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Where Agreements Won’t Work – A Word to the Wise Regarding Strict Wage and Hour Liability and Related Claims

This article was first published in Volume 29, Issue 2, 2023 of the California Trusts and Estates Quarterly, reprinted by permission.

I.      SYNOPSIS

Ed was a vibrant and healthy 85-year-old. One day, he decided to sign an advance healthcare directive providing that if his physical condition ever declined, he wished to remain in his home as long as possible with the help of live-in caregivers and other staff, as needed. Although his wife, Donna, and his daughter, Taylor, tried to assist Ed on their own, Ed’s growing needs became more than they could handle. They decided to bring in a live-in caregiver, Paula, who was a family friend. Paula was loosely hired by all three of them. Ed and his wife, Donna, were trustees of their family revocable trust. Taylor was Ed’s acting agent under his advance healthcare directive. No written employment agreement was signed by the parties. Paula was expected to work a “standard” workday, Monday through Friday, but was expected to be “on-call” during the evenings, weekends, and holidays. The family verbally agreed to pay Paula $500 per week, which was more than she made at her last job, so she felt she was adequately compensated. Moreover, over the years, Ed repeatedly promised her that after he passed, his estate would be sure to “take care of her.” Based on this promise, Paula selflessly cared for Ed until he sadly passed away more than ten years later. She did not pursue any other employment, despite having a number of great opportunities.

So, You’re the Trustee of an Estate…Now What?

An essential aspect of estate planning is the Trustee, who will be tasked to carry out wishes. This is such an important role that potential Trustees are usually asked if they would be willing to take on the responsibility before being named in a Trust. Occasionally, however, Trustees are surprised to find that they have been named. Regardless of how the role comes to you, the Trustor (sometimes called “Settlor,” “Grantor,” or “Trustmaker”) trusted you and believed you to be responsible. Selection as Trustee is an honor, but attorneys know that it can be quite an undertaking.

Governor Gavin Newsom Signs Sweeping Conservatorship Reform Bill

On September 30, 2021, Governor Gavin Newsom signed California AB 1194 amending numerous statutes pertaining to conservatorships.  The following are highlights:

Internet Posting of Fees of Licensed Professional Fiduciary:  On or before January 1, 2023, an individual licensed as a professional fiduciary (LPF) by the State of California, and who has an internet website, is required to post on their website a schedule or range of the LPF’s fees, including, but not limited to, the LPF’s hourly rate for services rendered.

Don’t Skimp on The Facts – Failure of Fiduciaries to Make Full Disclosure of Matters Set Forth in an Accounting May be Considered Fraud

In the recently published case of Hudson v. Foster, 2021 Cal.App. LEXIS 737, the Court of Appeal for the Second Appellate District, Division Five, determined that a former conservatee who discovered that certain transactions in his conservator’s previously approved accounting were falsely reported, was under no obligation to comb through records to verify the truth of the representations made by the conservator in the accounting.  The case is detailed with respect to the facts, but it puts fiduciaries on notice that full disclosure of material facts is required, and even slightly skewing the reporting of a transaction can be considered fraud.

Bringing Down the Hammer – California Appellate Court Upholds $1,000 Per Day Sanction For Failure To Timely File Accounting

As trusts and estates litigation counsel, we often have matters where a fiduciary, either as a trustee, conservator, personal representative, or agent under a power of attorney, fails to provide financial information when properly requested, or to provide an accounting if one is required under law.  The result is that the person seeking the accounting may be left with no alternative but to file a petition with the court for an order compelling the fiduciary to submit an accounting, most commonly by requesting that the accounting be filed within the court proceeding.

But I’m Too Young to Have a Will!

Planning for the end of one’s life, or potential incapacity, is probably something an individual in their 20’s, 30’s, or even 40’s does not want to contemplate.  Even those in their later years might find it a difficult topic to discuss.  However, there are several important reasons why one should strongly consider having a Will prepared, and perhaps other estate planning documents, such as an Advance Health Care Directive or Durable Power of Attorney for Financial Management, despite their being a member of Generation X, Y, or Z.  These scenarios are based on personal experience with cases handled by me and which could have been avoided with a bit of planning.

Election Results – What Could They Mean to You? Tax Updates for a Biden Presidency

2020 has been a year to remember for so many reasons: a global pandemic, the race to a vaccine, and an election with record-breaking voter turnout.

President-elect Joe Biden and his running mate Vice President-elect Kamala Harris campaigned on a platform of detailed proposals, including changes to certain areas of tax law. Here are some reforms that we might see during a Biden presidency, and the effects those changes might have: