Elder Abuse, Probate And Trust Administration Attorneys You Can Trust
California recognizes that elderly adults, who are 65 or older, are particularly vulnerable to physical abuse, neglect, and financial abuse. Physical elder abuse or neglect may occur in a nursing home, hospital, with home care, at an independent living center, or other settings. Elder financial abuse often involves a trusted relationship – one between elderly people and a trusted relative, caregiver, financial advisor, or any other person in a confidential or fiduciary relationship.
All elderly people, regardless of their economic or social position, are potential victims of elder abuse. California law expressly protects elders from different types of elder abuse — physical abuse, neglect, and financial abuse. If you or a loved one is a victim of elder abuse, The Sargoy Law Firm can help.
What Constitutes Physical Abuse
Physical abuse under California law includes wrongful conduct such as battery; assault; sexual assault; unreasonable physical constraint; false imprisonment; isolation; abduction; prolonged deprivation of food or water, use of a physical or chemical restraint, medication for punishment or other unauthorized purpose; or other treatment which causes harm, pain or mental suffering.
A relative or caregiver may commit physical elder abuse, and elder abuse may occur while the elder adult is in the care of a nursing home, hospital, the elder’s own home, or another caregiving facility. The perpetrator is typically someone in control of the elder adult who is compromised in some way or otherwise helpless to prevent the abuse.
How The Law Defines Financial Abuse
Financial abuse may involve various types of fraudulent conduct, including the taking, concealing or misappropriating an elder person’s funds, real estate, or personal property, as well as through undue influence of the elder to change his or her estate plan to benefit the perpetrator during the elder’s lifetime or following his or her death.
In many cases, the perpetrator of financial abuse is a relative or caregiver, whereas in other cases, the perpetrator has been a financial advisor or even a lawyer. In some cases, scam artists or con men have fraudulently acquired an elder’s assets.
At other times, financial abuse has occurred when a caregiver has forged the elder person’s signature on a check or other document, has persuaded the elder person to transfer cash or assets into the perpetrator’s name, or when a relative or other trusted person has caused the elder to change his or her will or trust.
Fortunately, California law now requires bank employees, along with health care professionals, social workers, nursing home employees, and members of the clergy to report suspicious financial activities involving elderly persons to the appropriate adult protective services or law enforcement agency.
Legal Protections Against Neglect
Neglect is the failure of a person having care or custody of an elder to use reasonable care to assist with personal hygiene; provide food, clothing, or shelter; make available medical care for physical and mental health needs; protect the elder from health and safety hazards, malnutrition or dehydration. Caregivers or others who neglect elderly persons in their care or custody may be liable to the older adult for damages or to his or her family after the person’s death under California law.
Our lawyers provide legal services in the area of elder law and can advise the best course of action in handling suspected elder abuse. Whether your elder abuse case involves physical or financial abuse or neglect, they can assist you in its resolution, whether through advice, negotiation, or litigation. We stand ready to provide trustworthy and confidential counsel during this delicate and traumatic time.
The Probate Or Probate Administration Process
Probate administration is the legal court process that must occur when a person dies with assets and a will (known as testate) or without a will (intestate). It is primarily governed by state law known as the Uniform Probate Code. It ranges from the simple to the complex, depending on the value and type of assets involved. Often, but not always, it involves a court process that requires the filing of a will and petition to the court, notices, and a variety of legal proceedings supervised by the superior court in the county where the decedent resided.
The goal of probating an estate, whether testate or intestate, is to manage the decedent’s assets, pay creditors or oppose certain creditors’ claims, file tax returns and pay taxes, and distribute assets to either the beneficiaries of the will or to the heirs of the decedent if there is no will. The person who is legally appointed by the court to probate the will is called the executor. If there is no will, the person legally appointed by the court to probate the decedent’s assets is called the administrator.
Both the executor and administrator, as well the attorneys who represent them, are entitled to fees and reimbursement of costs. The fees for the regular process of filing for probate and administration are known as “ordinary” fees, and they are based on a California Probate statute which calculates the ordinary fees based upon the fair market value of the estate assets, the income earned during administration, as well as gains and losses incurred, and known as statutory fees. “Extraordinary” fees relate to extra work performed by the executor and/or attorney that is required during the probate process. Some examples are the preparation of an estate tax return, sale of property, managing a business, and handling litigation. All fees, both statutory and extraordinary, must be approved by the court.
The probate process is complex and governed by 1,500 pages of probate law, court rules issued by each county superior court, as well as case law. To successfully navigate through an estate administration matter, it requires knowledge of the law and court procedures.
What Constitutes Trust Administration
A trust is a legal document created by a person (grantor) to hold, manage, and distribute assets. There are many different types of trusts. The most common type that families utilize is a revocable living trust, which is established while the grantor is alive. The person or trust company that acts under the terms of the trust and receives the grantor’s assets, manages those assets, and makes distributions to the beneficiaries of the trust is known as the trustee.
The administration of the trust must be in accordance with the terms of the written trust document and the California trust laws. The statutory trust law is primarily contained in the California Probate Code. Most revocable living trusts are not supervised by a court unless the language in the trust requires it or if the trustee needs guidance from a court or needs to do something not authorized by the trust.
A trust beneficiary also has the right to seek court assistance for a variety of reasons. One example is when a beneficiary requests an accounting and the trustee refuses to comply with the request. The beneficiary can then petition the court to order the trustee to account.
Like the probate process described above, the trust administration process is complex, and a trustee will require guidance from experienced counsel to comply with the trust terms, be fully knowledgeable of his or her fiduciary duties, and comply with the law. The administration process also involves notifying creditors in a specific and timely fashion, paying or denying to pay creditors, managing the assets, filing tax returns, paying taxes, and acting in a competent, ethical manner known as fiduciary duty. A breach of that duty may result in serious adverse consequences to a trustee.
The Sargoy Law Firm represents and advises both personal and professional trustees as well as trust beneficiaries.
Protecting Your Rights In Probate And Trust Litigation
When someone dies, disputes between the deceased person’s estate or trust, on the one hand, and heirs or beneficiaries, on the other hand, may arise. As with most court proceedings, there are strict time frames for litigating such disputes. Failure to meet those time frames can lead to difficulties in maintaining challenges to wills or trusts, or possibly prevent a person from bringing such challenges altogether. Time is of the essence in all probate, estate, and trust matters. Consulting with a knowledgeable attorney as soon as a death occurs is critically important to evaluate and act promptly to preserve evidence, which is an essential component to prevailing in any lawsuit.
Let Us Help You
Contact our attorneys for a confidential and knowledgeable consultation about your suspected elder abuse case by calling 310-208-1003. Our offices serve clients in Los Angeles and throughout California.