Despite rumors and numerous alleged sightings, Elvis Presley, the King of Rock N Roll, died in 1977. At the time of his death, Elvis' only daughter, Lisa Marie, was only 9 years old, but she became the heir to his estate, worth in 1977 a relatively modest $5 million. It would have been much more but for Elvis' penchant for bad business deals and a life of excess.

According to Elvis' will, Lisa Marie's inheritance was kept in a Trust, known as the Promenade Trust, which through his ex-wife Priscilla's stewardship grew to an estimated $100+ million when Lisa Marie gained control.

In the ensuing 12 years, the Promenade Trust owned Graceland as well as the royalty stream of Elvis Presley Enterprises. By then, Lisa Marie had been married and divorced three times, including two short-lived marriages to Michael Jackson and Nicolas Cage. Like her father, she was also known to be a free-spender, reportedly incurring debts in excess of $20 million.

In order to eliminate her debt, Lisa Marie's business manager at the time, Barry Siegel, sold 85% of her share in Elvis Presley Enterprises. That transaction reportedly netted her $40 million, even after all her debts were eliminated. What became of the money? Apparently, her manager invested at least part of it in Core Entertainment, the company behind American Idol, which filed for Chapter 11 bankruptcy in 2016.

As a result of some questionable business decisions, by 2018 the value of Lisa Marie's inheritance reportedly dwindled to $14,000 in cash and $500,000 in credit card debt. At that point, she fired her manager and sued him for breach of trust, negligence and constructive fraud, for mismanaging and squandering her $100 million fortune. That lawsuit, filed in 2018, remains in litigation and may take years to resolve. Siegel, for his part, has counter-sued Presley for $800,000 for non-payment.

Whether the inheritance from Elvis Presley has now been spent or squandered, and whether Lisa Marie is destitute or not, are questions that have recently taken on a slightly different significance thanks to the disintegration of Lisa Marie's fourth marriage to musician Michael Lockwood in 2016.

The two married in 2006, and Lockwood signed a post-nuptial agreement in 2007. Because a court ruled that Lisa Marie was not required to pay for spousal support, as a result of that agreement, that could have been the end of the issue. But Lockwood's attorneys have argued that Lisa Marie has "not disclosed her assets or their values" in their divorce proceedings. Although Lockwood is not entitled to support, he apparently hopes to lay claim to some of his ex-wife's assets. Are those assets now worthless or are they worth millions? It seems likely that courts and judges will eventually have to sort those issues out.

The takeaway from the continuing legal battles over the Elvis Presley estate is clear: just like a share of stock, the value of inheritance can go up and down over the years. Considering he was a profligate rock star, Elvis provided quite well for his family, and thanks to prudent decision-making, the value of his inheritance increased dramatically over the years since his death.

The key to maintaining the value of an inheritance is both in good management but also especially in establishing a system whereby heirs don't become their own worst enemies through reckless spending or ill-advised investments. To do that requires some sophisticated, professional, and forward-thinking estate planning, which is something I always recommend to Hackard Law's clients.

Before you go, please let me know if you'd like to receive a free copy of my first book, The Wolf at the Door, or my new book, Alzheimer's, Widowed Stepmothers & Estate Crimes. Just send your address in an email to me at hackard@hackardlaw.com, and I'll be glad to put one in the mail.

Trustees are generally authorized by the terms of the trust or by statute to distribute trust assets, in kind, in cash, or both.

When the trust document does not specify a mode of distribution, then it's time to make a reasonable interpretation considered in the light of all the circumstances. This, of course, can be particularly challenging when there are several beneficiaries.

Trust document review can be a little like reading medical records. Unless you are familiar with the terms used in the documents or trained in the field, particular provisions can be obtuse, obscure and confusing.

On the other hand, some trust documents can be very clear. They may have an Article or Section with a heading such as "Distribution of Income and Principal" set apart from all other headings. That helps - we can go right to that Article or Section.

