Another disturbing nursing home story, in addition the Florida IRMA SNF deaths – need for ERM, leadership, transparency, reporting, and follow-up

I have also posted this discussion at http://lawriskgov.com

Below, at the bottom of this blog, I have pasted a video at a nursing home that I came across on Yahoo. First some disclaimers – by now we should all be aware that watching snippets or portions of a video does not tell the whole story, knowing the whole story could present a different situation, we don’t know all that was said or that occurred, and, of course, I have no personal knowledge of these events, but am simply passing this along.

That having been said, the video and information presented are disturbing.

At her deposition the supervising nurse testified that what occurred is different than what the video shows, and acknowledges or admits this, and she admits that the nurses or nursing assistants on scene acted wrongfully and should have been fired if the truth had been known.

If not for the video the truth would not have come to light.

An issue arose whether it was legal to install a secret video recording device in the resident’s room. It is my understanding that a nursing home resident is a resident, not a patient, and that the nursing home, and their particular room is their home.

The lawyer mentions that he cannot say anything about the settlement agreement with the nursing home. In California, except in limited circumstances, Code of Civil Procedure §2017.310 makes a confidential settlement agreement unlawful if the factual foundation presents a case of elder or dependent adult abuse.

California also has a criminal elder abuse statute at Penal Code §368. I’m not saying that the acts in the video were criminal – based on what is being shown, in a court of law more likely the acts would be considered medical malpractice in nature, but could still be civil elder abuse.

The nursing home would raise a whole host of defenses to liability, including, for example, possibly, that the plaintiffs or prosecution cannot show with evidence that the actions of the nursing home actually caused the resident’s death. But there also could be issues about burden of proof, and it is possible that the burden of showing no wrongful conduct could be shifted to the defendant nursing home.

We could go on and on with this. There is a lot more that I would like to know, including, for example, about the policies and procedures of the nursing home at the time of the incident, and about the investigation that the nursing home did at the time of the incident and whether that investigation, if any was done, was sufficient and performed appropriately and in good faith?

I would also like to know about the “new management” of the nursing home, and about current policies and procedures, and whether the events of this occurrence were presented to the public or kept secret by the state nursing home regulatory authorities.

These stories and what occurs later in time get buried by the now constant 24 hour news and social media cycle – do you remember the hurricane IRMA story about the 8 nursing home residents who died because the air conditioning went out, but then weren’t transferred by the nursing home to a safe facility (such as, for example, possibly the nearby hospital) – well . . . what has happened since that time in the investigation, and so that something like that will not occur again?

That’s all for now. I’m David Tate. I’m a California litigation attorney. I also handle governance and risk management. You need to consult with an attorney or appropriate professional about your situation. This blog post and/or video or audio is not an advertisement or solicitation for services inside or outside of California. Thanks for listening or reading.

Here is the link to the nursing home video,

https://www.yahoo.com/lifestyle/disturbing-video-shows-dying-wwii-vet-neglected-nursing-home-193149764.html

David Tate, Esq., Royse Law Firm, Menlo Park, California office, with offices in northern and southern California. http://rroyselaw.com

See also my blogs at http://lawriskgov.com and at http://auditcommitteeupdate.com

Royse Law Firm – Practice Area Overview – San Francisco Bay Area and Los Angeles Basin

  • Corporate and Securities, Financing and Formation
  • Corporate Governance, D&O, Boards and Committees, Audit Committees, Etc.
  • Intellectual Property – Patents, Trademarks, Copyrights, Trade Secrets
  • International
  • Immigration
  • Mergers & Acquisitions
  • Labor and Employment
  • Litigation (I broke out the litigation because this is my primary area of practice)
  •             Business
  •             Intellectual Property – Patents, Trademarks, Copyrights, Trade Secrets
  •             Trade Secrets, NDA, Accounting Issues, Fraud, Lost Income, Royalties, Etc.
  •             Privacy, Internet, Hacking, Speech, Etc.
  •             Labor and Employment
  •             Mergers & Acquisitions
  •             Real Estate
  •             Owner, Founder, Investor, Board & Committee, Shareholder, D&O, Etc.
  •             Insurance Coverage and Bad Faith
  •             Lender/Debtor
  •             Investigations
  •             Trust, Estate, Conservatorship, Elder Abuse, and Contentious Administrations
  • Real Estate
  • Tax (US and International) and Tax Litigation
  • Technology Companies and Transactions Including AgTech, HealthTech, Etc.
  • Wealth and Estate Planning, Trust and Estate Administration, and Disputes and Litigation

