Operators of skilled nursing facilities want their patients to enter into arbitration agreements. While such agreements don’t eliminate the risk of litigation, they at least reduce the expense and exposure associated with potential jury trials.
California appellate courts, however, have taken an ever narrower view of who can sign arbitration agreements on behalf of patients. Just
Studies and surveys reveal an equity gap in estate planning. Americans in communities of color are less likely to have plans in place, a troubling disparity given how important estate planning is for all of us.
Advance health care directives allow elders to choose a decision maker and to express preferences as to palliative care
Recent decisions by the California Court of Appeal have heaped stress on the owners/operators of residential care facilities for the elderly (“RCFEs”).
RCFEs, like other businesses, would prefer to avoid the court system and jury trials by obtaining residents’ consent to the arbitration of any disputes that might arise. But as California appellate courts are
Can a temporary conservator of a person effectively sign paperwork that admits the conservatee to a California senior living facility subject to an arbitration agreement? Only if the temporary conservator has special authorization to do so.
Holley v. Silverado Senior Living Management, Inc. (2020) ___ Cal.App.5th ___, decided in August, is a cautionary tale
What a difference a few weeks make! A month ago, the COVID-19 virus was a distant threat. Over the last few weeks, California courts and law offices have closed, leaving families at home and uncertainty as to when “normal” will return.
Colleagues share that COVID-19 has led to a flurry of calls from clients who want to push forward to complete estate plans that they had left unfinished. Folks who never had estate plans also are seeking to get them done.
California’s estate planning formalities, however, create challenges in our pandemic situation.
In “The Farewell,” now out in theaters, family members choose not to tell the matriarch (“Nai Nai”) of her terminal lung cancer diagnosis. They use the pretext of a wedding to get the family together in China so that they can spend time with Nai Nai one last time without actually saying goodbye. The well-meaning thought is that she will be happier and live longer if she thinks she’s healthy.
Written and directed by Lulu Wang, the critically-acclaimed film is promoted as being “based on an actual lie.” Wang explained a few years ago on the radio program This American Life that the story came from her own family’s experience.
In the movie version of the tale, Nai Nai’s granddaughter Billi (played by Awkwafina) who has grown up in the United States struggles with whether withholding the truth from Nai Nai is the right thing to do.
What if we import this story into the Golden State? Could Nai Nai, if a resident of California, be kept in the dark about her cancer diagnosis?
Incapacity planning is a major component of an estate plan. Quite often people name one person to serve as a health care agent and another person to serve as a financial agent. What role does one agent have as opposed to the other in the context of contracting for medical services?
While the Probate Code does not provide a bright line, a recently-published California case explores the question in the context of the admission of a patient to a residential care facility for the elderly. The Third District Court of Appeal, in Hutcheson v. Eskaton FountainWood Lodge (2017) 17 Cal.App.5th 937, found that the health care agent was the one authorized to admit the patient and the facility’s failure to obtain consent from that agent nullified an arbitration clause, thus exposing the facility to litigation in Superior Court.
A recent California appellate case, Stewart v. Superior Court (2017) 16 Cal.App.5th 87, validates the primacy of medical powers of attorney and (as they are more currently known) advance health care directives. Medical providers who disregard the instructions of duly-appointed health care agents by providing unauthorized treatment may be liable in California for elder abuse in addition to medical malpractice.
We focus our blog on the financial aspects of California trust and estate disputes. But, as we increasingly become involved in “parent custody” fights and other conflicts over the care of elder and dependent adults, it is important to understand the authority vested in an agent under a health directive.
I’m a sibling lawyer. My career started early, as a middle child, and now continues as a Sacramento-based trust and estate litigation attorney. Most of my clients are grappling with sisters or brothers over the care and finances of aging or deceased parents. In Family Feud parlance, my “survey says” that sibling versus sibling is the top category of matchups in California trust and estate disputes.
Will this happen in your family? What leads siblings to litigate? In many of my cases, cracks in family relationships were evident long before anyone filed papers at the courthouse. But I’ve had many clients tell me they were always close to their siblings and “never saw it coming.”
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.