Tag Archives: will

Elder Abusers Use The Legal System Also

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You might be surprised that elder abusers aren’t necessarily worried or scared of the legal system.

In my experience, most abusers as a personality trait believe that they can get away with the abuse because they believe that other people are stupid, or that they simply won’t be caught, or that other people won’t make the effort or don’t have the time and resources to stop them.

You might also be surprised to know that elder abusers use or try to use the legal system to help them commit the abuse. Here are a few of the ways that I have seen.

-The abuser calls the police and complains that other people, the good people, are abusing, or mistreating, stealing from, or unduly influencing the elder. The abuser tries to turn the tables on the good people so that the abuser can then have the elder victim alone.

-Similarly, the abuser calls adult protective services and complains that the good people are mistreating or stealing from the elder.

-Another example, the abuser obtains an attorney who will draft a will, or trust, or power of attorney for the elder naming the abuser, and the attorney does not understand or sufficiently care about his or her ethical and legal obligations to the elder who is the attorney’s client.

-Or the abuser files a contest of the elder’s will or trust documents.

-Except in situations of immediate theft, typically the abuser works at this for a continuous period of time taking small steps forward, influencing the elder against the good people and eventually getting the assets, documents or evidence that help the abuser.

And in another example, the abuser promises the elder victim something that the elder wants, something that will make the elder happy, such as . . . “if you sign the power of attorney I will be able to take you home,” even when it’s clear that medically or for daily care the elder should stay in the nursing home.

The list goes on. These are cases that are difficult and time consuming, and can be expensive to prosecute – it takes good people to take action.

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San Mateo County’s New Elder and Dependent Adult Protection Team – The Good and the Insufficient

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You may have heard that the San Mateo County Board of Supervisors this month passed a resolution funding the Elder and Dependent Adult Protection Team “EDAPT” (also sometimes known as or similar to “FAST” or “Financial Abuse Specialist Team” in other counties such as Los Angeles) for two years from the County’s Measure A funding. The initiative is funded with approximately $3.13 million taxpayer dollars over two years with the funding to begin July 1, 2015 and will run through June 2017. Click here for the link. The comments in this blog are my own. As you may know, I have handled trust, estate, conservatorship and elder abuse litigation cases for over 20 years. I have become a bit more expressive or activist in my comments. These comments are not criticisms of anyone who is trying to combat elder and dependent adult abuse. But the fact is that resources are inadequate to identify and then to stop and remedy abuse. And although resources will always be inadequate, one resource, private attorneys, is entirely or almost entirely unutilized in this battle. Until entities that receive reports of abuse arrange for a procedure to refer cases to private attorneys there is absolutely no way that those agencies, including Adult Protective Services (APS), the District Attorney, the police, county counsel, etc. can come close to protecting the abused and remedying the damages that they suffer. In fact, the link above seems to indicate that the new EDAPT initiative is primarily a community educational program, which does not involve legal or court system remedies.

Let me provide you with a quick example that should help to explain the situation and the grossly inadequate resources. The Link above states “Research shows that for every one case of older adult abuse [note that this apparently does not include dependent adult abuse] that is reported – there are another 24 that go unreported.”  The link also states “Reports of older adult abuse have been on the rise as the county’s older adult population continues to grow – which is estimated to grow by over 70% by 2030.” I don’t know how many incidents of abuse Adult Protective Services receives in an average month in San Mateo County – maybe one of my readers will respond with the average monthly number. Let’s just say that in an average month APS receives 30 reports of elder or older adult abuse (again, we are not even counting the additional cases of dependent adult abuse reporting). I suspect that the reports exceed 30 per month; however, if research indicates that for every report of older abuse there are another 24 that go unreported, that would be 30 x 25, or 750 incidents of adult abuse in an average month. Do you know how much time and effort it takes to stop and then remedy just one case of elder abuse through the court system? Well . . . that number does vary from case to case, but I can tell you that based on my experience in my cases, the number of hours is huge and the time (i.e., months or even years) that it can take also can be staggering. I can also fully confirm that abusers actively fight legal actions that are brought against them. They know or believe that resources are limited and inadequate, and that they might stand a reasonable chance of beating the system.

The new initiative is for two years, at an average funding of roughly $1.5 million per year. The funding started July 1, 2015, so we already have 3 months done in the first year of the initiative. I have been looking for a detailed two-year plan for the initiative – perhaps one of my readers can tell me where I can find that plan. I have written and videoed about this topic before, and the inadequate resources. Again, I fully support the efforts of everyone who is fighting elder and dependent adult abuse, but let me say that resources are inadequate, and you really, really need to bring vetted private attorneys into the effort through referrals or by whatever means makes the report receiving agencies (i.e., APS, etc.) comfortable.