Audit Committee 5 Lines of Defense 10222017 David W. Tate, Esq. jpg

 

 

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A party filing a petition in probate to enforce a no contest clause triggers the anti-SLAPP statute

David Tate, Esq., Royse Law Firm, California (Silicon Valley/Menlo Park Office, with additional offices in San Francisco, Los Angeles and Orange County), http://rroyselaw.com/

The following is a brief discussion about a new California case in which the court held that a party filing a petition in probate to enforce a no contest clause triggers the anti-SLAPP statute. If you have never been involved in the anti-SLAPP statute, it is a big deal. The case is Urick v. Urick, California Court of Appeal, Second Appellate District, Case No. B278257 (October 5, 2017).

Summary. Filing a petition for instructions in probate, claiming that a trustee or beneficiary had triggered a no contest clause by filing her prior petition to reform or modify a trust, is a claim that triggers prong one of the California anti-SLAPP statute Cal. Code Civ. Proc. §425.16, which means that the party seeking to claim and enforce that the no contest clause was triggered must be prepared to satisfy prong two of the anti-SLAPP statute which requires him to sufficiently establish a reasonable possibility of prevailing on the claim that the no contest clause was triggered and violated.

Takeaway. If you bring a claim to enforce a no contest clause based on an opposing party’s prior petition filed in probate, you must be prepared at the time of your filing to establish to the court, based on evidence and declarations, that you have a reasonable possibility of prevailing on your claim that the other party had triggered and violated the no contest clause.

Urick is also interesting for the court’s discussion whether the previously filed petition to reform or modify the trust triggered the no contest clause, including the discussion whether that previously filed petition was filed by the petitioner as a beneficiary of the trust or as the trustee of the trust and whether there was really a distinction that mattered under the facts of the case.

Other thoughts about the anti-SLAPP statute. I have been involved in Cal. Code Civ. Proc. §425.16 motions. It is my opinion that it is a deeply flawed statute except possibly in really obvious and clear situations and in those cases the party who has those defenses has other remedies such as a demurrer, motion to strike, or motion for summary judgment or summary adjudication. The anti-SLAPP statute should be revoked or very significantly amended and limited. To add further injury, the filing of an anti-SLAPP motion automatically stays all discovery unless a motion to allow and compel discovery is brought and the court grants that motion – thus, strategically a party might bring an anti-SLAPP motion simply to see if they can prevail even if their arguments and chances of prevailing are not good – and the statute further provides that if a party prevails on an anti-SLAPP motion they are entitled to attorneys’ fees whereas if a party defeats an anti-SLAPP motion the statute does not provide that they are entitled to recover attorneys’ fees. The anti-SLAPP statute is ripe for abuse or use in situations that might be counter to other public or judicial policies, which the court in Urick appeared to recognize, but as the court noted, nevertheless the statute is still on the books and is applicable unless and until the Legislature does something about the statute.

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What documents does a trustee provide relating to the Probate Code §§16060.5, 16061.7 and 16061.8 notice requirements?

The following discussion is about the requirements of California Probate Code §§16060.5, 16061.7 and 16061.8, and what documents must be provided by the trustee if the trustee voluntarily provides copies of documents, such as with the section 16061.7/16071.8 notice, or if a beneficiary or heir requests copies of documents. Upon request, or voluntarily if the trustee so elects, the trustee is required to provide copies of the terms of the trust. Below I have copied and pasted parts of a legal discussion on this topic, without the specific facts of the situation – so the below discussion is rather dry, but you can envision that documents and what they say can and will vary from case to case. Immediately below is an overall summary based on reading the statutes, case law, and legislative committee history. Further below I have summarized the statutes, a few cases on legislative intent, and some of the legislative committee comments.  You can ignore the underline and bold in the below materials – those were added in the original materials, but they are not necessarily relevant for this discussion. Fun reading. This is or should be an important topic of discussion for trustees, beneficiaries, estate planning attorneys, estate/trust administration attorneys, and Judges. David Tate, Royse Law Firm, Menlo Park Office but with offices in northern and southern California.

