Articles Posted in Elder Abuse

Roughly 10,000 Baby Boomers will turn 65 today, and about 10,000 more will cross that threshold every day. (Pew Research)

With the massive increase in baby boomers retiring over the next decade, proper estate planning is more important than ever! When you are looking for an estate lawyer to assist you with planning — experience and knowledge from a reputable attorney is key.

What is estate planning? Estate Planning isn’t just about protecting assets, it’s about peace of mind for you and your loved ones. Our comprehensive approach is a cost-effective “no homework” way to protect your assets and prevent disputes that might arise in the future.

Don’t be tempted by “Do It Yourself” guides and kits. I have known experienced professionals whose loved ones have seen estates ruined by poorly thought-out cookie cutter solutions that left families vulnerable to taxes, litigating family members, probate, guardianship issues and unknown creditors.

Here are a few questions to consider:
• How do I insure the financial security of my spouse and children?
• How do I avoid family conflicts and ensure equitable treatment of my children?
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A typical case will involve a family member contacting me to complain about the dispositions in a will or trust of a deceased relative, with allegations that another family member or a caregiver “got” to the deceased relative to unduly benefit themselves at the expense of the other family members.

To properly analyze the case, I obtain copies of all prior testamentary documents (to determine if the terms are at variance with the current documents, and how great a variance there is).

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California defines undue influence in the Civil Code. Specifically, Civil Code Section 1575 states:

“Undue influence consists:

1. In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him;

In my last post, the person who I had accused of Undue Influence (California Civil Code §1575 ), had taken the witness stand during the trial of the case. Recall that I had alleged that my client’s elderly cousin once removed, had been unduly influenced by this person, his hired caregiver, to the extent that he revoked my client’s Power of Attorney (California Probate Code §4022), which gave her the authority and the responsibility to take care of his financial affairs, and gave that power to this caregiver. It was time for my cross-examination.

Just before I began questioning the caregiver, my client had the presence of mind to tell me that after the Power of Attorney had been taken from her, her cousin had transferred ownership of his home to his caregiver. I asked the caregiver is she owned the residence in which my client’s elderly cousin resided; she said yes … I then asked her how it came to be that she became the owner of this senior’s residence. Her response amounted to an admission on her part that she was guilty of Undue Influence. This is what she said to me and to the court:

Of course I had him deed me the house. You can’t let old people keep their houses, the state will get them when they die

I have been describing in my prior two posts how it was that my client’s complaint, alleging Undue Influence California Civil Code §1575 (and, if brought today, Elder Abuse), came to trial in the Orange County Superior Court Orange County Superior Court. Now I will describe the trial itself.

In general, trials, whether they be concerning trusts, probate or just civil litigation, all follow the same pattern. The counsel for the person who made the allegations of misconduct (usually referred to as the “Plaintiff” or “Petitioner”) begins with opening statement. This is when he or she tells the court what he expects the evidence brought before the court to prove. Counsel for the other side (usually referred to as the “Defendant” or “Respondent”) then makes his or her opening statement. At the conclusion of opening statement, counsel for the Plaintiff/Petitioner begins the case by calling his first witness. Generally, the witness testifies about facts within his or her knowledge and written evidence that he or she is competent to testify about (terms like competency to testify about written evidence are addressed in the California Evidence Code, e.g. Evidence Code §701) Counsel for the Defendant/Respondent then is allowed to cross-examine the witness, challenge the testimony or admissibility of the evidence, and when done, the next witness is called to testify. Once the Plaintiff/Petitioner has presented all of the evidence and testimony for his or her client, counsel for the Defendant/Respondent has the opportunity to call witnesses and introduce evidence that he or she believes is favorable for his client.

In this particular case, I called my client and her husband as witnesses to testify to the close relationship that my client had with her cousin and how that relationship changed once the caregiver came on to the scene. I introduced as evidence the Power of Attorney that my client had been given by her cousin, along with other documents that showed that she had been doing a good job handling his financial affairs. The other side called the elderly gentleman as a witness and then, around 4PM, called the caregiver to the stand.

As I described in my prior post, my client’s cousin, an elderly gentleman, appeared to have been taken in by his caregiver and was demanding that my client give up the checkbook and account that she maintained for him to pay his bills. I filed a complaint in the Orange County Superior Court. I served the summons on the complaint on the caregiver, which gave her thirty days in which to respond to the complaint ((California Code of Civil Procedure §412.20). She, of course, denied all of the allegations and alleged that the elderly gentleman in her care was being abused by my client. This was in the early ’80’s. The current statutes concerning Elder Abuse ( California Probate Code §21350) did not exist at that time .

The day of trial came. My client and her husband came to the courtroom with me. My client sat at counsel’s table by my side. The elderly gentleman, my client’s cousin once removed, was brought to the court by the caregiver. He and the caregiver sat at counsel’s table with the caregiver’s attorney.

The burden of proving that it was more likely than not that the caregiver had been poisoning the relationship between my client and her elderly cousin was on me, as I had brought the complaint alleging Undue Influence (California Civil Code §1575 ) on behalf of my client.The case was called, I made my opening statement and the trial began. As this was a court or bench trial, there was no jury. In this type of trial, the judge is the trier of fact and makes all findings of law and evidence. It was he who I had to convince that my client’s allegations were true.