ATTORNEY NEWSLETTER
New Laws Protect Seniors From Elder Abuse, Streamline Probate, And Prohibit Exploitation of Seniors in Conservatorships
A number of new laws directly affecting seniors took effect in California on January 1, 2020. Those measures impact estate planning, protection from elder abuse, probate proceedings and conservatorships. The California estate planning and elder abuse attorneys at Evans Law Firm, Inc. provide estate planning services for clients of all ages and represent seniors and their families in cases involving financial elder abuse, nursing home abuse, or investment fraud. If you or a loved one has been a victim of financial elder abuse or exploitation of a senior in California, contact the Evans Law Firm, Inc. trusts and financial elder abuse attorneys at (415) 441-8669 and we can help. If you need our estate planning services, please visit the “Estate Planning” tab under our Practice Areas dropdown menu.
Elder Abuse
“Abandonment” Now Considered Elder Abuse – Abandonment of Elders and Dependent Adults (SB 314)
SB 314 expands the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) to include acts of abandonment, in addition to acts of physical abuse and neglect, as a basis for awarding enhanced remedies to victims of such abuse under Welfare and Institutions Code Section 15657. Abandonment is defined in Welfare and Institutions Code Section 15610.05. We have written elsewhere on our website about this important addition to the laws protecting seniors from abuse and you can learn more at https://www.evanslaw.com/marin-county-and-california-elder-abuse-attorneys-new-protections-for-senior-victims-of-abandonment/.
Broker-Dealers and Investment Advisors Now Mandated Reporters – Financial Abuse of Elders and Dependent Adults (SB 496)
SB 496 expands the categories of mandated reporters of suspected financial elder abuse of an elder to include “broker-dealers” and “investment advisors” through the addition of Section 15630.2 to the Welfare and Institutions Code. “Broker-dealer” and “investment advisor” are defined by Corporations Code Section 25004 and 25009, respectively. As with other categories of mandated reporters, broker-dealers and investment advisors who observe or have knowledge of an incident related to the services the professional is providing and that the professional reasonably believes or suspects is financial abuse, are required to immediately report the abuse as specified. The mandated reporters can delay a transaction and/or refuse to honor a power of attorney under specified circumstances.
Mandated reporters acting in good faith and with reasonable care cannot be held civilly liable for reporting. Failure to report where required can result in civil penalties not to exceed $1,000 unless the failure to report is willful, in which case penalties can be as high as $5,000.
Undue Influence
At-Death Transfers Between Spouses (AB 327)
Under existing Family Code Section 721, when spouses enter into a transaction with each other, they are subject to the general rule governing fiduciary relationships, including a duty of the highest good faith and fair dealing, and a spouse is prohibited from taking unfair advantage of the other. These transactions are subject to the same rights and duties of nonmarital business partners, and include a right to certain disclosures and accountings. Excluded from these provisions are situations involving waivers of spousal rights and duties related to the administration of a trust. AB 327 adds Probate Code Section 21385, which provides thatan at-death transfer between spouses by will, revocable trust, beneficiary form, or other instrument is not subject to Family Code Section 721 or any presumptions of undue influence created by that section. The bill clarifies that its provisions do not limit the application of other statutory or common law presumptions of undue influence that may apply to an at-death transfer between spouses. For a detailed look at the meaning of “undue influence” under California law see more here: https://www.evanslaw.com/san-francisco-and-california-elder-abuse-attorney-undue-influence-and-financial-elder-abuse-2/.
Donative Transfers to Caregivers (AB 328)
AB 328 closes a loophole that allowed caregivers to obtain the assets of their elderly or mentally incapacitated clients by marrying them. This is an extremely important additional protection for seniors. The elder litigators at Evans Law Firm have seen caregivers abuse seniors through marriage. You can read more about this change in the law on our website at: https://www.evanslaw.com/marin-county-and-california-financial-elder-abuse-attorney-dangers-when-caregivers-marry-their-patients/.
- The new law amends Probate Code Section 21380 (the Prohibited Transferee Statute) to add a provision that a care custodian that marries an elder or dependent adult during the service period or within 90 days after services terminated, is presumed to have engaged in undue influence if the instrument was executed less than six months after the marriage occurred. The presumption is rebuttable. This amendment also applies to domestic partnerships or cohabitation.