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California Probate Code §§16060.5, 16061.7 and 16061.8 provide that a trustee shall provide beneficiaries and heirs with a notice, and with the “terms of the trust” either voluntarily or upon request, and that if the trustee timely and completely does so, beneficiaries and heirs are then required to make a decision whether to contest the trust within the allowable time period. The provisions and requirements of §§16060.5, 16061.7 and 16061.8 are important, and any waiver of the notice and information providing requirement is against public policy, particularly in light of the 120-day limitation deadline for filing a contest action. As no two trusts and trust situations are identical, the application of §§16060.5, 16061.7 and 16061.8, including whether the trustee has satisfied those requirements must be a factual determination that must be made on a case-by-case basis, based on the facts of the case and the requirements of Probate Code §§16060.5, 16061.7 and 16061.8 as provided therein and the legislative intent.

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In relevant part, California Probate Code §16061.7 requires that:

(a) A trustee shall serve a notification by the trustee as described in this section in the following events:

(1) When a revocable trust or any portion thereof becomes irrevocable because of the death of one or more of the settlors of the trust, or because, by the express terms of the trust, the trust becomes irrevocable within one year of the death of a settlor because of a contingency related to the death of one or more of the settlors of the trust.

(2) Whenever there is a change of trustee of an irrevocable trust.

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(b) The notification by the trustee required by subdivision (a) shall be served on each of the following:

(1) Each beneficiary of the irrevocable trust or irrevocable portion of the trust, subject to the limitations of Section 15804.

(2) Each heir of the deceased settlor, if the event that requires notification is the death of a settlor or irrevocability within one year of the death of the settlor of the trust by the express terms of the trust because of a contingency related to the death of a settlor.

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(e) The notification by trustee shall be served by mail to the last known address, pursuant to Section 1215, or by personal delivery.

(f) The notification by trustee shall be served not later than 60 days following the occurrence of the event requiring service of the notification by trustee, or 60 days after the trustee became aware of the existence of a person entitled to receive notification by trustee, if that person was not known to the trustee on the occurrence of the event requiring service of the notification. If there is a vacancy in the office of the trustee on the date of the occurrence of the event requiring service of the notification by trustee, or if that event causes a vacancy, then the 60-day period for service of the notification by trustee commences on the date the new trustee commences to serve as trustee.

(g) The notification by trustee shall contain the following information:

(1) The identity of the settlor or settlors of the trust and the date of execution of the trust instrument.

(2) The name, mailing address and telephone number of each trustee of the trust.

(3) The address of the physical location where the principal place of administration of the trust is located, pursuant to Section 17002.

(4) Any additional information that may be expressly required by the terms of the trust instrument.

(5) A notification that the recipient is entitled, upon reasonable request to the trustee, to receive from the trustee a true and complete copy of the terms of the trust.

(h) If the notification by the trustee is served because a revocable trust or any portion of it has become irrevocable because of the death of one or more settlors of the trust, or because, by the express terms of the trust, the trust becomes irrevocable within one year of the death of a settlor because of a contingency related to the death of one or more of the settlors of the trust, the notification by the trustee shall also include a warning, set out in a separate paragraph in not less than 10-point boldface type, or a reasonable equivalent thereof, that states as follows:

You may not bring an action to contest the trust more than 120 days from the date this notification by the trustee is served upon you or 60 days from the date on which a copy of the terms of the trust is mailed or personally delivered to you during that 120-day period, whichever is later.”

(i) Any waiver by a settlor of the requirement of serving the notification by trustee required by this section is against public policy and shall be void. (Underline and bold added)

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California Probate Code §16061.8 provides that:

“No person upon whom the notification by the trustee is served pursuant to this chapter, whether the notice is served on him or her within or after the time period set forth in subdivision (f) of Section 16061.7, may bring an action to contest the trust more than 120 days from the date the notification by the trustee is served upon him or her, or 60 days from the day on which a copy of the terms of the trust is mailed or personally delivered to him or her during that 120-day period, whichever is later.” (Underline and bold added)

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As used in §§16061.7 and 16061.8, and throughout Article 3 which includes Probate Code §§16060 through 16069, pursuant to Probate Code §16060.5 the term “terms of the trust” means:

“ . . . the written trust instrument of an irrevocable trust or those provisions of a written trust instrument in effect at the settlor’s death that describe or affect that portion of a trust that has become irrevocable at the death of the settlor. In addition, “terms of the trust” includes, but is not limited to, signatures, amendments, disclaimers, and any directions or instructions to the trustee that affect the disposition of the trust. “Terms of the trust” does not include documents which were intended to affect disposition only while the trust was revocable. If a trust has been completely restated, “terms of the trust” does not include trust instruments or amendments which are superseded by the last restatement before the settlor’s death, but it does include amendments executed after the restatement. “Terms of the trust” also includes any document irrevocably exercising a power of appointment over the trust or over any portion of the trust which has become irrevocable.” (Underline and bold added)

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It is well-known that some trustees and trust administration attorneys play games with the statutory notice requirement – some trustees intentionally or by ignorance fail to provide required disclosure or they try to keep the true terms of the trust secret from the recipient beneficiaries and heirs, whereas other trustees and their administration attorneys endeavor to provide full notice and disclosure. One might ask, why would a trustee not provide full disclosure? The answers are simple, for example, the trustee has an ulterior primary motive, or the trustee favors certain beneficiaries or heirs over other beneficiaries or heirs, or the trustee believes that the beneficiary or heir will be less likely to contest the trust if he or she does not have full information, or the trustee is simply mistaken.

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Statutes are to be interpreted in accord with the intent of the Legislature. The fundamental task of statutory construction is to determine and follow the legislative intent so as to effectuate the purpose of the law, including both the policy expressed in its terms and the object implicit in its history should be recognized. Cal. Code Civ. Proc. §1859; People v. Cruz (1996) 13 Cal. 4th 764, 774-775; Walnut Creek Manor v. Fair Employment & Housing Commission (1991) 54 Cal. 3d 245, 268; In re Schaefer (1981) 116 Cal. App. 3d 588, 597. Determining legislative intent is to be the fundamental, cardinal rule of statutory construction. Tyrone v. Kelley (1973) 9 Cal. 3d 1, 10-11.The object that a statute seeks to achieve and the evil that it seeks to prevent are of prime consideration in its interpretation. Sierra Club v. City of Hayward (1981) 28 Cal. 3d 840, 860-861; Dubins v. Regents of University of California (1994) 25 Cal. App. 4th 77, 83. When the Legislature enacts a remedial statute, courts must construe it liberally to promote its purposes, to protect the persons within its purview, and to suppress the mischief within its spirit and policy. Tetra Pak, Inc. v. State Board of Equalization (1991) 234 Cal. App. 3d 1751, 1756. Courts consider legislative history as an extrinsic aid to help elucidate legislative intent. City of San Jose v. Superior Court (1993) 5 Cal. 4th 47, 54; Jevne v. Superior Court (2005) 35 Cal. 4th 935, 948; District of Columbia v. Heller (2008) 554 U.S. 570, 605. Courts also look to legislative history to confirm the Court’s reading of the statute- common sense suggests that inquiry into statutory construction benefits from reviewing additional information rather than ignoring it. Samantar v. Yousuf (2010) 560 U.S. 305, 315-323; Wisconsin Pub. Intervenor v. Mortier (1991) 501 U.S. 597, 611-612 n.4.

