Tag Archives: undue influence

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

Posted on by

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

 

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

Posted on by

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

From Trusts & Estates – Safeguarding Trusts from Future Ex-Spouse – Also Good Marketing for Estate Planning Attorneys

Posted on by

Trusts & Estates article Safeguard Trusts from Future Ex-Spouse of Beneficiary

This is a very interesting article from Trusts & Estates that I almost overlooked. It isn’t the Massachusetts case discussion that interests me, it is that I never hear estate planning attorneys discussing these topics and using these topics to tell people additional reasons why they might need a trust and how trusts can be used, and to differentiate one estate planning attorney’s services from another. Click on the following link for the article, CLICK HERE

Dave Tate, Esq., civil (business, real estate, injury), trust, estate, conservatorship and elder abuse litigation and contentious administrations, representing fiduciaries, beneficiaries and family members, San Francisco and throughout California. See also my other blog for audit committees, http://auditcommitteeupdate.com

See Discussion Paper – A Summary of California Trustee and Beneficiary Responsibilities and Rights

Posted on by

Whether you are a trustee/fiduciary or a beneficiary, click on the following link for my summary paper discussing California trustee and beneficiary responsibilities and rights, A Summary of California Trustee and Beneficiary Responsibilities and Rights Dave Tate Esq 01052016

Dave Tate, Esq. San Francisco and throughout California – trust, estate, conservatorship and elder and dependent adult abuse litigation and contentious administrations; civil business, real estate and personal injury litigation; audit committees, D&O, risk, compliance and investigations. My other blog, http://auditcommitteeupdate.com

Probate Court Judges Need More Judiciary Education From The California Judicial Council

Posted on by

I can say this – absolutely. California judges need more, and more detailed, education about probate, wills, trusts, decedent’s intent, mental capacity, undue influence, fraud, conservatorships and elder and dependent adult abuse.

I’m not saying that all judges need more education – some are quite experienced in these areas – but over the past several years I have been running into situations where judges who primarily handle civil or criminal matters are also assigned probate related cases. And this can happen in any court for trial purposes because even in courts that have dedicated probate departments, the trial of a probate case that will take longer than a day will probably be assigned to the master calendar for trial and judicial assignment. I’m not faulting a judge for not having experience in these areas – I am faulting the system and the judiciary education system.

While, yes, it can be argued that it is then for the attorneys to educate that judge, if I’m a judge and one attorney is saying that the law and the required outcome are “X” and another attorney is saying that the law and the outcome are “Y,” as the judge I don’t know who to believe. And add to that the fact that probate, wills, trusts, intent, mental capacity, undue influence, fraud, conservatorships and elder and dependent adult cases and evidence are detailed and complicated, including the law in those areas, which is also regularly changing, and you have a recipe for erroneous decisions, and also opportunities for less than honest counsel to exceed the bounds of advocacy and improperly twist or spin the law and the evidence.

These are important cases. They are the probate court version of family law – important issues, very emotional, and people related and impacting.

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

 

 

Ombudsman Services – San Mateo County – Annual Report 2014-2015 – 4,497 Care Facility Visits – 1,624 Investigations – And More Good Work

Posted on by

Ombudsman Services SMC Visits Investigations FY 2014-2015

Below is a link to the San Mateo County, California, Ombudsman Services annual report for 2014-2015. The report shows amazingly substantial services for the year, including for example, 4,497 facility visits, and 1,624 investigations. As you might know, Ombudsman Services of San Mateo County, Inc. is committed to working with residents, families, facilities and stakeholders to create a community dedicated to protecting the rights of all residents living in long term care in San Mateo County. They challenge long-term care facilities to deliver the highest standards of individualized care for their residents, and advocate for the health, safety, and dignity of these residents and broader changes in the system.

The following is a link to the annual report – please take a look at this worthwhile organization that does good work on behalf of and protecting the rights of residents living in long term care facilities in San Mateo County, CLICK HERE

And please do pass this information and blog post to other people who would be interested in these very important services. Thank you.

Dave Tate, Esq., San Francisco and throughout California, civil, trust, estate, conservatorship and elder abuse litigation, and contentious administrations. My two blogs: http://californiaestatetrust.com and http://directorofficernews.com

Elder Abuse In Australia On The Rise – Government Makes A $100 Million Pledge

Posted on by

Click on the following link for an article out of Australia, elder abuse is domestic violence and is on the rise – the government makes a $100 million pledge: Click Here For The Article

AU Elder Abuse Article

The New California End of Life Option Act – Undue Influence Is Listed 5 Times

Posted on by

Click on the following link for a copy of the new California End of Life Option Act, End of Life Option Act. I’m just spotting elder and dependent adult abuse issues here – I’m not discussing political, religious, personal, ethical or other issues.

The Act proposes to include protections to ensure that a person who uses the Act is not being unduly influenced. Obviously undue influence, duress, fraud, etc. are concerns in any situation. By my count undue influence is listed 5 times in the Act, so it is an obvious concern. You can match that concern with similar efforts to influence an elder’s estate planning or gifting, and also with the new California revocable transfer on death deed which I discuss at this prior blog post http://wp.me/p1wbl8-cI.

Having an outside third person, as the Act provides, assert that the person using the Act hasn’t been unduly influenced is not necessarily trustworthy as the third person has not been personally present to observe and hear what influence, fraud or duress, if any, has been attempted, including simply negative statements about how awful or useless life has become.

I have also seen situations where it was thought that a person was ill or injured, and would die, only to find out later that the cause was improper medications or some other undiagnosed reason, and the person recovered with proper diagnosis and treatment.

As I said, I’m just spotting issues here. People need to be vigilant.

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

 

Elder Abuse Protection Collaboration – Private Attorneys Needed, Updated Elder Abuse Slides Coming

Posted on by

Just some quick thoughts for this Friday morning.

I am seeing more materials and promotions by organizations reporting and combating elder abuse. All of that is for the good and obviously is encouraged and a lot more is needed. The efforts primarily involve spotting elder abuse and reporting to law enforcement, adult protective services or some other governmental entity. I’m also seeing more proposals to have or to offer to have a written form allowing a client to authorize an organization to contact a specific person, such as a spouse or other family member, if the organization believes that the client is being subjected to elder abuse. The written authorization is a good step in the right direction. But let me also tell you, and this comes from years of experience, you must have collaboration with private attorneys to combat and remedy elder abuse. This isn’t a negative comment – it’s just a fact that there will never be sufficient government and APS resources to combat and remedy the numbers of cases of elder abuse and the time and expertise that it takes to handle these cases. Collaboration with private attorneys is needed. I prepared a short blog post video on this in April 2015, which you can see on the following link (note, this video is prepared prior to recent equipment and presentation improvements), http://wp.me/p1wbl8-aT

I am also updating my elder abuse presentation slides, which I last posted in May of this year. I will post the updated slides in a couple of days, so do stay in touch.

Have a very good Friday, and weekend.

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

 

New California Revocable Transfer On Death Deeds – The Good – The Bad And Abuse

Posted on by

California Revocable Transfer On Death Deeds – see the video immediately below, and the primary text for the video at the bottom of this post. Thank you. Please pass this information to other people who would be interested.

P.S., and another “bad” passed along by a friend on LinkedIn – the transferred property might be (most likely is) subject to recovery by Medi-Cal to reimburse the state for expenses paid by Medi-Cal for care during the transferor’s life – in other words, use of the revocable transfer on death deed might not be (most likely isn’t) wise Medi-Cal planning. But I don’t believe many people will be aware of that. The ability to transfer property by way of the revocable transfer on death deed also is not available for all types of property – that is, for some properties the use of the deed is not available. Everyone using or potentially using the revocable transfer on death deed needs to be aware of all of the options available including when it might be used, when it cannot be used, and the results of both. My recommendation: seek knowledgeable legal counsel.

Dave Tate

Text: California Revocable Transfer On Death Deeds

Hello, I’m Dave Tate. I’m a civil and trust, estate, conservatorship and elder abuse litigation attorney. I practice in San Francisco and throughout California. I also represent fiduciaries and beneficiaries in administrations.

This discussion is about the new California revocable transfer on death deed. You can find additional information on my blog at http://californiaestatetrust.com.

You may have heard that California now recognizes a new revocable transfer on death deed for transferors who die on or after January 1, 2016. There are statutory requirements however. And here are a few of them.

The deed must appropriately identify the beneficiary or beneficiaries.

The transferor must sign and date the deed and have the deed acknowledged before a notary public.

The deed must be recorded on or before 60 days after the date that is was executed.

The transferor must have the mental capacity to contract.

If the deed is still valid and not revoked or otherwise overruled or superseded by another document, on the death of the transferor the property passes to the named beneficiary or beneficiaries without probate.

I expect that the revocable transfer on death deed will become a popular estate distribution transfer tool if the public is extensively educated about its availability and use.

The deed is promoted as an opportunity to transfer real property on death without having to incur the costs of having a will or trust prepared, or probate. That’s the opportunity for good.

On the other hand, the deed also presents opportunities for mistake and elder abuse.

The validity and operation of a revocable transfer on death deed are subject to statutory rules and requirements. Very importantly, these are rules and requirements that can be misunderstood, resulting in mistakes and unintended consequences.

As you might imagine, use of the deed also presents issues relating to intent and transferor lack of mental capacity, and opportunities for undue influence, fraud, duress, and elder abuse by family members, friends and third parties.

The validity of the deed can be contested. And I do expect that there definitely will be contests. So we will be seeing how these new revocable transfer on death deeds are used and abused.

That’s it for now. There are of course other cases and statutory provisions that can apply, and the facts of each situation are different. This discussion doesn’t constitute legal advice. You need to consult a lawyer or professional for your situation. You can find more information on my blog at http://californiaestatetrust.com. Thanks for listening.

P.S., please see also the comment above at the top of this blog post about recovery of the property to reimburse Medi-Cal for expenses paid, and that the ability to transfer property by way of the revocable transfer on death deed also is not available for all types of property – that is, for some properties the use of the deed is not available. Everyone using or potentially using the revocable transfer on death deed needs to be aware of all of the options available including when it might be used, when it cannot be used, and the results of both. My recommendation: seek knowledgeable legal counsel.

Dave Tate, Esq. (San Francisco / California)