The holiday season is quickly coming upon us. If you are a caregiver for an elderly loved one, you may notice a change in your loved one's mood as the holidays approach. Perhaps you are one of many, who visit elderly parents and family during the holidays who live a distance away. When you visit you may notice that loved ones are not as physically active, or they show symptoms of fatigue or sadness and have no interest in the holiday or in their surroundings.
According to the National Institutes of Health; of the 35 million Americans age 65 or older, about 2 million suffer from full-blown depression. Another 5 million suffer from less severe forms of the illness. This represents about 20% of the senior population -- a significant proportion.
Depression in the elderly is difficult to diagnose and is frequently untreated. The symptoms may be confused with a medical illness, dementia, or malnutrition due to a poor diet. Many older people will not accept the idea that they have depression and refuse to seek treatment.
What causes depression in the elderly? It is not the actual holiday that causes depression, but the fact that holidays tend to bring memories of earlier, perhaps happier times. Additional contributing factors that bring on depression may be the loss of a spouse or close friend, or a move from a home to assisted living, or a change with an older person's routine.
Depression may also be a sign of a medical problem. Chronic pain or complications of an illness or memory loss can also cause depression. In addition, diet can also be a factor when proper nutrition and vitamins are lacking.
As an example, Selma’s husband passed away, a few months before Christmas. Her family lived close by and would call or drop in often to check on her. Selma seemed a little preoccupied and tired, but this was to be expected as she had been the caregiver for her husband for many years. It wasn’t until the family noticed that her holiday decorations were not out and her yearly routine of Christmas card writing was not happening that they began questioning her mental and physical well being. A trip to her physician confirmed depression, caused by not only the loss of her spouse, but a vitamin B12 deficiency. There were both mental and physical reasons for her depression.
Symptoms to look for in depression might include:
- Depressed or irritable mood
- Feelings of worthlessness or sadness
- Expressions of helplessness
- Anxiety
- Loss of interest in daily activities
- Loss of appetite
- Weight loss
- Lack of attending to personal care and hygiene
- Fatigue
- Difficulty concentrating
- Irresponsible behavior
- Obsessive thoughts about death
- Talk about suicide
How do you know if it is depression or dementia?
Depression and dementia share similar symptoms. A recent article on Helpguide.org gives some specific differences: In depression there is a rapid mental decline, but memory of time, date and awareness of the environment remains. Motor skills are slow, but normal in depression. Concern with concentrating and worry about impaired memory may occur. On the other hand, dementia symptoms reveal a slow mental decline with confusion and loss of recognizing familiar locations. Writing, speaking and motor skills are impaired and memory loss is not acknowledged as a being problem by the person suffering dementia. Whether it is depression or dementia, prompt treatment is recommended. A physical exam will help determine if there is a medical cause for depression. A geriatric medical practitioner is skilled in diagnosing depression and illnesses in the elderly. If you are a care taker of an elderly person it may be beneficial for you to seek out a geriatric health care specialist. For more information on senior health services go to http://www.longtermcarelink.net/about_senior_health_services.htm
Treating depression in older people. Once the cause of depression is identified, a treatment program can be implemented. Treatment may be as simple as relieving loneliness through visitations, outings and involvement in family activities. In more severe cases antidepressant drugs have been known to improve the quality of life in depressed elderly people. Cognitive therapy sessions with a counselor may also be effective.
As a care giver or family member of a depressed older person, make it your responsibility to get involved. The elder person generally denies any problems or may fear being mentally ill. You can make the difference in and remove the Holiday Blues from seniors suffering from depression. The Geriatric Mental Health Foundation offers a “Depression Tool Kit.” To read more about the tool kit and depression in the elderly go to http://www.gmhfonline.org/gmhf/consumer/depression_toolkit.html
To find a Senior Health Care Services in your area on the National Care Planning Council website go to http://www.longtermcarelink.net/a7seniorshealthservices.htm
The National Care Planning Council supports the work of geriatric practitioners and their services to the growing senior population. If you are a geriatric practitioner and would like to list your services with the NCPC please call 800-989-8137.
Recongnizing and seeking proper treatment for elder depression is not only the morally right thing to do, it is a good way to minimize the risk of financial elder abuse.
Friday, November 7, 2008
Monday, November 3, 2008
Case of Undue Influence
We recently went to trial on a matter involving five siblings. My firm represented three of them, one remained neutral and the other ("Monica") was our opponent.
Following the passing of their Mother, Monica produced a will, trust and quitclaim deed showing that she was the sole owner of Mother's house. Those documents were challenged by my clients on the basis of undue influence.
To be successful, we had to prove that Monica procured the 1995 Will through acts of undue influence. The document was executed 13 years prior to the hearing. In most cases, the delay would have presented an obstacle at trial because memories tend to fade over time. But not in this case. My clients saw this coming from the day Monica moved into Mother's house (in 1992).
So what did they do to protect their inheritance? They kept journals. Each of them kept separate journals and made entries every time they suspected something was not right between themselves and their Mother, Monica and their Mother and between themselves and Monica. It was their individual factually specific journal entries that helped prove the undue influence and invalidate the 1995 Will.
When someone asks how they can protect their inheritance in the least intrusive manner, I often tell them to purchase a personal journal from a stationary story and make very specific and detailed entries regarding any unusual behavior involving their parents (or benefactor) and any other person--especially if it involves money.
Following the passing of their Mother, Monica produced a will, trust and quitclaim deed showing that she was the sole owner of Mother's house. Those documents were challenged by my clients on the basis of undue influence.
To be successful, we had to prove that Monica procured the 1995 Will through acts of undue influence. The document was executed 13 years prior to the hearing. In most cases, the delay would have presented an obstacle at trial because memories tend to fade over time. But not in this case. My clients saw this coming from the day Monica moved into Mother's house (in 1992).
So what did they do to protect their inheritance? They kept journals. Each of them kept separate journals and made entries every time they suspected something was not right between themselves and their Mother, Monica and their Mother and between themselves and Monica. It was their individual factually specific journal entries that helped prove the undue influence and invalidate the 1995 Will.
When someone asks how they can protect their inheritance in the least intrusive manner, I often tell them to purchase a personal journal from a stationary story and make very specific and detailed entries regarding any unusual behavior involving their parents (or benefactor) and any other person--especially if it involves money.
Thursday, January 24, 2008
How do I remove my father's conservator?
The answer is pretty simple, you can't. A conservatee's child cannot remove a conservator regardless of how egregious he or she may act. But don't worry, I am not finished with my answer.
Judges have the power and authority to remove conservators. So while a conservatee's child can't remove a conservator, he or she can ask a judge to do it by filing a petition. In California, the conservatee's spouse, domestic partner, relative, friend or any other interested person has the right to petition the court to remove a conservator. A conservator of a person or an estate may be removed for any number of causes listed in California Probate Code Section 2650. To keep this post manageable, I am only addressing the catchall cause. It states that a court has the broad authority to remove a conservator if it is in the conservatee's best interest. In summary, just about anyone has the right to ask a judge to remove a conservator and a judge can do so if he or she determines that removal is in the conservatee's best interest. Sounds simple right? Read on.
What does "best interest" mean? What kind of evidence is required? These are the types of questions you should ask yourself before going forward. The answers will differ depending on the type of conservatorship. If a person is being conserved, you might want to gather evidence showing that the conservator committed acts or omissions that put the conservatee's health, safety and/or welfare at risk. This can be difficult if the conservatee lives in a professional board and care facility. The key is to collect and present relevant and creditable evidence. The most emotionally charged persuasive "sounding" argument will fall on deft ears unless it is supported by relevant and creditable evidence.
So how do you remove a conservator? You can do it by filing a petition that is so well drafted it persuades a judge to determine that removing a conservator is in the conservatee's best interest. If the judge is moved, but wants more information, he or she may order an investigation or appoint an attorney for the conservatee. In any event, your initial petition will set the tone. Oh yea, one more thing. Don't forget to nominate a replacement conservator.
Judges have the power and authority to remove conservators. So while a conservatee's child can't remove a conservator, he or she can ask a judge to do it by filing a petition. In California, the conservatee's spouse, domestic partner, relative, friend or any other interested person has the right to petition the court to remove a conservator. A conservator of a person or an estate may be removed for any number of causes listed in California Probate Code Section 2650. To keep this post manageable, I am only addressing the catchall cause. It states that a court has the broad authority to remove a conservator if it is in the conservatee's best interest. In summary, just about anyone has the right to ask a judge to remove a conservator and a judge can do so if he or she determines that removal is in the conservatee's best interest. Sounds simple right? Read on.