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In this case a Senate Judiciary Committee Report with the date September 5, 1997, states (and other Committee Reports similarly state), for example:

“SECTION 23 — Trustee Notification — Probate Code Sections 16061.5 and 16061.7

Existing law requires a trustee, upon reasonable request by a beneficiary, to provide the beneficiary with certain information about the trust and its administration relevant to the beneficiary’s interest in the trust.

This bill would require trustees to notify beneficiaries of a trust by mail or personal delivery when there is a change of trustees and notify beneficiaries and heirs of whom they have actual knowledge when a revocable trust become irrevocable.

The sponsor asserts that the experience of practitioners is that failure to notify beneficiaries of the existence or terms of trusts frequently leads to or exacerbates conflict between trustees and beneficiaries. It is also increasingly common for persons to use revocable as will substitutes. In these cases, the sponsor believes that prompt notification of the heirs of a deceased settlor will reduce the incidence of trustees concealing trust assets and even the existence of trusts.”

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And further, an apparently early in the legislative process or initial Assembly Committee on Judiciary Report also states, for example:

“SEC. 32 & 33 – – Trustee Notification – – Probate Code §§16061.5 and 16061.7

Existing law requires a trustee, upon reasonable request by a beneficiary, to provide the beneficiary with certain information about the trust and its administration relevant to the beneficiary’s interest in the trust. In spite of this requirement, the experience of practitioners is that failure to notify beneficiaries of the existence or terms of trusts frequently leads to or exacerbates conflict between trustees and beneficiaries.

This bill would clarify the statutory mandate on trustees by requiring them to notify beneficiaries of a trust when there is a change of trustees and notify beneficiaries and heirs when a revocable trust becomes irrevocable.”

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The Cal. Probate Code §82 definition of the term “trust” includes “additions thereto”:

California Probate Code §82 states as follows:

(a) “Trust” includes the following:

(1) An express trust, private or charitable, with additions thereto, wherever and however created.

See also Townsend v. Townsend (2009) 171 Cal. App. 4th 389, 405, in which the court held that the Probate Code §82 definition of the term “additionsincludes “additions of property to the Trust.”

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Further, an “instrument” means a will, trust, deed, or other writing that designates a beneficiary or makes a donative transfer. California Probate Code §45.

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Probate Code provisions pertaining to powers of appointment can be found at Probate Code §§600-695, in particular §640 (manifestation of intent), §650 (general power of appointment) and §651 (special power of appointment).

 

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New California case expands shifting trust/trustee attorneys’ fees and costs to a beneficiary’s share of the trust

New California trust dispute decision expands shifting trust/trustee attorneys’ fees and costs to a beneficiary’s share of the trust – Pizarro v. Reynoso, California Court of Appeal, Third Appellate District, Case No. C077594, (March 28, 2017)

Summary. The decision in Pizarro v. Reynoso expands the shifting of trust/trustee attorneys’ fees and costs to a beneficiary’s trust share, and in relevant part reminds us that all trust and estate litigation cases vary and are determined in significant part by the facts and circumstances of that case, the relevant case law, and the discretion of the trial court judge. In Pizarro v. Reynoso, on appeal the Court of Appeal held as follows:

  1. The terms and intent of the trustor prevail in substance – refusing to elevate form over substance the court upheld a sale of the trust real property to a specific beneficiary which the trust authorized in the trustee’s discretion if the beneficiary could afford to purchase the house. The trustee in fact in part assisted the beneficiary in that purchase so that the beneficiary could purchase the property – never the less the court upheld the sale based on substance over form and the intent and terms of the trust.
  2. Under the court’s equitable powers, the attorneys’ fees and costs incurred by the trust/trustee are chargeable against the trust share of a beneficiary who brings an unfounded proceeding against the trust, but those attorneys’ fees and costs cannot be awarded against the beneficiaries other personal non-trust assets, citing Rudnick v. Rudnick (2009) 179 Cal. App. 4th 1328, 1332-1333, 1335, and Estate of Ivey (1994) 22 Cal. App. 4th 873, 877-878, 882-886.
  3. Important – in an expansion of #2 above and charging fees and costs to a beneficiary’s trust share, under those same equitable powers, the court also can award the trust/trustee attorneys’ fees and costs against the trust share of a beneficiary who has not filed or brought a proceed, but who takes an unfounded position and litigates in bad faith causing the trust to incur fees and costs (the beneficiary changed her position to being against the trustee, and in the trial court’s opinion then offered false testimony by declaration, deposition and at trial – offering false evidence in litigation is a bad faith litigation tactic).
  4. The court’s decision also cites or makes reference to California Probate Code §17211(a) and §15642(d), which state as follows (and I have also provided below §17211(b):

