Tag Archives: mental capacity

NAIC Seniors Consumer Insurance Fraud Alert – An Area Of Board Oversight?

Posted on by

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.

Click to access legal_bulletin_seniors_beware.pdf

. 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?

Dave Tate, Esq. (San Francisco / California), http://californiaestatetrust.com, http://directorofficernews.com

Study Finds Antipsychotic Drugs For Dementia Patients Increase Risk of Death

Posted on by

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

Alzheimer’s Cause Might Be Tau Protein – But At Law The Issues Are Mental Capacity, Natural Wishes, Fraud and Undue Influence

Posted on by

The following is an article about a new Mayo Clinic study, that the primary cause of Alzheimer’s might not be what has generally been thought:

“Amyloid – a sticky, toxic protein found in the brains of Alzheimer’s patients — has been the focus of research and diagnosis for decades. But a new Mayo Clinic study published in the journal Brain shows that another toxic protein, called tau, may be a bigger culprit in cognitive decline and Alzheimer’s over the lifetime of the disease.”

Click on the following link for the article: Click Here.

Many of my cases involve cognitive impairment or decline, whether it be diagnosed or called Alzheimer’s, or dementia, or traumatic brain injury, or lack of mental capacity, or cognitive impairment, or otherwise.

In conservatorships the issue isn’t the diagnosis, but whether the prospective conservatee has the ability to take care of and understand financial and/or daily living tasks and to resist fraud and undue influence?

And in will and trust contests or disputes, the issue is whether the decedent understood his or her assets and the effect of the provisions in the will or trust, and whether the will or trust provisions are what the decedent would have naturally wanted if the decedent had the mental capacity to understand his or her actions and the will or trust provisions, and to resist fraud and undue influence?  One additional comment: there is case law that you might not need to wait until after someone dies to contest or seek to invalidate a will or trust – this is an area of law that is developing and that is a positive development.

Dave Tate (San Francisco and California), http://californiaestatetrust.com

Massachusetts legislation to help with in-home care services and costs

Posted on by

The following is a link to a short discussion about possible legislation in Massachusetts to assist with in-home care services and costs, CLICK HERE.

Dave Tate, Esq. (San Francisco / California)

Undue Influence – From Martin Blinder, M.D. Post

Posted on by

The following is a post by Martin Blinder, M.D., about forensic psychiatry, undue influence and some possible indicators. It’s a good read for thought. Click here for the link.

Enjoy. Dave Tate, Esq. (San Francisco/California), http://californiaestatetrust.com

Donations to Hospital and Allegations of Coercion and Contested Will

Posted on by

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.