- AB 328 also amends Probate Code Section 21611 (the omitted spouse statute) to protect elders or dependent adults in situations where the care custodian does not procure a new estate plan but merely relies on the omitted spouse statute to obtain one-third to one-half of the elder/dependent adult’s separate property upon death. If the care custodian marries the elder/dependent adult during the service period or within 90 days after those services ended, and the decedent dies less than six months after the marriage commenced, then a rebuttable presumption of undue influence arises.
The presumption in both Probate Code Sections 21380 and 21611 must be disproven by clear and convincing evidence.
Estate Administration
Increase in Maximum Dollar Amount for Disposition of Estate Without Administration (Small-Estate Affidavits) (AB 473)
For the first time since 2011, the maximum amounts for: 1) small estates to qualify for disposition without a full probate administration through a “small-estate affidavit,” and 2) a surviving spouse to collect unpaid compensation from the decedent-spouse’s employer have been increased by AB 473. AB 473 also makes several other modifications to the small-estate procedure.
AB 473 changes the small estate provisions of the Probate Code as follows:
- Small Estate Set-Aside: Probate Code Sections 6602 and 6609, which allow the decedent’s spouse and/or minor children to petition the court to set a portion of the decedent’s estate aside for them, are amended to increase the set-aside amount from $20,000 to $85,900.
- Affidavit Procedure for Collection or Transfer of Personal Property: Existing law allows a decedent’s successor to collect certain personal property with an affidavit and without a full probate administration when the gross value of the decedent’s real and personal property is below a specified dollar amount. Probate Code Section 13100 is amended to increase the specified dollar amount from $150,000 to $166,250.
- Affidavit Procedure for Real Property of Small Value: Existing law allows a decedent’s successor to record a court certified affidavit to transfer title to the decedent’s real property to the successor if the gross value of all real property in the decedent’s estate located in California is below a specified maximum dollar amount. Section 13200 is amended to increase the specified dollar amount from $50,000 to $55,425.
- Collection by Affidavit of Compensation Owed Deceased Spouse: Existing law allows a decedent’s surviving spouse to collect salary or other compensation owed by an employer for personal services of the deceased spouse. Probate Code Section 13600 is amended to increase the amount of unpaid compensation that can be transferred to a surviving spouse from $15,000 to $16,625.
- Property Excluded in Determining Value of Decedent’s Estate: Probate Code Section 13050 provides a rule for calculating the value of the decedent’s property, which is used to determine the availability of small estate affidavit procedures described above. Previously, the law excluded from that calculation up to $15,000 of unpaid compensation owed to the decedent. Probate Code Section 13050(c)(2) is amended to increase the exclusion of unpaid compensation owed to the decedent from $15,000 to $16,625.
This law also requires the Judicial Council to adjust the dollar amounts for these thresholds based on the Consumer Price Index, on April 1, 2022, and at each three-year interval ending on April 1 thereafter.
Guardianships/Conservatorships
Compensation of Guardians and Conservators and New Limits for Conservators Selling the Residence of Conservatee (SB 303)
SB 303 amends Probate Code Sections 2640 and 2641 to prohibit guardians, conservators and their attorneys from receiving compensation from any funds of the ward or conservatee having their source in a government benefits program, unless deemed necessary to sustain the support and maintenance of the ward or conservatee up to the maximum permitted by federal laws and regulations. This law also adds Probate Code Section 2541.5, which loosens the evidence standard for a conservator to be granted authority to remove a conservatee from their personal residence. The evidence standard has been changed to a preponderance of the evidence where previously it was a clear and convincing standard of evidence.
Lastly, SB 303 amends Probate Code Sections 2591 and 2591.5 to require a conservator seeking to sell the conservatee’s personal residence to now report any capital gains income and tax consequences and impact on access to governmental benefits.
Contact Us
If you or a loved one needs estate planning services or has been a victim of financial elder abuse anywhere in the State of California or, contact Ingrid M. Evans and the other Evans Law Firm trusts and financial elder abuse attorneys at (415) 441-8669, or by email at <a href=”mailto:info@evanslaw.com”>info@evanslaw.com</a>. Our attorneys have experience with complex securities cases, arbitrations, and mediations; and complicated financial contracts and large insurance companies. We can help guide your case through a jury trial or toward an equitable settlement. We also handle cases involving financial elder abuse, qui tam and whistleblower cases, whole life insurance and universal life insurance, and indexed, variable, and fixed annuities.