What does "best interest" mean? What kind of evidence is required? These are the types of questions you should ask yourself before going forward. The answers will differ depending on the type of conservatorship. If a person is being conserved, you might want to gather evidence showing that the conservator committed acts or omissions that put the conservatee's health, safety and/or welfare at risk. This can be difficult if the conservatee lives in a professional board and care facility. The key is to collect and present relevant and creditable evidence. The most emotionally charged persuasive "sounding" argument will fall on deft ears unless it is supported by relevant and creditable evidence.
So how do you remove a conservator? You can do it by filing a petition that is so well drafted it persuades a judge to determine that removing a conservator is in the conservatee's best interest. If the judge is moved, but wants more information, he or she may order an investigation or appoint an attorney for the conservatee. In any event, your initial petition will set the tone. Oh yea, one more thing. Don't forget to nominate a replacement conservator.
Tuesday, January 22, 2008
My brother stole my inheritance--Can you believe it?
Loni contacted me at the office yesterday. She said, my brother stole my inheritance. He stole my inheritance! Can you believe it? I remained silent allowing her to go on. I love my brother, he's everything to me. I love his wife and kids. We just celebrated Christmas at his house. Our kids play together. I can't believe he did that to me, to my family. What's your brother's name? It's Michael. He's my oldest brother. He's suppose to protect me. I trusted him with everything. How could I be so stupid. How could he take advantage of me like that. My mother would turn over in her grave if she knew this was happening. Then came the tears. My mother was struck by....
(Needless to say, it was a long telephone call. Loni was suffering from the classic symptoms associated with grief. She verbalized shock, denial and disbelief. After suddenly losing her mother to a freak accident, she was about to lose her brother and inheritance to greed. Her family dynamics would never be the same. She was trying to come to terms with those unfortunate events in one telephone call.)
To help, we needed to switch roles. I needed to take charge. It was time to provide clear and specific instructions. I had to act fast. I needed estate plans, wills, trusts, powers of attorney, all financial related documents, such as, bank and brokerage statements, asset records, titles, deeds, business agreements, life insurance policies, tax returns and witness statements. It would be helpful to also have Michael's personal and financial information. I needed those things to start my investigation. We had to act fast because stolen assets have a tendency to gradually disappear over time.
After hanging up the telephone, I remember being impressed with Loni. Most people in her situation would have been paralyzed by denial. They would have waited, hoping to wake from the nightmare and resume their normal lives. Not Loni. She didn't sweep anything under the carpet. She was dealing with this matter head on. I have a good feeling about this case.
(Needless to say, it was a long telephone call. Loni was suffering from the classic symptoms associated with grief. She verbalized shock, denial and disbelief. After suddenly losing her mother to a freak accident, she was about to lose her brother and inheritance to greed. Her family dynamics would never be the same. She was trying to come to terms with those unfortunate events in one telephone call.)
To help, we needed to switch roles. I needed to take charge. It was time to provide clear and specific instructions. I had to act fast. I needed estate plans, wills, trusts, powers of attorney, all financial related documents, such as, bank and brokerage statements, asset records, titles, deeds, business agreements, life insurance policies, tax returns and witness statements. It would be helpful to also have Michael's personal and financial information. I needed those things to start my investigation. We had to act fast because stolen assets have a tendency to gradually disappear over time.
After hanging up the telephone, I remember being impressed with Loni. Most people in her situation would have been paralyzed by denial. They would have waited, hoping to wake from the nightmare and resume their normal lives. Not Loni. She didn't sweep anything under the carpet. She was dealing with this matter head on. I have a good feeling about this case.
