Before there was Kim Kardashian, Nicole Richie, and Paris Hilton, in the 1940's the socialite celebrity who was famous for being famous was Brooke Astor. By the time she died in 2007 at the age of 105, she was best remembered for two things: First, she was a philanthropist of the first order who donated and raised money for the Metropolitan Museum of Art, The New York Public Library and many other important institutions. Speaking of her philanthropy, Brooke once famously said: "Money is like manure; it's not worth a thing unless it's spread around."
Today Harvey Weinstein, facing criminal sexual abuse charges, turned himself in to the New York Police Department. Weinstein's arrest amid continuing sexual-harassment revelations is an important event. The spotlight on sexual-harassment wrongdoing continues. So, while the national conversation continues on harassment, another form of harassment - elder abuse, financial and physical, also deserves a spotlight. Such abuse is a growing problem in our country. There are more than 50 million Americans who are age 65 and older.
Trust instruments are like a set of instructions. They can be like a clear day or a murky pond. A good set of instructions should be simple, readable and avoid legal jargon. The settlor, the maker of the trust, should work to clearly identify the beneficiaries of his trust, their form of interest (income or principal) and the timing and plan of distribution.
Elder financial abuse puts a senior's livelihood and well-being in jeopardy, and the problem isn't going away. If anything, the epidemic of exploitation against our elderly loved ones is only expanding, with Bloomberg recently estimating the annual losses across America at $37 billion. And this month Wells Fargo released its Elder Needs Survey, a study that interviewed 784 older Americans and 798 adult children of seniors. Its results help give us a fuller picture of how wrongdoers can find opportunities to perpetrate elder financial abuse, and how we can stop it or prevent it altogether.
Today I was honored to lead a presentation for a Continuing Legal Education seminar on trustee removal. Along with co-presenters Robert Paine and Hackard Law's own Dave Jones, we delivered a comprehensive breakdown of the reasons for and tactics of removing bad trustees. Under California Probate Code 15642(b), there are nine clear reasons a trustee can be removed from administering a trust. These are the following:
In the current age of digital information and global business, many estates present complicated issues involving international law. A testator may execute a will in one country and eventually die in another. Different countries across the world may harbor assets. Different tax regulations, probate laws, and administrative regulations may apply in each of these countries.
I listen to hundreds of stories every year. There are dozens of cases for every element of vulnerability. The stories surrounding each element often provide a foundation for the failure of an estate plan that someone tried to make bulletproof.
The power and potency of California elder financial abuse litigation dramatically changed for the better a few years ago - to be exact January 1, 2014 - the date the Elder Abuse and Dependent Adult Civil Protection Act became effective. It is one thing to have a robust new statute to protect elders and their families and it is another thing to enforce it. The California Legislature noted at the time of the law's passing that "cases of abuse of . . . (infirm elderly persons and dependent adults) are seldom prosecuted as criminal matters, and few civil cases are brought in connection with this abuse." It's 2018, and while the law has changed and become more forceful, it is my experience that these cases are still "seldom prosecuted as criminal matters" and "few civil cases are brought in connection with this abuse."
Elder abuse has become a more prominent issue in the United States. As the World War II and Baby Boomer generations age, the American population boasts more senior citizens than ever. These seniors are driving up the demand for estate planning services, healthcare services, assisted living facilities, and in-home care. Unfortunately, reliance on these service providers can also expose a senior citizen to the risk of abuse.
California estate, trust and elder financial abuse litigation involves fights - it's that simple. These cases are contested - the lawsuits are emotional and hard fought. Wrongdoers don't give up ill-gotten gains easily. I know this because the vast majority of our law practice involves the representation of aggrieved heirs, beneficiaries and victims of elder financial abuse. We're currently litigating in more than twenty California counties.
When it comes to estate planning, a settlor, the maker of a trust, or testator, the maker of a will, seek certainty over uncertainty. They take the time to make an estate plan to diminish risks. Once this is accomplished is the estate plan impervious to challenge? In more colloquial terms - is their will and trust bulletproof. And, if not bulletproof, what will it take to make it bulletproof?
Class action lawsuits often result in settlements that remain in trust for the benefit of the class members. While this might seem the end of the story, it is far from it. The trustee is often invested with the discretion to determine settlement amounts for each class member and when to make their distributions. In some cases, the trustee even has the authority to invest trust funds to increase distributions (or to fund charitable causes pertinent to the settlement). This authority can affect the legal and financial rights of class members.
Recently American radio legend Jim Bohannon interviewed me on my book The Wolf at the Door: Undue Influence and Elder Financial Abuse. Financial exploitation of seniors poses a threat to our families and communities, and wrongdoers continue to prey on our elderly loved ones. Jim asked me a great question: What steps can we take to protect ourselves and our relatives from elder financial abuse? Here are some concrete measures I outlined: