Articles Posted in Incapacity

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Elder abuse is the physical, emotional, financial, sexual mistreatment or neglect of our elders. Abuse may occur at the hands of the very people entrusted with the care of an elder, such as caregivers and nursing home staff, or may be caused by family members, trusted advisors, or strangers. According to the National Center on Elder Abuse, approximately one to two million Americans aged 65 or older have been the victim of elder abuse. According to a MetLife study, financial abuse robbed elder Americans of an estimated $2.9 billion in 2010, up 12 percent from 2008.
Fortunately, on October 9, 2013, California Governor Brown signed AB 140 into law.

AB 140 gives a new definition for California’s undue influence statue, which has not been changed since its enactment in 1872. The AB 140 modernization means that there is now greater protections for elders and dependent adults because the new definition of undue influence allows a court to consider:

(1) the vulnerability of the victim,
(2) the influencer’s apparent authority,
(3) the use of manipulative and unfair tactics and,
(4) whether an inequitable economic consequence resulted.

Because of AB 140, California’s definition of undue influence is now consistent with contemporary views of vulnerability, mental health, and fairness; AB 140 brings greater clarity to the determination of when excessive persuasion becomes exploitative.

If you have questions about a loved one’s mental capacity, call the law firm of Ginzburg & Bronshteyn, LLP at (310) 914-3222 or (818) 787-1011. Our knowledgeable Los Angeles probate and trust litigation attorneys are available to help individuals throughout Southern California with all of their estate litigation needs. The skilled lawyers at Ginzburg & Bronshteyn represent clients in Hollywood, Santa Monica, Los Angeles, West Los Angeles, and Beverly Hills. To discuss your estate litigation matter with an experienced attorney, do not hesitate to contact Ginzburg & Bronshteyn online today.

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elderly-man-.jpgDementia, whether spurred by Alzheimer’s disease or other causes, is becoming an ever-increasing issue. With studies and forecasts universally predicting a continued dramatic rise in the occurrence of dementia in the decades ahead, the number of families touched by dementia will similarly grow, placing an increasing spotlight on the need for proper estate planning to address the issue of incapacity. It may be prudent to nominate an individual to serve as conservator of the person in the event a conservator of the person is to be appointed.

Studies performed by a variety of sources uniformly agree that the incidence of Alzheimer’s and other dementias is increasing significantly. In 2012, the Alzheimer’s Association concluded that the number of Alzheimer’s disease cases in the U.S. totaled around 5.4 million, and predicted the number of annual new cases in 2050 would be double the current rate of new diagnoses. Studies agree that the likelihood of developing Alzheimer’s increases with age. 96 percent of currently diagnosed Alzheimer’s patients in the U.S. are age 65 or older. As medical technology and access to health care improve, and the number of people living beyond the age of 65 increases, so too will the number of dementia cases.

Closer to home, a separate Alzheimer’s Association report concluded that more than 588,000 California families were living with the disease in 2008. The association estimated that number to swell to 678,000 in 2015, and nearly 1.15 million by 2030. Being diagnosed with Alzheimer’s does not automatically make you incapacitated under California law. According to Section 811 of the Probate Code, incapacity requires a significant impairment of the ability to understand and appreciate the consequences of his or her actions brought on by a deficit in one or more of: alertness and attention, processing of information, clear thinking, and ability to control and regulate mood and affect.

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camerman-and-news-reporter-working.jpgA California woman serving as a conservator lost her defamation lawsuit against a Sacramento television station as an appeals court concluded that she could not prove that the reports aired the report with knowledge that their information was false, or at least reckless disregard for its falsity. In reaching it conclusion, the court in Young v. CBS decided that, because conservators are very powerful agents acting under the authority of a court order, and could reasonably trigger scrutiny by the public, they are public figures for purposes of defamation lawsuits. The ruling serves as a warning to any a conservator in California, making clear that, by accepting an appointment as a conservator, any person may subject him/herself to public figure status, and a much more difficult path to recovery, if he/she believes he/she is defamed by a news organization.

In November 2006, Sacramento County Adult Protective Services asked Carolyn Young to serve as the conservator for an allegedly incapacitated adult, 86-year-old Mary Jane Mann. Young, a professional conservator and fiduciary for more than a decade and a half, petitioned the court for the appointment. Almost immediately after the court appointed Young as temporary conservator, the senior and one of her daughters, Monika Mann, began contesting the conservatorship. A non-judicial mediation yielded an agreement where Young agreed to petition for dissolution of the conservatorship in exchange for Young becoming a co-trustee of Mann’s trust.
Shortly thereafter, the CBS television station in Sacramento, KOVR-TV, investigated the Mann conservatorship. A week later, KOVR aired a news story entitled “A Life Hijacked,” which stated that Young “effectively took over Mann’s life without Mann’s knowledge [including] Mann’s bank accounts, investments, and her trust. Young had Mann’s mail forwarded to her office and had Mann’s driver’s license lifted.” The report went on to claim, or insinuate, that Young stole from Mann, threatened her, battered her and trespassed onto her property.

Young sued CBS for defamation. On appeal, the California Court of Appeal ultimately ruled for CBS and ordered the trial court to dismiss Young’s lawsuit.

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1193476_dark_question_3 sxchu username svilen001.jpgAs medical technology advances, Americans are increasingly living longer lives. This means many people are at a greater risk for becoming incapacitated in some way prior to death. When an individual becomes incapacitated, they are no longer able to make important financial decisions and manage their own affairs. Additionally, incapacitation may call into question important estate planning documentation such as wills and trusts.

Most estate plans will include a revocable living trust, a will that pours specified assets over into the trust upon death, a financial power of attorney, a healthcare power of attorney, and a living will. In order to execute such estate planning instruments, an individual must be of sound mind. If the person executing the estate planning documents lacks capacity, his or her will, trust, and other documents may be subject to a court challenge. According to the California Probate Code, the capacity required to execute a will is fairly easy to demonstrate. An individual who possesses the capacity to create a will understands that a will is being created, is aware of the extent of his or her property or other assets, and recognizes heirs and other individuals who will be affected by the provisions of the will.

In order to create a revocable living trust in California, however, an individual must generally demonstrate the same level of capacity required to enter into a contract. This is a higher capacity standard than what is required to execute a will. California’s Due Process in Competence Determinations Act states an individual must be able to understand the rights and responsibilities created by a decision, the benefits, risks, and alternatives to a decision, and the likely consequences for both the decision-maker and anyone likely to be affected by the decision. Although this capacity standard applies to most estate planning documents, a California appeals court recently said that the property transfer conditions included in a trust document would still be valid so long as the creator demonstrated the capacity to execute a will.

As a general rule, a properly executed revocable living trust and powers of attorney will name an individual who will make decisions on behalf of an incapacitated person. The point at which this authority may be transferred, however, can vary. Although loved ones and doctors will normally make this decision, some estate plans require the approval of a court. The standard will often vary based upon the length of time an individual would like to maintain control over their finances and healthcare decisions.

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