Wednesday, January 2, 2008
The Con Next Door
The easy going helping hand that lives next to your aging mother is after your inheritance. Yes, I know that's a bold, unfounded and a bit presumptuous. But it's a warning you might want to heed. No, I am not suggesting that you file a police report or call an attorney, not yet at least. I am simply pointing out that friendly neighbors often have frequent and continuing access to your mother. With that type of access comes substantial opportunity to influence, manipulate or otherwise persuade--which should be especially concerning if your mother is infirm or susceptible to outside influences. This not a call for panic, as most helpful neighbors don't have ulterior motives. Instead remember this post like a seed planted in your mind. A yellow warning light of sorts waiting to go off if the helping hand starts reaching into the wrong pocket.
Wednesday, December 26, 2007
What's a Probate Litigator?
While preparing an outline for this topic, I searched the usual online data bases for some help in defining a probate litigator. Guess what? I couldn't find anything specific. Rather than pick a different topic, I decided to take a stab at creating a definition. I look forward to reading your constructive comments as I intend to send the finished product to Wikipedia for publication. Here's what I have so far:
Probate litigators are skilled trial attorneys who narrow the scope of their practice to probate related matters, such as contests and disputes involving wills, trusts, estates, powers of attorney, elder abuse, conservatorships and guardianships. Unlike their estate planning cousins, probate litigators usually don't get involved in the structuring, funding or managing of wills, trusts and estate plans. The biggest difference is that litigators are trial attorneys.
I'd like to improve on this definition. Do you have any ideas?
Probate litigators are skilled trial attorneys who narrow the scope of their practice to probate related matters, such as contests and disputes involving wills, trusts, estates, powers of attorney, elder abuse, conservatorships and guardianships. Unlike their estate planning cousins, probate litigators usually don't get involved in the structuring, funding or managing of wills, trusts and estate plans. The biggest difference is that litigators are trial attorneys.
I'd like to improve on this definition. Do you have any ideas?
Sunday, December 23, 2007
Trustee Duties Most Often Ignored
Serving as a trustee is not a task anyone should take lightly. It is a serious job and should be viewed as one. It could get you into a lot of trouble if not performed properly. Like a "real" job you can be replaced for making mistakes, however it does differ in one important way. You may be held personally liable for intentional or gross misconduct. But that's not all, ignorance of your duties is no defense. You are expected to know what's required and to act accordingly. Here are some examples of the duties most commonly ignored by trustees:
1.) The duty to disclose. For some reason trustees are sometimes reluctant to keep all of the trust beneficiaries reasonably informed of the trust and its administration. Let me explain, the trustee must furnish each beneficiary all material information necessary to protect the beneficiary’s interest in the trust. That includes a complete copy of the trust and an accounting of the trusts assets, debts, income, liabilities and the trustee's actions pursuant to the terms of the trust, by law or upon request of a beneficiary.
2.) The duty of impartiality. The trustee has a duty to deal impartially with all beneficiaries of a trust. She must act impartially in investing and managing trust property, while at the same time consider the differing interests of all beneficiaries. Let me explain what I mean. If one beneficiary would rather collect income for as long as possible because the trust assets are getting a higher rate of return than her own investments and another beneficiary is living hand to mouth and needs her distribution as soon as possible, the trustee is called upon to act impartially that is to say, to follow the terms of the trust and where there is discretion, she must act reasonable under the circumstances. Blindly following the recommendation of the majority of beneficiaries, over objections of the minority, or those of her favorite or respected sibling does not satisfy the duty of impartiality. Impartially means that the trustee does not favor one beneficiary over the other, including herself.
3.) The duty of loyalty. A trustee may not seek any advantage from a beneficiary, nor wield power for his or her own “aggrandizement, preference, or advantage” to the detriment of the beneficiaries. For example, trustees may not threaten to withhold distributions until beneficiaries sign waivers releasing them of any wrongdoing or deduct the costs of an accounting from only those beneficiaries who insist on having one done.
4.) The duty to avoid self-dealing. A trustee may not deal with himself as an individual, even if the proposed transaction seems fair, equitable and is made in good faith. Trustees who temporarily divert trust funds to themselves are guilty of self-dealing. Improper self-dealing is a breach of trust. Sure there are times when a trustee, who is also a beneficiary, may have the right to purchase trust property, but outside those circumstances, they should avoid any direct or indirect actions that even suggest they are self-dealing.
