While financial elder abuse is a serious problem in California, not just anyone can sue to protect an abused elder. This is especially true if the elder does not want to bring suit in the first place. On April 19, 2017, the California Court of Appeal reinforced an important issue related to standing to bring financial elder abuse claims in the case of Tepper v. Wilkins (2017) __ Cal.App.5th __. While an elder is still alive, only the elder or a qualified “personal representative” has standing to file suit for financial elder abuse. Continue Reading
New conservatorship cases in Sacramento County Superior Court have risen sharply over the past three years. Judge Steven M. Gevercer, who presides in Department 129 (the Probate Division), presented startling numbers at a March 21, 2017 lunch of the Sacramento County Bar Association’s Probate and Estate Planning Section. The panelists, including the judge and veteran court staff, spoke on “Issues Arising in Conservatorship Cases.”
According to Judge Gevercer, in Fiscal Year 2014 (ending June 30, 2014), there were 238 new conservatorship cases filed in Sacramento. The number rose to 287 new filings in Fiscal Year 2015 and 333 in Fiscal Year 2016. This amounts to a whopping 40 percent increase in conservatorship cases over the most recent three years. Continue Reading
On March 23, 2017, at the request of a certified question from the U.S. Ninth Circuit Court of Appeals, the California Supreme Court answered the age-old question – “what gives”?
That is to say, what gives – the impenetrable wall of a spendthrift trust or the ability of a bankruptcy trustee to tap trust funds for the benefit of the bankruptcy estate? The answer is neither really, but our state Supreme Court did clarify the appropriate reach of creditors into trust-protected assets in light of what the Ninth Circuit observed as “opaque” statutory provisions in the California Probate Code. Continue Reading
In a Prince-themed blog last spring, we used the singer’s untimely death to make the point that “you don’t have to be rich” to need an estate plan. While the litigation surrounding Prince’s $100-300 million estate grinds on, as well covered in the Star Tribune, here in Sacramento there’s a new pro bono Estate Planning Clinic to help low income residents prepare estate plans. Continue Reading
In our Sacramento trust and estate litigation practice there are several questions that come up over and over again. In many instances, these questions are the building blocks of our practice that lead to more complicated questions that sometimes require the filing of a lawsuit to answer. As a starting place, below are some of the more common questions we receive from trustees and from beneficiaries. Continue Reading
Most California trust and estate litigation occurs in the probate department of the Superior Court, where the assigned judge manages and ultimately decides disputes. Generally, there is no right to a jury trial so the outcome in contested cases rests with the judge, often supported by court staff who conduct file review and legal research.
The first quarter of 2017 brings changes in the assigned judges at the probate departments in Placer County Superior Court and Yolo County Superior Court, while there is continuity at Sacramento County Superior Court. Continue Reading
Beneficiaries beware: don’t dive in to trust litigation too quickly. That lesson was learned the hard way, ironically, by a diving heiress in Williamson v. Brooks (2017) 7 Cal.App.5th 1294. The California Court of Appeal decision, which related to a trust created by the founder of Kirby Morgan Dive Systems, Inc., addresses the question of how much information a trustee must give to a beneficiary, and what consequences may (or may not) befall a noncompliant trustee. Continue Reading
In a recent post, we discussed the hazards, from a tax reporting perspective, of erroneously treating California caregivers as independent contractors as opposed to employees. If a caregiver is an employee (as is often the case), her employer also must comply with the various wage and hour rules that apply to the employment relationship.
Many elders and their families simply pay caregivers a straight hourly rate for 12 or 24 straight hours of work. This approach, though convenient, may set the stage for employment litigation against the elder. Below, we’ll discuss the two sets of rules that apply to California caregivers depending on the nature of their work – those who employ caregivers will need to pick the right set of rules and follow them. Continue Reading
Hired caregivers (also known as home care aides) permit many California seniors to remain in their homes as they age and need assistance with activities of daily living. Yet from my window looking out at Sacramento, I can see massive liability associated with the classification and payment of such workers. Consider that baby boomers are now entering their 70s and a 75-year-old American has a life expectancy of 12.2 years. A growing number of seniors will need help.
Let’s say Dad has advancing dementia, perhaps caused by Alzheimer’s disease, and needs round-the-clock caregivers to help with cooking, cleaning, toileting, and dressing. His daughter, perhaps as agent under his power of attorney or as a trustee of his trust, hires a home care agency, at a rate of $25-plus per hour, to provide multiple shifts of caregivers. Then one of the caregivers offers to work directly for Dad (and to bring in others to do the same) at a straight hourly wage of $15 per hour. This could save $250 or more per day, which will add up quickly as the weeks pass.
What’s wrong with this approach? Federal and California law likely treats caregivers as employees of the elders they serve. If the elder’s family ignores the assorted legal requirements associated with the employer/employee relationship, the elder (or his beneficiaries when he dies) may face hefty liability on two fronts. As we’ll briefly discuss below, tax authorities may seek taxes, interest and penalties. In a later post, we’ll explain how caregivers may sue for unpaid overtime and failure to provide meal and rest breaks – indeed, California law encourages such suits by awarding legal expenses to prevailing plaintiffs. Continue Reading
Since California trustees generally can use trust funds to pay lawyers to handle disputes, litigation can drain away the funds available for distribution to beneficiaries. Hence, an overaggressive beneficiary can pursue litigation that penalizes all beneficiaries, even those who have no responsibility for the fight.
Last week the California Third District Court of Appeal, based in Sacramento, clarified the scope of liability for litigants who act in bad faith in trust disputes. In Pizarro v. Reynoso (2017) 7 Cal.App.5th 726, the Court of Appeal ruled that a probate court’s equitable authority to charge the trustee’s legal expenses against a party who has litigated in bad faith is limited to the party’s share of the trust estate and does not extend to the party’s personal assets. Continue Reading