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: intent
Donations to Hospital and Allegations of Coercion and Contested Will
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.
New California eminent domain jury verdict – county owes $1.24 million to landowner – from California real estate law blog
We found this in the Daily Republic (Jess Sullivan reporting), Click Here For Article, a Solano County California court has found that the portion of the privately owned land that the county took for a new road was worth more than twice the county’s $575,000 deposit, and in excess of two times the $474,408 value testified to by the county’s second appraiser. And it is likely that the landowner will be entitled to recover attorneys’ fees and costs pursuant to Cal. Code Civ. Proc. sec. 1250.410. See also Gideon’s Trumpet blog for additional discussion, Click Here For Blog.
This information was also posted at http://taterealestatelaw.com.
Dave Tate, Esq. (San Francisco)
Experts Agree – The “System” For Financing Long-Term Care Is Crumbling?? That’s Not News . . .
I found this article today – discussing that the “system” for financing, i.e., paying for, long-term care is crumbling. Click Here For Article.
I just have to say, that isn’t news. Long-term care is unbelievably expensive. Husbands/fathers, wifes/mothers, and their children have been paying huge costs for long-term care for years. It’s expensive in an outside facility, and at-home care is expensive. And then sometimes there are issues relating to the level or manner of care provided.
I’m not an expert on the financial aspects of the long-term financing programs. But I can hope that at the governmental level we have some legislators who understand it and who have developed a strategy for the long-term sustainability and improvement. But I never hear anything that sounds comforting or impressive.
Dave Tate, Esq. (San Francisco)
Trust, Estate & Elder Litigation, A Daily Paper; Protecting Seniors From Scams
New daily updated edition of California Trust, Estate & Elder Litigation, a daily paper containing new articles and discussions about California trust, estate, conservatorship and elder litigation, Click Here For Paper.
Protecting seniors from scams, Click Here For Article.
Enjoy, and pass along,
Dave Tate, Esq. (San Francisco)
Vidal Sassoon’s Will Two Months Before Death Disinherits Son?
Vidal Sassoon’s Will Two Months Before Death Disinherits Son?
According to an article on MSN, Click Here For Article, Vidal Sassoon’s will, executed two months before his death, disinherits his son and his son’s issue (children). In California a decedent’s estate is supposed to be distributed to the people in the amounts that the decedent would have intended. Is a will or trust valid and are the terms enforceable? Sometimes and sometimes not. Some of the possible issues include: is there evidence of undue influence; was there a lack of mental capacity to understand the will or trust and its terms; are the terms of the will or trust vague, ambiguous or incomplete; are the terms of the will or trust unnatural to what the decedent would have wanted based on historical evidence; is there evidence of fraud; are the beneficiaries statutorily prohibited from inheriting (such as because of involvement in the drafting or transcription of the will, or caregivers, or for other reasons); was the will or trust properly executed; are there medications or infirmities involved; who has the burden of proof and can it be shifted to another party; and other possible issues and claims. Will and trust disputes are complicated, law and evidence intensive, and very contentious.
Dave Tate, Esq. (San Francisco and California) – Trust, Estate, Conservatorship & Elder Litigation.
Ageless Alliance Against Elder Abuse – Check It Out
The following is a link to the website for Ageless Alliance at UC Irvine, united against elder abuse. Check it out, Click Here For Website.
Dave Tate, Esq. (San Francisco)
Contact me if you need assistance with a court case or proceeding, a dispute, or a contentious administration.
Conservatorship Dementia Medical Treatment & Placement in California
Conservatorship Dementia Medical Treatment & Placement in California
California courts are more closely scrutinizing conservatorship requests for authority to administer dementia medications, and to place a conservatee in a secured or locked facility. The Probate Code contains specific pleading and evidentiary requirements when these issues are present. Although the specific requirements add complexity to conservatorship proceedings, the provisions are designed to protect the conservatee’s constitutional and personal rights. In some cases these provisions can present the Judge with a “tough call” scenario.
As with all of my blog posts, this post does not provide legal or other professional advice, is only a summary of a complicated topic area, and cannot be relied upon for your situation. You need to separately obtain legal or professional advice for your situation.
In summary, California Probate Code §2356.5 provides that the court can grant authority to place a conservatee in a secured parameter residential care facility if the court finds, by clear and convincing evidence, all of the following:
-The conservatee has dementia;
-The conservatee lacks the capacity to give informed consent to placement;
-The conservatee needs or would benefit from a restricted or secure environment as demonstrated by evidence presented by a physician or psychologist; and
-The proposed placement in a locked facility is the least restrictive placement appropriate.