Trust documents with an Article named "Distribution" are also easy to access. It can get a little more complicated when separate sections address "Distributions of Principal and Income" during the life of the settlor or after the settlor's death. It's also important to look for the section that addresses "Distribution of Remainder (or Residue) on Termination of Trust."

Sometimes a trust has a table of contents. This is also useful. A trust with a table of contents might provide a little greater specificity in titling than a more generic title like "Distribution."

The table might address specific distributions of real and personal (tangible) property. It is also likely to cover the residuary or remainder distribution. Whether distributions of trust assets, in kind, in cash, is also likely to be addressed.

We review a lot of trust documents - usually as a result of some controversy over distribution. We hope that his little explanation helps beneficiaries to identify the section in the trust that describes how assets are to be distributed - or maybe not distributed - to them.

At Hackard Law we represent beneficiaries who have been excluded from distribution of trust assets or unfairly treated by fiduciaries. We take substantial cases where we think that we can make a significant difference and there is a wrongdoer who can be made financially accountable for their wrongdoing or breach of duty.

We focus our geographic reach to California's major urban areas, including Los Angeles, Orange, Santa Clara, San Mateo, Alameda, Contra Costa and Sacramento Counties.

If you are a beneficiary and you want to talk about your rights, call us at Hackard Law: (916) 313-3030. We'll be happy to hear from you.

California "licensing is required for non-family member professional fiduciaries who serve as...trustees for at least four non-related trustors."

"The Professional Fiduciaries Bureau...in the Department of Consumer Affairs...is responsible for the licensure and regulation of non-family member professional fiduciaries, including conservators, guardians, trustees, and agents under durable power of attorney...Professional fiduciaries are responsible for the property or well-being of their clients and coordinate overall care for their client's medical and/or financial needs. A professional fiduciary is not necessarily an expert in all areas and may hire other persons to handle duties for the trust or estate. However, as the ultimate decision-maker, the professional fiduciary has the responsibility to ensure appropriate and adequate services are provided for their client."

Statistics on Fiduciary Complaints

California currently has over 1000 licensed professional fiduciaries. The public filed 104 complaints against licensed fiduciaries in Fiscal Year 2016/2017. Of these complaints filed, the Bureau's records indicate that one complaint resulted in license revocation, one complaint in voluntary surrender and one complaint in probation. The bureau assessed only $4000 in fines for the referenced Fiscal Year and did not refer one person for criminal prosecution.

In other words, it looks like, at best, a consumer complaint has a 3% chance of meriting any kind of disciplinary action against a California professional fiduciary. Is this because 97% of California consumers who make complaints lack a reasonable basis for their complaint?

Are they misguided? Ill-informed? Or is it that California for-profit professional fiduciaries epitomize professionalism and adherence to a code of ethics? Are they near-perfect in all that they do? Are they always looking out for the consumer? Or, as some consumer advocates believe, is there a significant and glaring lack of oversight of professional fiduciaries? If so, this prima facie lack of oversight deserves legislative review.

How to File a Complaint Against a California Professional Fiduciary

For those who want to pursue a complaint against a California licensed fiduciary, even knowing that there is a 97% chance that it will be disregarded, there is a process to follow. Consumers can access the online list of California Professional Fiduciaries licensed by the State of California Department of Consumer Affairs at https://www.dca.ca.gov/consumers/public_info/index.shtml .

Complaints against Professional Fiduciaries can be made by written complaint or filed online. Whether in written form or filed online, the consumer, in the case of a trust - a beneficiary - needs to briefly describe their complaint. Consumers do not need an attorney to file a complaint.

Given the fact that beneficiaries are generally not trained in law enforcement, accounting, trust law or fiduciary administration, describing the wrong that they are experiencing can be a daunting task. This is certainly proven by the bureau's woeful 3% record in complaint enforcement.

The General Online Complaint Form recites that "The Department of Consumer Affairs is here to help Californians be careful consumers and to protect them from unscrupulous and unqualified individuals." So, it makes sense for a consumer to try to describe the professional fiduciary's wrongdoing within the context of the Department of Consumer Affairs' expressed mission.

