Justice Oliver Wendell Holmes, Jr. said, "The life of the law has not been logic; it has been experience... The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics." I first discovered Holmes' writings in law school and I still like to go back to them to find perspective.
Elderly adults can be especially vulnerable to abuse and exploitation. That's why the California superior courts issue restraining orders - to help safeguard seniors from abuse. California residents 65 years and older can request a restraining order for the following reasons:
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: