Incapacity Category Archives — Probate Litigation Attorney Blog Published by Los Angeles, California Probate Litigation Lawyers

March 5, 2016

The Game Changer in the Legal World of Trustees, Beneficiaries and Incapacitated Settlors

To discuss your needs and discover your options, consult the Los Angeles incapacity and estate planning attorneys at Ginzburg & Bronshteyn, LLP. We serve clients in Orange County, Los Angeles, San Francisco, Ventura County, and throughout Southern and Northern California including Agoura Hills, Anaheim, Berkeley, Beverly Hills, Calabasas, Camarillo, Costa Mesa, Encino, Fullerton, Hidden Hills, Laguna, Lake Forest, Irvine, Lake Sherwood, Marin, Mission Viejo, Newport Beach, Oxnard, Palo Alto, Pasadena, San Francisco, Santa Monica, Simi Valley, Tarzana, Thousand Oaks, Torrance, Ventura, West Los Angeles, and Woodland Hills. Our attorneys are renowned for producing high quality work and working diligently to achieve our client’s goals. We have developed a reputation for effective and aggressive representation in complex and sophisticated matters as we guide you through the legal process. We are experienced and patient in obtaining and defending against conservatorships. Contact us by calling (310) 914-3222 in Los Angeles, (415) 465-6566 in the Bay Area, or (818) 787-1011 in Westlake Village, or by using our online contact form.

Ginzburg & Bronhteyn, LLP, Trust Litigator and firm partner, Yasha Bronshteyn, attended the Elder Law Committee Presentation of the Trusts and Estates Section: Giraldin v Giraldin on February 25, 2016. This program was absolutely informative for anyone who draft trusts and power of attorney documents, litigates trusts, serves as a trustee or represents a trustee or a beneficiary in the administration of a revocable trust when the trust’s settlor loses capacity. The speaker discussed the case law and how it now influences the way counsel should advise trustees and beneficiaries alike when the settlor of an otherwise revocable trust has become incapacitated. The reality is many attorneys and fiduciaries in the probate bar are still unaware of the monumental consequences, rights and duties that evolved from the California Supreme case of Giraldin v. Giraldin and related cases that came after it.

Once again Conservatorships, while intended to exist for the benefit of the protected person, can sometimes become complicated and contentious. If you find yourself in a conservatorship that has become legally combative, consult the conservatorship attorneys at Ginzburg & Bronshteyn. If you are involved in a conflict concerning a will, trust or estate, our experienced Los Angeles conservatorship attorneys are here to help clients in Marin County, Newport Beach, Santa Monica, Santa Clara County, Thousand Oaks, Ventura County, Orange County and throughout Southern California defend their rights under the law. The baby boomer population is ageing while having acquired significant wealth – ff the core of a dispute is the validity of a will, codicil, trust or trust amendment please contact our skilled attorneys for personalized legal services and aggressive representation. You may contact Ginzburg & Bronshteyn, LLP online or call us at (310) 914-3222, (714) 280-0601, (415) 465-6566, or (818) 787-1011 or by using our online contact form.

August 24, 2015

Taking and Winning an Appeal in a Conservatorship Proceeding

by Ginzburg & Bronshteyn, APC

Firm partner Yasha Bronshteyn, a practitioner who handles conservatorships, is looking forward to attending program presented by the Elder Law Committee of the Trusts & Estates Section of the Beverly Hills Bar Association. Topics will include what orders are subject to appeal, who has standing to take an appeal, and how to obtain (or defeat) a stay of the trial court’s ruling during the appeal. The speakers will also discuss recent appellate decisions involving conservatorships and provide practical guidance on the logistics of filing an appeal, preparing the appellate record, and briefing the legal issues in a conservatorship appeal. The program is set to take place on September 2, 2015.

Common issues or allegations in the Conservatorship Petition alleging the following problems:

— major impairment to short term, long term and immediate recall memory

October 17, 2013

New bill that will increase protection for Elders who are exploited by “undue influence.”

by Ginzburg & Bronshteyn, APC

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:

March 20, 2013

Report Predicts Alzheimer’s, Other Dementia to Double by 2050

by Ginzburg & Bronshteyn, APC

Dementia, 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.

March 5, 2013

California Court Rules Against Conservator in Defamation Lawsuit

by Ginzburg & Bronshteyn, APC

A 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.

July 17, 2012

Incapacitation and the California Estate Plan

by Ginzburg & Bronshteyn, APC

As 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.