Fiduciary Duties to Beneficiaries

Webster's Third New International Dictionary Unabridged defines "unscrupulous" as "not scrupulous: UNPRINCIPLED." Webster's defines "scrupulous" as "having moral integrity: PRINCIPLED" ... carefully adhering to ethical standards: CONSCIENTIOUS...." Webster's defines "unqualified" as "not having requisite qualifications ... (and) not limited by sensible or other qualities or by sensible experience."

Beneficiaries, using the elements of the Department of Consumer Affair's mission statement, expect California professional fiduciaries to be principled, scrupulous, adhering to ethical standards, conscientious, qualified, sensible, and using sensible experience in performing their duties.

So, how should a licensed California professional fiduciary serving as a trustee treat the trust beneficiaries? Let's start with the clearest statement of the law. California Probate Code Section 16002 directs that "The trustee has a duty to administer the trust solely in the interest of the beneficiaries." It doesn't say solely in the interest of the trustee. Or the for-profit professional fiduciary. Or the professional fiduciary's lawyer. It says: "solely in the interest of the beneficiaries."

The enforcement of this core principle should surely be preeminent in the performance of the Department of Consumer Affair's mission. There should be greater legislative oversight to be sure that this principle holds preeminence. Sadly, many fiduciaries ignore, or subordinate the "solely in the interest of the beneficiaries" principle to a primary concern of property over people.

There are too many professional fiduciaries who view their duty to provide for the well-being of the beneficiaries as subservient to a generally expressed desire for "marshalling assets." I guess that it's easier to collect a lawnmower and a car than making sure the beneficiary has health insurance, a decent place to live, and provisions for care. A decedent's dishes are prioritized over a decedent's beneficiary, his disabled daughter. A settlor's son is disregarded and turned away while the professional fiduciary focuses on spending trust money on attorneys to defend himself against complaints of wrongdoing.

Let's get back to what the Professional Fiduciaries Bureau says about what it does. What it should be enforcing. What is sensible. What is principled. And that is the bureau should enforce the rule that "the ultimate decision-maker, the professional fiduciary has the responsibility to ensure appropriate and adequate services are provided for their client."

The Beneficiary Comes First

For many trusts, this means that the professional fiduciary is to provide for the health, education, maintenance and support for the beneficiary. This is often referred to as the "HEMS" ascertainable standards. Too many California professional fiduciaries ignore this. Their failure is a failure to ensure appropriate and adequate services for their client, the beneficiary.

It is time that the California Professional Fiduciaries Bureau enforce the standard. Licensing should mean something more than a for-profit fiduciary's ability to charge and get paid by a trust set up for the trust maker's loved ones, not the paid trustee.

At Hackard Law we regularly enforce trust beneficiaries' rights. We focus our practice in California's largest urban areas. We take substantial cases where we think that we can make a significant difference and there is a wrongdoer who can be made financially accountable for their wrongdoing or breach of duty.

I'll add - I wish that we didn't have to take cases against trustees who are breaching their duty to the trust beneficiaries. It costs the beneficiaries money. It has a human cost in their continuing grief.

We would much rather that the trustees did their job, that they truly be responsible for the well-being of their clients (the trust beneficiaries) and coordinate overall care for their client's medical and/or financial needs. This is a better result. This is what I hope the California Professional Fiduciaries Bureau will enforce.

For those who would like to tell us their story about fiduciary wrongdoing, call us at 916 313-3030. We'll be happy to hear what you have to say.

I'll start with a disclaimer. We represent beneficiaries who have been abused by banks, trust companies and professional fiduciaries.

My take on fiduciary wrongdoing is colored by a lot of experience in civilly prosecuting trust wrongdoers. It's that simple. I don't see the cases where the fiduciary is doing his or her duties well. I see the cases that range from the boneheaded to the botched. That's where I get my perspective.

