New FinCEN and Consumer Financial Protection Bureau Memo re Efforts to Combat Elder Financial Exploitation

At the bottom of this post you will find a link to a new Financial Crimes Enforcement Network (FinCEN) and Consumer Financial Protection Bureau memorandum about efforts to combat elder financial exploitation, which the memo identifies as the illegal or improper use of an older person’s funds, property or assets. And I have also included additional links below. As the memo notes, “Financial institutions can play a key role in detecting, responding to, and preventing EFE [Elder Financial Exploitation]. The memo also encourages collaboration between financial institutions, law enforcement and APS [Adult Protective Services]. This is a topic that I have handled in many actual cases, and about which I have given presentations and written blog posts. I have also seen a recent article discussing the rather large percentage of incidents in which physical elder abuse is not reported by medical facilities such as hospitals.

It has long been my view that the collaboration effort must also include private attorneys, for the simple reason that law enforcement and APS simply do not have the resources to handle the numbers of cases, or how long it takes to prosecute them to obtain recovery. Reporting is one thing, prosecuting the cases is an entirely different matter. Law enforcement and APS are not staffed to obtain recovery through the court system. The district attorney and attorney general are staffed to prosecute these cases through the court system, but again, the resources available are inadequate. These cases can involve complicated legal and evidentiary issues including mental capacity, undue influence, dependence, consent, fiduciary and other duties, burden of proof, etc.

In addition to the below link to the FinCEN/Financial Protection Bureau memorandum, I have also provided below a few links to some of my prior posts on this topic and elder abuse.

Best regards, David Tate, Esq., Royse Law Firm, Menlo Park office, http://rroyselaw.com/

http://files.consumerfinance.gov/f/documents/201708_cfpb-treasury-fincen_memo_elder-financial-exploitation.pdf

Elder Abusers Use The Legal System Also – Video http://wp.me/p1wbl8-jp

Elder and Dependent Adult Resources are Ridiculously Inadequate and Archaic http://wp.me/p1wbl8-cV

Elder Abuse and Protection Slides 2015 http://wp.me/p1wbl8-dm

Counties Need to Refer Elder Abuse Cases to Private Attorneys – Video http://wp.me/p1wbl8-ke

Everyday is elder abuse prevent day – cartoon video http://wp.me/p1wbl8-lE

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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)

New California Case – Gregge v. Hugill – Probate Code Section 17200 Petition Improperly Dismissed, And Policy Favors Trials And Determinations On The Issues And The Claims Alleged

On July 14, 2016, the California Court of Appeal for the Sixth District issued its decision in Gregge v. Hugill, Case No. HO40663. Viewed most simply, the Court determined that Appellant had standing to bring his petition under California Probate Code section 17200 in which he alleged lack of testamentary capacity, undue influence and elder abuse, and that Probate Code section 17202 and another beneficiary’s disclaimer did not operate to defeat or eliminate Appellant’s pecuniary interest and standing to bring his petition and for trial thereon.

But viewed in its entirety, the decision in Gregge v. Hugill affirms policies that favor a party’s entitlement to a determination on the issues and the claims alleged, arguably disfavors claim forfeiture arguments, and affirms that estate planning document, i.e., will and trust, and inheritance contest determinations and findings should be based on the decedent’s intent.

The following are six snapshots from the opinion in Gregge v. Hugill which will provide you with some of the Court’s insight (the first snapshot is only of the case caption).

Gregge v. Hugill image 1 of 6

 

Gregge v. Hugill image 2 of 6

Gregge v. Hugill image 3 of 6

Gregge v. Hugill image 4 of 6

Gregge v. Hugill image 5 of 6

Gregge v. Hugill image 6 of 6

 

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.

