California Legislature Cracks Down on Caregivers Who Marry Dependent Adults

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.

California Trustee Must Be Careful in Seeking Release from Beneficiary

By Jeffrey S. Galvin on September 3, 2019 Posted in Accounting, Conflict Avoidance, Trust Administration, Trustees

Can a California trustee require a beneficiary to sign a release in order to get a distribution from a trust? A question like this appeared recently on the AVVO “Free Q&A” page and makes for a perfect blog topic.

Trustees understandably want to wrap up trust administration without having to worry about being sued by beneficiaries. When a beneficiary appears to be litigious, the trustee may want to dangle a preliminary or final asset distribution as a carrot to get the beneficiary to sign a release. Yet, since the trustee is a fiduciary, California law does not give a trustee unfettered discretion to insist on releases. An effort to prevent trust litigation could end up sparking such litigation. Continue Reading

The Ninth Circuit Sounds A Wake Up Call – Federal Law Permits Class Action Claims Against Trustees

By J. Patrick Doust on August 22, 2019 Posted in Appeal, Bank Trust Departments, Beneficiaries, Trust Administration, Trustees

While institutional trustees may have once slept soundly considering themselves immune from class action lawsuits relating to the purchase or sale of securities on behalf of a trust, the Ninth Circuit’s recent ruling in Banks v. Northern Trust Corp. (9th Cir. 2019) 929 F.3d 1046, sounds a rousing wake up call for every trustee who professionally manages multiple trusts.

Federal law generally prohibits class actions relating to (1) misrepresentations of material fact in connection with the purchase or sale of a security, and (2) the alleged use of any manipulative device in connection with the purchase or sale of a security. Thus, for the most part, cases involving these types of allegations can only be brought individually. While institutional trustees have always had to be careful in what representations they make in the purchase or sale of securities, the potential for massive liability from class action litigation has largely been a non-issue.

However, the court in Banks v. Northern Trust Corp. clarified that this general rule does not apply to claims brought against a trustee by beneficiaries of an irrevocable trust. Therefore, institutional trustees with a large volume of trust administration files, and especially those associated with an institution that provides investment products, should now be on high alert for the potential for class action claims to be brought against them. Continue Reading

Could “The Farewell” Approach to Hiding a Terminal Diagnosis Occur in California?

By Jeffrey S. Galvin on August 12, 2019 Posted in Advance Health Care Directives, Mental Capacity

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? Continue Reading

How Do I Evaluate and Dispute a California Trustee’s Fee?

By Jeffrey S. Galvin on July 23, 2019 Posted in Accounting, Legal Expenses, Trust Administration, Trustee Fees, Trustees

This blog post views a trustee’s fee from the beneficiary’s perspective. Under California law, a trustee generally can set his or her own fee and collect it without prior disclosure to the beneficiaries. What can a beneficiary, who sees a hand reaching too greedily in the trust cookie jar, do in response?

We discussed best practices for a trustee when claiming a fee in a prior post and now consider how a beneficiary can monitor, evaluate and object to a trustee’s fee. Continue Reading

California Probate Administration Is No Time for Napping

By Christopher Miles Kolkey on July 2, 2019 Posted in Bank Trust Departments, Inheritance Disputes, Mental Capacity, Private Professional Fiduciaries, Probate, Riverside County Superior Court

In the absence of a trust that allows assets to pass without opening probate, the California probate process lasts for at least six months and can run much longer depending on the size of the estate and the nature of assets. The role of the personal representative (i.e., the “executor” if nominated in the will) is to administer the estate efficiently, resolve creditor claims, and get the assets out to the rightful beneficiaries.

By no means, of course, is the probate process supposed to drag out for two decades. That’s exactly what happened, however, in a case in Riverside County Superior Court. In Estate of Sapp (2019) 36 Cal.App.5th 86, the California Court of Appeal affirmed the probate court’s removal of the personal representative, providing guidance as to when a representative may be removed. As the opinion indicates, probate is no time for napping by the personal representative or the beneficiary: the former has a fiduciary duty to get the job done and the latter may need to poke the dozing, inept and/or corrupt representative.

A Thin Blue Line: APS and the DA Have Few Resources to Combat Financial Elder Abuse

By Jeffrey S. Galvin on June 5, 2019 Posted in Conservatorships, Financial Elder Abuse, Sacramento County Superior Court

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. Continue Reading

When Defending Becomes Offensive: California Court Expands No Contest Clauses to Defense of Invalid Amendment

By J. Patrick Doust on May 29, 2019 Posted in Inheritance Disputes, Los Angeles County Superior Court, Mental Capacity, No Contest Clauses, Undue Influence, Will/Trust Contests

No contest clauses are included in wills and trusts to discourage dissatisfied beneficiaries from challenging the document’s validity. Because enforcement of these clauses results in disinheritance, the California Probate Code limits their applicability. But what happens when a beneficiary defends a trust amendment that is found to be invalid? Can the defense of an invalid amendment be deemed a contest of the original trust?

The California Court of Appeal held last month in Key v. Tyler (2019) 34 Cal.App.5th 505 that a beneficiary’s defense of an invalid amendment to a trust, if made without probable cause, indeed can trigger a no contest clause and result in disinheritance. The court also confirmed that anti-SLAPP motions can be filed against petitions to enforce no contest clauses, a topic we have written on previously. Continue Reading

The Uncertain Role of Court Appointed Counsel in California Conservatorship Cases

By Jeffrey S. Galvin on May 20, 2019 Posted in Attorney-Client Privilege, Conservatorships, Private Professional Fiduciaries, Sacramento County Superior Court

A conservatorship, once ordered by a Superior Court judge in California, deprives a person of the right to control his or her financial affairs or person, or both. When the judge appoints counsel for the proposed conservatee, what is the lawyer’s role? Are the lawyer’s ordinary duties of loyalty and confidentiality diminished in the conservatorship setting? Should they be?

These are vexing questions that have led to varying approaches in California’s 58 counties. We sometimes represent siblings in contested conservatorship proceedings, typically in “parent custody” disputes when siblings are vying for control over Mom and/or Dad. The approach taken by court appointed counsel is an important factor in how these cases move forward and it would be helpful to all concerned to have a more uniform approach. Continue Reading

Life Insurance Policy Benefits, Once Given Away, Cannot Be Redirected

By Jeffrey S. Galvin on May 7, 2019 Posted in Asset Distribution, Beneficiaries, Gifts, Life Insurance, San Diego County Superior Court

When a man dies in California, who gets the proceeds of his life insurance policy? The answer seems obvious: the named beneficiaries in the paperwork received and accepted by the life insurance company.

But what if the man gave the policy away during his lifetime? Can he cancel the gift and redirect the proceeds to others? No, said the California Court of Appeal in Dudek v. Dudek (2019) 34 Cal.App.5th 154. Even though the life insurance company may not have recognized the gift, its recipient can recover the policy proceeds from those who received them. Continue Reading

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