Is This Undue Influence – It Could Be – You Decide

I was reading an article recently. It in part described a situation where one of Dad’s adult children said that Dad could not see his granddaughter anymore because the son was upset with Dad’s estate plan, but that Dad could see his granddaughter if he made some changes to the plan.

Undue influence is described in several different ways, including by statute and by case law. When are statements or discussions merely opinions, or influence, or persuasion, or even argument or disagreement, but not “undue” influence in nature? It’s not always easy to tell; but on other occasions it is obvious. You judge the above scenario using the below definition of undue influence. It sounds like undue influence, and quite possibly also elder abuse, if it meets the below criteria.

The following information is copied from my elder abuse presentation slides.

California Welfare & Institutions Code §15610.70 provides the following statutory definition of undue influence:

(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.

 

I’m Getting Back To Using Video – A Video About My Practice Areas

Greetings all. I am getting back to using video more often, and another new initiative which I will be telling you about shortly. Moving forward I am trying to do one video a week, and then the other posts will be in writing.  I have done a quick video about my practice areas. Enjoy and tell others. Thanks. Dave Tate, Esq., San Francisco / California, (415) 917-4030.

Is Your Trust, Estate, Power Of Attorney, Conservatorship, Or Care Situation Contentious?

Are there disagreements and disputes in your trust, estate, power of attorney, conservatorship or care situation? That’s not unusual. In fact, based on my experience, I would have to say that it’s pretty common. But it can also be a game changer.

Generally a fiduciary such as a trustee, executor or conservator, and sometimes an attorney in fact, should always hire an attorney when challenging or difficult issues or significant assets are involved. The question is whether one of the parties who is involved in the situation has, or needs to, or may, or likely will hire an attorney with a view toward litigation? That’s a game changer when that possibility might occur or actually does.

Trust, estate, conservatorship, power of attorney, care and elder abuse situations and litigation are complicated legal practice areas that typically can involve a lot of emotional feelings and mistrust, and that require the attorney to know multiple areas of law and court procedure.

If you are a fiduciary such as a trustee, executor, conservator or attorney in fact you need to hire an attorney who can advise you properly about your responsibilities and on the administration of the trust, estate and assets, or on the care and daily living needs of the conservatee or person in need, with a view toward helping you to satisfy your responsibilities effectively and correctly, practicing prudent risk management and documentation, avoiding liability and litigation, and prevailing in court if the situation ends up in court.

If you are a beneficiary you need to hire an attorney who can steer you correctly to help you protect your rights and obtain the assets that were intended for you, and not waste your resources and the resources of the trust or of the estate, or possibly cause you to be surcharged for the attorneys’ fees of the other side, with a view toward prevailing in court if the situation ends up in court. If you are a beneficiary you also don’t want to unknowingly contest a trust or will or possibly disinherit yourself.

And if you are a trustor who is no longer trustee, or a principal under a power of attorney, or a conservatee, you need to feel and know that your physical, mental and financial needs and rights are correctly and timely cared for and protected, and you might also need to be represented by legal counsel. In fact, if the situation ends up in court, in some situations, such as in a conservatorship, you have an absolute right to be represented by an attorney, and in other situations the court should and will on its own appoint legal counsel to represent and advocate for you.

For additional information, the following is a link to my summary paper discussing trustee and beneficiary responsibilities and rights, and you can also find helpful information about other situations on other posts on this blog, CLICK HERE

Contact me if you would like to discuss your situation. You can contact me by sending me an email at davetateesq@gmail.com. Before we discuss your situation I will need to know the names of the people and attorneys involved to check for any possible conflicts.

Wishing you the very best,

Dave Tate, Esq., San Francisco and throughout California

DTatePicture_Square

Upcoming Presentations – (1) Probate Court Litigation; (2) Elder Abuse and Protection

Upcoming presentations:

(1) Probate Court litigation, for a group of estate planning attorneys, caregivers and fiduciaries, March 26, 2015.

(2) Elder and Dependent Adult Abuse and Protection, for the Riverside estate planning bar, April 16, 2015.

Dave Tate, Esq. (San Francisco and California)

INDICATORS OF ELDER AND DEPENDENT ADULT FINANCIAL ABUSE

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.

* * * * *

Dave Tate, Esq. (San Francisco / California)

TRUST, ESTATE, CONSERVATORSHIP AND OTHER ORDERS CAN BE APPEALED

Many types of trust, estate, conservatorship, power of attorney and advance health care directive orders and non-orders can be appealed.

Appeal should be evaluated and taken in appropriate cases, i.e., when appeal is warranted in light of the costs of appeal, the likelihood of success, and the issues or amounts at issue.

And in circumstances where appeal cannot be taken, it might still be possible to obtain appellate court review by writ.

For example, and to help you out, the following are some but not all of the situations where trust orders or non-orders can be appealed, and these also apply to many similar estate related orders:

● Authorizing or approving the sale, lease, encumbrance, purchase, or exchange of property.

● Settling an account of a fiduciary.

● Authorizing or approving the acts of a fiduciary.

● Directing or allowing payment of a debt, claim, or cost.

● Authorizing the payment of compensation or expenses of an attorney.

● Authorizing the payment of the compensation or expenses of a fiduciary.

● Surcharging, removing, or discharging a fiduciary.

● Allowing or denying a petition of the fiduciary to resign.

● Discharging a surety on the bond of a fiduciary.

● An adjudication under Section 850 relating to ownership of property or contract obligations.

● Many orders under Section 17200 relating to the existence and administration of the trust.

● An adjudication of the apportionment of generation skipping transfer tax under Section 20200.

Anyway, and more types of orders can be appealed, but this list will give you an idea of the many types of orders and non-orders that might be appealable in trust and estate proceedings.

Dave Tate, Esq. (San Francisco / California)