 

Ombudsman Services San Mateo County – A Snapshot Of Great Accomplishments

The following are two snapshots of the accomplishments of Ombudsman Services of San Mateo County. As you might be aware, Ombudsman services are mandated by law to advocate on behalf of better and proper care of residents at care facilities, to work to improve the care provided by the facility, to investigate situations and improper care, and report improper care and abuse. The following are two snapshots of activities from Ombudsman Services of San Mateo County, which is an active advocate on behalf of care facility residents – and you can view their website at the following link CLICK HERE

2016-02-18_9-37-57

2016-02-18_9-38-43

Our Elder and Dependent Adult Abuse Prevention and Remedies Are Ridiculously Inadequate and Archaic – Insufficient Resources and Boots on the Ground, and No Collaboration

Let’s talk more about elder and dependent adult abuse and protection, and why we are failing in California. Prevention and remedies are ridiculously inadequate and archaic, particularly taking into account the numbers of cases of abuse.

I first started bringing elder and dependent adult abuse cases in 1993. My cases were primarily for physical, care, mental, undue influence, duress, fraud, financial, theft, real property, trust, and will abuse. I have to say that the more that things change they also stay the same. The same types of abuse still occur, and they always will. The cases were difficult then, and they still are. These cases take time and expertise. There is often difficulty obtaining evidence. And defendants really fight these cases, always arguing that nothing wrongful occurred, that the victim rightfully knew what they were doing and of their own free will, and in physical abuse cases that the injury naturally occurred due to the victim’s naturally poor condition. In other words, everything was known and on the up-and-up. Defendants in these cases count on the prospect that you will have difficulty proving the case, and that you will go away eventually for lack of resources and time. Nothing has really changed.

We should ask, what resources are available to fight elder and dependent adult abuse?  The first line of prevention and defense includes good people who are family, friends, professionals such as doctors, bankers, caregivers, accountants and financial advisors, and sometimes other third parties. Will these people recognize the possible or actual abuse, and then also take action? Do they even know what action might be possible and who to contact?  If so, most likely only to a certain limited extent.

The next line of defense probably includes law enforcement, adult protective services and the district attorney. Most likely these people only get involved because someone in the first line of defense has contacted them. I have previously discussed the inadequacy of the second line of defense – they simply do not have the time and people power and resources to handle the numbers of possible or actual abuse cases, or to stick with the cases long-term. They can pick some cases to attempt to handle.

I would say that the third line of defense includes the private attorneys. There are resources in this category that are under utilized, at least in part because people in the first category don’t know who to contact, people in the second category don’t know who to contact and aren’t authorized to contact or won’t contact people in the third line of defense, and it is also true that private attorneys also have resources and abilities that are not unlimited and each case must also be evaluated.

Improvements can be made to the situations described above. In particular, problems and issues relating to people in the first category, the first line of prevention and defense, can be improved by getting the information out so that they can better spot abuse or possible abuse and take action. Problems and issues relating to people in the second category, the second line of defense, can be improved with additional funding or monetary resources, and by having people in the second line of defense refer people or cases to the private attorneys in the third category or third line of defense.  And efforts can be made to further educate attorneys in the third line of defense about the procedures, causes of action, and remedies that are available to them. Similarly, additional effort needs to be made to educate the courts, judges, and other legal system professionals about types of abuse, evidence that abuse has occurred, and the procedures, causes of action and remedies available.

And let me discuss one additional program, the ombudsman program, which every county in California is supposed to have, and the members/volunteers of which go into the nursing homes (SNF) and residential care facilities (RCFE) and similar entities to check on the care provided and advocate on behalf of the residents. I’m a board member of Ombudsman Services of San Mateo County, California. This is a tremendous nonprofit organization. They do great work. Ombudsman Services organizations do vary from county to county – they are run different, they have different funding, they have different numbers of volunteers, they have different training, they have different decision-making processes, and some are county-run whereas other’s are separate nonprofit entities, etc. Here is a link to Ombudsman Services of San Mateo County, http://ossmc.org/. I ask that you also donate to them if you wish.

That’s all for now. These cases really haven’t changed for over 20 years, in my experience. You might hear a commercial about reporting elder abuse, and those commercials are important, but it is really about having numbers of boots on the ground that make a difference. If the boots and referrals aren’t there, nothing will be done or remedied, and it goes on and on.

Dave Tate, Esq., San Francisco and throughout California, http://californiaestatetrust.com