So, we started with a title that is really a question: What are professional fiduciaries' priorities? Property or people? I've seen too many trust cases where the professional fiduciary gave unequivocal priority to property over people. The property being the trust assets and the people being the trust beneficiaries.

The way that some fiduciaries act, you would think that there were absolutely no important considerations in trust administration other than trust assets. Trust beneficiaries are generally grieving, and a clueless trustee's focus on the gathering of trust assets over caring for the beneficiaries is insulting, degrading and worthy of reproach.

So, what's a professional fiduciary's number one priority in administering a trust? Is it to make sure they get paid? Is it to "marshal assets" to increase the efficiency of the trust while coldly ignoring and disregarding beneficiary needs? Or is it to maximize the profitability of trust assets for the trustee? Despite what some might think, the answer is actually none of the above.

The top duty of any fiduciary or trustee is simple: to manage the trust solely in the interest of the beneficiaries. That comes straight from California's Probate Code Section 16002, with emphasis on the word solely. Not for the trustee to fatten their own wallet, not to distribute a bare minimum, and not to pay yourself more than the beneficiary. Fiduciary methods that privilege profits over people are not only morally indefensible - they also violate the law.

The well-being of the beneficiary takes precedence over whatever an institutional or professional trustee might think their main mission is. In practice, this translates to an active and continuing concern for the welfare of the beneficiary, what we know as the HEMS standard: health, education, maintenance and support. The primary purpose of trust funds and assets is to serve the designated beneficiaries of that trust.

When fiduciaries neglect their primary professional duty, it's the beneficiary who suffers. Plenty of times we've seen a bad trustee act as if they're untouchable - they're confident that no one will hold them responsible. But that's where they're wrong. Beneficiaries can fight back - there are experienced trust litigation attorneys who take on for-profit fiduciaries and protect the rights of their clients. Trustee removal, trust accountings, administrative complaints, and, if appropriate, mediated resolutions are all options for legal action.

At Hackard Law we are dedicated to enforcing beneficiary rights. We represent clients in California's largest urban areas, including in Los Angeles, Orange, Santa Clara, San Mateo, Alameda, Contra Costa and Sacramento. We take substantial cases where we think that we can make a significant difference and there is a wrongdoer who can be made financially accountable for their wrongdoing or breach of duty.

If you've been wronged by a fiduciary and want to talk about it, call us at 916-313-3030. We want to hear your story.

Trust litigation lawyers, by default, become frequent advocates for the protection of trust beneficiaries and the assertion of their clients' rights. Ongoing complaints regarding the systemic overreach of banks, trust companies and California licensed professional fiduciaries acting as trustees are made at administrative levels and litigated, for the most part, at the probate court level.

The growing conservatorship reform movement is animated by the all too frequent financial exploitation, physical and emotional abuse visited upon our nation's most vulnerable citizens by conservators and guardians. This reform movement is worthy of its growing public attention. There's no dearth of stories and examples of abuse. There is a dearth of institutional advocates. And individual advocates are limited by time, money and geographic reach.

Still, the stories must be told. And as they are told, with time, the spotlight will grow brighter in the legal, non-legal, media, public policy, and legislative fields. The need is growing greater for skilled advocates to advance the cause of protecting the vulnerable.

I've made personal efforts in this area by writing two books about elder financial abuse: The Wolf at the Door and Alzheimer's, Widowed Stepmothers and Estate Crimes. Of course, far more needs to be said. Trustee abuse of beneficiaries may occur by the actions of unlicensed fiduciaries, licensed fiduciaries, banks or trust companies.

I've written extensively about trust beneficiary rights. These rights are important and critical to a functioning estate system. It is one thing when they are violated by unlicensed and unskilled fiduciaries. It is quite another when the violations are those of a trust company or a licensed fiduciary.

California licensed fiduciaries often assume the paid roles as trustees, guardians, estate executors, agents under a power of attorney and conservators for those who are mentally or physically incapacitated. They are licensed to serve California's most vulnerable population. The system doesn't always work.