Probate Code §2356.5 further provides that the court can grant authority for the administration of medications for the care and treatment of dementia if the court finds, by clear and convincing evidence, all of the following:
-The conservatee has dementia;
-The conservatee lacks the capacity to give informed consent to the administration of medications appropriate to the care of dementia; and
-The conservatee needs or would benefit from that medication as demonstrated by evidence presented by a physician or psychologist.
Section 2356.5 further provides that the petition shall be supported by a sufficient declaration by an appropriate licensed physician or psychologist, and that the provisions of §2357, which is discussed below, shall govern the petition for authority to act under §2356.5. In other words, pursuant to statute, in some circumstances the court is authorized to determine the petition and the issues presented based on hearsay affidavit or declaration evidence by a licensed physician or psychologist, without cross-examination. Whether or not such a provision should be lawful is a topic for other discussions – the fact is that the statute provides as it does. Also consider whether personal attendance of the physician or psychologist at trial is required if there is an objection to his or her declaration or affidavit, or if the physician or psychologist is subpoenaed for trial, or simply if an evidentiary trial is requested. See also my blog post below about K. G. v. Meredith, a 2012 California Court of Appeal LPS conservatorship decision mandating requirements for serving notice and supporting papers (i.e., the notice, the petition and declarations or affidavits).
California Probate Code §2357 provides in pertinent part that with respect to medical treatment issues, the petition shall state or set forth by medical affidavit all of the following so far as known to the petitioner at the time the petition is filed:
-The nature of the medical condition which requires treatment;
-The recommended course of medical treatment which is considered to be medically appropriate;
-The threat to the health of the conservatee if authorization to the consent of the recommended course of treatment is delayed or denied by the court;
-The predictable or probable outcome of the recommended course of treatment;
-The medically available alternatives, if any, to the course of treatment recommended; and
-Efforts made to obtain an informed consent from the conservatee.
Pursuant to statute, the conservatee is entitled to be represented by an attorney, and is entitled to have the issues set for an evidentiary hearing unless the attorney for the conservatee decides to stipulate that there remains no issue or fact to be determined, and that the matter may be submitted to the court upon proper and sufficient medical declarations. In other words, in cases where the issues are not clear, it may very well be appropriate to have the evidence, including the testimony of the physician or psychologist presented in court, with the opportunity for cross-examination.
We are seeing more cases where courts are rightfully requiring added careful analysis of the issues and the evidence, and conservators are expected to provide clear and convincing evidence, meeting statutory requirements, that dementia medications and secured parameter facilities are necessary and in the best interests of the conservatee. See also my recent blog posts about In re Gregory holding that a mother of an adult conservatee lacked standing to appeal that the decisions of the trial court violated her adult son’s rights because violation of her son’s rights did not constitute injuries to the mother herself – be careful in conservatorship cases to consider possible appellate issues and standing questions at both the trial court and appellate stages.
Dave Tate, Esq. (San Francisco)
Contact me if you need assistance with a court case or proceeding, a dispute, or a contentious administration.
2013 Alzheimer’s Disease Facts & Figures – Link – Alzheimer’s Association Report
The following is a link to the Alzheimer’s Association report, 2013 Alzheimer’s Disease Facts & Figures, Click Here For Report.
Dave Tate, Esq. (San Francisco)
Contact me if you need assistance with a court case or proceeding, a dispute, or a contentious administration.
Additional Discussion – In re Conservatorship of Gregory D. Should Be Reconsidered
On March 11, I initially reported the decision in In re Conservatorship of Gregory, in which the Court held that the mother of an adult son conservatee lacked standing (because she wasn’t aggrieved) to appeal a decision of the probate court in light of the issues on appeal which related only to the alleged violations of Gregory’s rights and not any particular injury to the mother herself. Following below is my further evaluation of the Gregory decision, in video format, and my opinion that the mother should have standing to appeal and that the Gregory decision should be reconsidered by the Court.
Thank you, Dave Tate, Esq. (San Francisco). Contact me if you need assistance with a court case or proceeding, a dispute, or a contentious administration.
A blog discussing trust, estate, probate, conservatorship, elder and dependent abuse, mental and physical health, care and capacity, and litigation, disputes, and mediation. See list below. http://Californiaestatetrust.com 