Best, Dave Tate, Esq. (and licensed inactive CPA), San Mateo County, San Francisco Bay Area, and throughout California

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

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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

Blog Stats. Chart – Oct. 2015: 1,000 Views/700 Visitors – 2015: 9,000 Views/6,000 Visitors

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Blog Stats. - Oct. 2015

Updated Elder Abuse and Protection Presentation Slides – Please Read and Forward

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I have provided below a link to a PDF of my October 12, 2015, updated elder and dependent adult abuse and protection presentation slides. The slides are extensive. This is an important topic – and the resources are not sufficient to prevent or remedy the problem.

Please read and also forward this post and the materials to other people who would be interested. Click on the following link for the PDF and slides, ELDER ABUSE AND PROTECTION 10122015 FINAL

You can also find other discussions about this topic on other blog posts.

Thank you. Dave Tate, Esq., San Francisco and throughout California

IMPORTANT NEW CONSERVATORSHIP JURY RIGHT CASE (LPS) – AND THE IMPACT ON PROBATE CONSERVATORSHIP JURY RIGHT

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Conservatorship of Kevin A., California Court of Appeal, Fifth Appellate District, October 2, 2015, Case No. F070914

In the LPS (Lanterman-Petris-Short Act) conservatorship of Kevin A. the Court of Appeal held that the proposed conservatee, Kevin A., was denied his right to a jury trial where he objected to the petition for conservatorship and he personally expressed his request for a trial by jury, but the Court nevertheless proceeded to determine the matter without a jury. Here is a copy of the Opinion, Conservatorship of Kevin A. Opinion from Court Website

In relevant part, the Court held as follows:

  1. In a situation where a proposed conservatee objects to or contests the petition for conservatorship, the right to proceed before a jury at trial, as opposed to an adjudication by the Court, rests completely with the proposed conservatee, not with the proposed conservatee’s attorney or the Court, unless the Court first finds that there is substantial evidence that the proposed conservatee lacks the capacity to decide for himself or herself whether to proceed before a jury.
  2. In Kevin A. the Court made no specific finding that Kevin A. lacked capacity to decide for himself whether to proceed before a jury.
  3. Alternatively, if the Court determines that there is substantial evidence that the proposed conservatee lacks the capacity to decide whether to proceed before a jury, the control of the decision whether to demand or waive the right to a jury belongs to the proposed conservatee’s attorney, despite the proposed conservatee’s objection.
  4. Regardless of the fact that a proposed conservatee suffers from mental illness or related disorders, those conditions preclude any categorical inference that the proposed conservatee is unable to make a decision regarding whether to demand or waive a jury trial.

In a LPS conservatorship the petitioner, not the proposed conservatee, has the burden of proving that the conservatorship should be granted. Here’s an interesting question: since in a LPS conservatorship an adjudication by a jury to grant the petition for conservatorship must be unanimous, in the situation where the proposed conservatee is objecting to or contesting the need for the conservatorship, would there be a strategic advantage for the proposed conservatee to demand a jury trial instead of proceeding before the single judge?

Next question, how, if at all, does the holding or reasoning in Kevin A. also impact or relate to general probate conservatorship proceedings under California Probate Code §§1800, et seq.? In summary, for the reasons discussed below, it appears that the reasoning in Kevin A. would similarly apply in general probate conservatorship cases and the proposed conservatee’s right to decide whether to proceed before a jury in those cases.

In a general probate conservatorship the proposed conservatee also has the right to demand a jury trial on the issue whether or not the conservatorship should be granted. Probate Code §1828(a)(6). Additionally, in a general probate conservatorship both the court investigator and the Court are required by statute to inform the proposed conservatee about a number of his or her legal rights, including, or example, his or her rights to object to the petition for conservatorship, and to decide whether or not to have a jury trial. See Probate Code §§1826 and 1828.

Both LPS and general probate conservatorships also follow the normal rules of civil procedure. Probate Code §§1000, 1827 and 2100; Welfare and Institutions Code §5350. In fact, although the LPS conservatorship statutory provisions are provided for under the California Welfare and Institutions Code (see W&I Code §§5000, et seq.), the Court in Kevin A. stated as follows, recognizing that the procedure for establishing a LPS conservatorship is also the procedure that is used for establishing a general probate conservatorship:

“Section 5350 provides, in relevant part, the “procedure for establishing, administering, and terminating a conservatorship under this chapter shall be the same as that provided in Division 4 (commencing with Section 1400) of the Probate Code ….” Probate Code section 1827 provides: “The court shall hear and determine the matter of the establishment of the conservatorship according to the law and procedure relating to the trial of civil actions, including trial by jury if demanded by the proposed conservatee.” Section 1828 of the Probate Code requires the court to “inform the proposed conservatee” of his or her “right to oppose the proceeding, to have the matter of the establishment of the conservatorship tried by jury, to be represented by legal counsel if the proposed conservatee so chooses, and to have legal counsel appointed by the court if unable to retain legal counsel.” (Prob. Code, § 1828, subd. (a)(6).) Thereafter, the court must “consult the proposed conservatee to determine the proposed conservatee’s opinion” regarding the “establishment of the conservatorship,” the “appointment of the proposed conservator” and any limitation to his or her legal capacities. (Prob. Code, § 1828, subd. (b)(1)-(3).)”

Similar to a LPS conservatorship, in a general probate conservatorship it is also the burden of the petitioner to prove that there is a need for a conservatorship, i.e., that the petition for conservatorship should be granted. Although the amount or degree of proof that is required to prove that a conservatorship should be granted is different in a LPS conservatorship than it is in a general probate conservatorship, beyond a reasonable doubt compared to clear and convincing evidence, respectively, and a LPS generally is probably thought of as being a more serious type of conservatorship, an argument can be made that a general probate conservatorship could be an equally or even more serious type of conservatorship because the LPS conservatorship lasts for one year, at which time it must be renewed, whereas the general probate conservatorship lasts until it is either modified by Court order or the conservatee dies. Additionally, in general probate conservatorships the conservator and the Court also are or might be making decisions relating to the conservatee’s personal freedoms and restrictions, placement including possible locked or restricted facilities, and medications.

Conservatorship cases are numerous in number and involve important rights, but relatively speaking there have been very few appellate-level court decisions involving conservatorships. And, although I don’t have the statistics, if the statistics even exist, there are very few jury trials in contested general probate conservatorships – jury trials are not encouraged although the proposed conservatee has that absolute right. Further, whereas there are Judicial Council jury instructions for LPS conservatorships (see CACI 4000-4013), jury instructions for general probate conservatorship jury trials are not provided, although you can find a sample jury instruction that I wrote at http://wp.me/p1wbl8-8Q

Having more jury trials in conservatorship proceedings is a mixed bag. We have been primarily discussing the rights of the proposed conservatee because in fact it is only those rights that are being variously protected or restricted in general probate conservatorship proceedings. But requiring or having more jury trials in contested general probate conservatorships to a certain extent does put more burden on the Court system – seating a jury and conducting a jury trial does take more time. And if they had a choice, the majority of the parties who find themselves petitioning for the establishment of a conservatorship logically might greatly prefer to not have to incur the additional time, expense, and uncertainty that a jury trial can cause. Some people might also argue that having to seat a jury in some or perhaps even in many conservatorship cases could be wasteful of resources or should be unnecessary where it might appear evident beforehand and even prior to trial that some form of assistance or conservatorship might be helpful or granted. Nevertheless, those arguments could be made in every case, whether civil, criminal or probate, where a party has a right to decide whether to proceed before a jury, and at law do those arguments overlook the proposed conservatee’s acknowledged legal and procedural protections and rights?

Following the reasoning in Kevin A. and viewing the proposed conservatee’s personal and procedural rights from a legal prospective, in a contested general probate conservatorship, unless the Court determines that there is substantial evidence that the proposed conservatee lacks the capacity to decide whether to proceed before a jury, the decision whether to have a jury trial rests with the proposed conservatee. And arguably in some cases it might be strategically advantageous for the proposed conservatee to demand a jury if the proposed conservatee could have a better chance of prevailing compared to when the adjudication is being made by the single judge.

And one last final question or issue: in both LPS and general probate conservatorships, has it been sufficiently explained to the proposed conservatee not only what the petition requests and that he or she has the right to agree to or to oppose the conservatorship, but also that he or she has the right to a jury trial and whether a jury trial could present advantages or disadvantages in that specific case?

Dave Tate, Esq., San Francisco and throughout California

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

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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

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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)

California Trustee Discretionary Powers – Video

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California Trustee Discretionary Powers – 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. Dave Tate

Text: California Trustee Discretionary Powers

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

This discussion is about trustee discretionary powers. You can find additional information on my blog at http://californiaestatetrust.com.

A trust will typically contain provisions that give the trustee discretionary powers, that is, the power to use his or her own judgment in specific circumstances. The courts will strictly construe the amount of the discretion from the language in the trust document and the intent of the trustor.

Be cautious, however—and this is important, even if the trust provides sole, absolute or uncontrolled discretion, courts still require the trustee to act within the fiduciary standards, to not self-deal, and to not act in bad faith or in disregard of the purposes and interests of the trust and of the beneficiaries. You can refer to Probate Code §§16080-81.

In other words, if the issue of a trustee’s discretion is presented to the court, the judge will make a determination based on his or her own evaluation of the trust, the trustor’s intent, and the circumstances at issue.

Unless limited by the terms of the trust, the trustee will also have other statutory powers. You should review the powers and limitations specified in the trust document, and also the powers listed at Probate Code §§16200-16249. These sections are important – however, they are too detailed to include in this discussion.

That’s it for now. There are of course other cases and statutes 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.

Dave Tate, Esq. (San Francisco / California)