Most California trust and estate disputes involve adults who can make their own choices about what to seek and how hard to litigate, such as the common scenario of siblings competing for assets. But many disputes, or at least potential disagreements, involve people who can’t fend for themselves, such as mentally incapacitated adults, children
A new case from the Court of Appeal once again illustrates the robust nature of claims under California’s Elder Abuse and Dependent Adult Civil Protection Act, also known as the Elder Abuse Act.
In Arace v. Medico Investments, LLC (2020) 48 Cal.App.5th 977, a San Bernardino County jury found the owner of a residential care facility for the elderly liable for the financial elder abuse of a resident, but did not award any damages on that claim. Nonetheless, the court properly awarded legal expenses to the plaintiff as the prevailing party. This broad view of a plaintiff’s entitlement to legal expenses shows the bite of the Elder Abuse Act and will encourage elders and their advocates to pursue financial elder abuse claims.
California trust and estate disputes often involve allegations that a surviving spouse took advantage of a deceased spouse so as to get more of the latter’s assets. Often the “spousal financial abuse” charges are leveled by the deceased spouse’s biological children against their step-parent, as discussed in a prior post. Sometimes care custodians who
As our population ages, more of our seniors are moving into assisted living facilities. The number of such facilities has nearly tripled over the past two decades, with construction of memory care units the fastest-growing segment of senior care. Half of assisted living residents are age 85 and older, and over 40 percent have some form of dementia.
In “How Not to Grow Old in America,” an article by Geeta Anand in the New York Times last year, the author discusses caring for her parents, notes the above trends, and argues that if assisted living “is to be a long-term solution for seniors who need substantial care, then it needs serious reform, including requirements for higher staffing levels and substantial training.” She cites examples of deaths and injuries that have befallen seniors at assisted living facilities in California and elsewhere.
While Ms. Anand’s focus is on the physical care of seniors in assisted living, the transition from a home environment to an assisted living environment also can lead to serious financial elder abuse.
Probate Code section 859, our subject in a recent post, packs a punch in California trust litigation. It awards double damages against someone who in bad faith wrongfully takes property from an elder, in bad faith takes property through undue influence, or who takes property through the commission of financial elder abuse.
While the
Many California financial elder abuse cases we see involve caregivers. While the vast majority are honest, a caregiver who spends many hours alone with a vulnerable client has a unique opportunity to exploit the situation. A crafty and crooked caregiver may go so far as to marry his or her client as part of a scheme.
The California Legislature has closed loopholes in the Probate Code that allow abusive caregivers to marry their way into a dependent adult’s wealth. Assembly Bill 328, signed by Governor Newsom on June 26, 2019 and effective on January 1, 2020, creates a presumption of undue influence that applies in two scenarios. The Trusts and Estates Section of the California Lawyers Association sponsored the bill and the California Judges Association supported it.
Seniors are vulnerable to financial elder abuse and are often victimized, but there’s a scarcity of government resources in Sacramento County and elsewhere in California to address the problem.
On May 21, 2019, the Sacramento County Bar Association’s Probate and Estate Planning Law Section presented a program entitled “Helping the Helpless: How You Can Help Adult Protective Services and District Attorney Protect Vulnerable Sacramentans.” The speakers were Debra Larson and Irene Chu, managers with Sacramento County Adult Protective Services, and Frederick Gotha, Deputy District Attorney who heads the Sacramento DA’s Elder Abuse Unit.
Their presentations indicated that our community would benefit if local authorities had greater staffing to combat the rising tide of financial elder abuse.
What do you do if someone steals money or property from a trust or estate? California Probate Code section 850 allows you to ask the Superior Court to order the thief to give the money or property back. To discourage such theft, Probate Code section 859 provides that the wrongdoer “shall be liable for twice the value of the property recovered,” and may be liable for legal expenses incurred to recover the property, if you can prove the wrongdoer took the asset in bad faith, through undue influence, or through the commission of financial elder abuse.
Like many California statutes, the “twice the value” language of Probate Code section 859 is not crystal clear. Thankfully, the Fourth District Court of Appeal in Conservatorship of Ribal (2019) 31 Cal.App.5th 519 recently provided guidance as to how to the calculation works.
What mental capacity standards apply in California civil litigation? Last month we presented on this subject at the Placer County Bar Association’s annual spring conference in Roseville. I’ll offer highlights here.
Short answer: it depends. The mental capacity standard varies depending on the setting. The policy rationale for the different standards is elusive, so as our clients present issues we focus on what standard governs instead of pondering why we have a hodgepodge of rules.
California’s Elder Abuse and Dependent Adult Civil Protection Act is elastic enough to encompass claims arising from sharp insurance sales practices, even when elders do not pay anything directly to the agents. So concluded the First District Court of Appeal earlier this month in Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 12