5.) The duty to keep trust assets separate. The trustee must properly identify trust assets and keep those assets separate from his or her own personal assets. If a trustee ever combines trust assets with his or her personal assets, the trustee is in effect defeating the trust’s purpose, as there would be no need to even have a trust. Let me be a bit more specific, trustees should never commingle money they received from the trust with their own personal bank accounts. Those funds should, instead, be deposited into a separate bank account held by the trust.
Let me just quickly recap. It has long been held by the courts, that a trustee is a fiduciary of the highest character whose duty demands uncompromising integrity. A trustee is bound to act in the highest good faith towards his beneficiaries and may not obtain any advantage by the slightest misrepresentation. Yet, some still ignore those duties. If you as a beneficiary ever run into a renegade trustee consult with an attorney right away. You have rights, which include removing the trustee and appointing someone who will treat the office of trustee as an important job.
One last thing. Trustees must be reasonably informed about their duties and responsibilities as specified under the terms of the trust. That means they must actually read the trust and if they don't understand the scope of their duties, they should retain counsel to assist them in its administration. How many of you think the average person could read and comprehend a standard family trust and carry out the duties as the trustee without consulting an attorney?
1.) The duty to disclose. For some reason trustees are sometimes reluctant to keep all of the trust beneficiaries reasonably informed of the trust and its administration. Let me explain, the trustee must furnish each beneficiary all material information necessary to protect the beneficiary’s interest in the trust. That includes a complete copy of the trust and an accounting of the trusts assets, debts, income, liabilities and the trustee's actions pursuant to the terms of the trust, by law or upon request of a beneficiary.
2.) The duty of impartiality. The trustee has a duty to deal impartially with all beneficiaries of a trust. She must act impartially in investing and managing trust property, while at the same time consider the differing interests of all beneficiaries. Let me explain what I mean. If one beneficiary would rather collect income for as long as possible because the trust assets are getting a higher rate of return than her own investments and another beneficiary is living hand to mouth and needs her distribution as soon as possible, the trustee is called upon to act impartially that is to say, to follow the terms of the trust and where there is discretion, she must act reasonable under the circumstances. Blindly following the recommendation of the majority of beneficiaries, over objections of the minority, or those of her favorite or respected sibling does not satisfy the duty of impartiality. Impartially means that the trustee does not favor one beneficiary over the other, including herself.
3.) The duty of loyalty. A trustee may not seek any advantage from a beneficiary, nor wield power for his or her own “aggrandizement, preference, or advantage” to the detriment of the beneficiaries. For example, trustees may not threaten to withhold distributions until beneficiaries sign waivers releasing them of any wrongdoing or deduct the costs of an accounting from only those beneficiaries who insist on having one done.
4.) The duty to avoid self-dealing. A trustee may not deal with himself as an individual, even if the proposed transaction seems fair, equitable and is made in good faith. Trustees who temporarily divert trust funds to themselves are guilty of self-dealing. Improper self-dealing is a breach of trust. Sure there are times when a trustee, who is also a beneficiary, may have the right to purchase trust property, but outside those circumstances, they should avoid any direct or indirect actions that even suggest they are self-dealing.
5.) The duty to keep trust assets separate. The trustee must properly identify trust assets and keep those assets separate from his or her own personal assets. If a trustee ever combines trust assets with his or her personal assets, the trustee is in effect defeating the trust’s purpose, as there would be no need to even have a trust. Let me be a bit more specific, trustees should never commingle money they received from the trust with their own personal bank accounts. Those funds should, instead, be deposited into a separate bank account held by the trust.
Let me just quickly recap. It has long been held by the courts, that a trustee is a fiduciary of the highest character whose duty demands uncompromising integrity. A trustee is bound to act in the highest good faith towards his beneficiaries and may not obtain any advantage by the slightest misrepresentation. Yet, some still ignore those duties. If you as a beneficiary ever run into a renegade trustee consult with an attorney right away. You have rights, which include removing the trustee and appointing someone who will treat the office of trustee as an important job.
One last thing. Trustees must be reasonably informed about their duties and responsibilities as specified under the terms of the trust. That means they must actually read the trust and if they don't understand the scope of their duties, they should retain counsel to assist them in its administration. How many of you think the average person could read and comprehend a standard family trust and carry out the duties as the trustee without consulting an attorney?
Subscribe to:
Posts (Atom)
