors that go into that evaluation. As I like to pass along to my readers worthwhile information and links written by other people, the following is a link that contains discussions about undue influence and susceptibility from a psychological perspective. I believe it is worthwhile reading. Click on the following link for the materials, CLICK HERE
And if you come across materials on these topics that you believe that I should read please do pass them along to me.
Thank you. Have a good weekend. Dave Tate, Esq. (San Francisco/California)
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.
. 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?
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 