17211(a)

(a) If a beneficiary contests the trustee’s account and the court determines that the contest was without reasonable cause and in bad faith, the court may award against the contestant the compensation and costs of the trustee and other expenses and costs of litigation, including attorney’s fees, incurred to defend the account. The amount awarded shall be a charge against any interest of the beneficiary in the trust. The contestant shall be personally liable for any amount that remains unsatisfied.

(b) If a beneficiary contests the trustee’s account and the court determines that the trustee’s opposition to the contest was without reasonable cause and in bad faith, the court may award the contestant the costs of the contestant and other expenses and costs of litigation, including attorney’s fees, incurred to contest the account. The amount awarded shall be a charge against the compensation or other interest of the trustee in the trust. The trustee shall be personally liable and on the bond, if any, for any amount that remains unsatisfied.

15642(d)

(d) If the court finds that the petition for removal of the trustee was filed in bad faith and that removal would be contrary to the settlor’s intent, the court may order that the person or persons seeking the removal of the trustee bear all or any part of the costs of the proceeding, including reasonable attorney’s fees.

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Updated (02172017) California Trustee And Beneficiary Responsibilities And Rights – Please Use It, And Tell Others

Below I have provided a link to my updated (02172017) paper California Trustee and Beneficiary Responsibilities and Rights. Please use it, and pass it along and tell other people who would be interested.

Best to you, David Tate, Esq., Royse Law Firm, Northern and Southern California, 149 Commonwealth Drive, Ste. 1001, Menlo Park, CA 94025, (650) 813-9700, Extension 233, http://www.rroyselaw.com. My practice includes civil and probate court litigation (business, real estate, trusts and estates, employment, IP, D&O, serious personal injury, elder abuse, etc., and representing fiduciaries and beneficiaries, and audit committees and D&O.

Here is the link to the updated California Trustee and Beneficiary Responsibilities and Rights (02172017) a-summary-of-california-trustee-and-beneficiary-responsibilities-and-rights-dave-tate-esq-02172017

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Completed (mostly) a will contest and trust real property percentage trial on Friday – read more

I have been away from the blog for a while, preparing for a very contentious and time-consuming trial.

This past week I was in trial on a will contest action, and also on related but separate real property ownership and trust beneficiary percentage ownership claims. The witnesses and experts included my client who was the named beneficiary, the contestant(s), documents in which the decedent expressed her wishes including a police report and APS records in addition to other documents, forensic document examiners, forensic psychiatrists, and third party witnesses including a very spry 102 year old woman who was a friend of the decedent (the decedent executed the will at age 103, and passed away approximately 9 months later at age 104). Issues also involve the validity of a power of attorney that the decedent executed in June 2015 (she died one month later in July 2015), mental capacity, undue influence, elder abuse, trust and power of attorney accountings, costs and attorneys’ fees, and other issues.

As you may be aware, issues of mental capacity and undue influence are not the same for wills, powers of attorney, and trusts, variously including California Probate Code §§810, etc., and 6100.5, etc., and California Welfare and Institutions Code §15610.70, and various other statutes and case law.

The will contest was denied, and my client will receive what the decedent wished and intended.

So . . . I will be back on this blog and other networking, and also on my other blog http://auditcommitteeupdate.com.

Best to you, and thank you for following my blogs and posts. Dave Tate, San Francisco Bay Area and California.

 

Everyday is elder abuse prevention day – video cartoon – please pass it along

Here’s a different presentation approach – please do pass it along to your contacts and people who would be interested. This is an important topic that needs more discussion. Thank you. Dave Tate, Esq. (San Francisco and California)