The Professional Fiduciary Association of California identifies the obligation of a Professional Fiduciary:

"The responsibility is unique, essential, and, often noble in nature. A fiduciary's role is not merely that of business manager, decision-maker, or guardian. It is also a nurturing bond of trust, concern, and attentive caregiving. A fiduciary seeks to support mental and emotional well-being; reduce the stress of changing circumstances or unexpected events; and, most importantly, help each client, and their families, enjoy a fulfilling life."

These are fine and colorful words. Some fiduciaries take them seriously and apply them in everyday life for the people that they serve. Others don't.

And it's my job as an advocate to expose such abuse. While not naming names or locations, I want to describe a few cases where we're asking questions whether these California trustees and their attorneys are meeting the "noble" purposes described by the Fiduciary Association.

A father, desiring to set aside assets to benefit his retirement age daughter, creates a trust directing the successor trustee, appointed at his death, to provide income and principal for her well-being. Her well-being is within a "health, education, maintenance and support standard."

In this case, the trustee is "a professional corporate trustee." It advertises itself as "a trusted source," "a preserver of family harmony," with "high touch, high quality" services.

The father dies and the trusted source, and preserver of family harmony trust company takes over as trustee. Using its "high touch, high quality" services, the "Trust Committee" of the professional corporate trustee meets and approves a distribution of $2400 per month to the elderly sole beneficiary.

The trust beneficiary lives in low-income housing. Documents provided to the beneficiary show trust liquid assets in excess of $2,000,000. Money paid to the corporate trustee for trustee "fees and expenses" exceed disbursements to the beneficiary.

So, let's step back a minute. I doubt that the beneficiary's father ever read the corporate trustee's website. But, somebody did. Maybe the trust attorney. Are the trustee's actions preserving family harmony? Is this trustee really "a trusted source?" If so, a trusted source for what? Keeping an elderly beneficiary in low-income housing while there is more than $2 million in her trust?

Think about it - if her father could come back to life, would he say that this is the result that he wanted? That the corporate trustee really is doing "high touch, high quality" service? If this is really so, then the corporate trustee should advertise just what they're doing for this elderly beneficiary. So, if California Professional Fiduciaries are a noble lot according to their association, are these actions noble?

A sick dying man, an octogenarian, is assisted by his two late middle age children, in the last months of his life. He creates a trust for the benefit of these two children. Much like the trust created for the elderly woman, it has a "health, education, maintenance and support standard." The trust attorney, in a communication to her dying client, calls this a "General Needs Trust."

The trust attorney identifies a California Professional Fiduciary to be the successor trustee after the man dies. The man dies in mid-July 2019. It appears that his trust has more than $7 million in assets.

So, let's remind us what a California Professional Fiduciary does. The Association tells us that

"a fiduciary's role is not merely that of business manager, decision-maker, or guardian. It is also a nurturing bond of trust, concern, and attentive caregiving. A fiduciary seeks to support mental and emotional well-being; reduce the stress of changing circumstances or unexpected events; and, most importantly, help each client, and their families, enjoy a fulfilling life."

Okay. I'll accept what the Association says. Now let's see how this particular California Professional Fiduciary applies it. The trustee's attorney sends a notice to the decedent's children approximately one month after the decedent's death. The notice includes a copy of the trust.

Three days after the trust notice, the successor trustee serves a "30-Day Notice to Quit and Vacate Premises" on the decedent's two children. Their father has been dead 40 days. The California Private Fiduciary signs the notice as the "owner or managing agent" of the father's trust property.

The children are informed that they must "VACATE THE PREMISES and surrender full possession to the owner/landlord" by September 25, 2019. They are warned that the California Professional Fiduciary will use "court proceedings against you ... (which) could also result in a money judgment being entered against you for the balances due, plus costs and disbursements of suit, and attorney's fees ... allowed by applicable law."

The children, of course, have no tenancy agreement. They're not paying rent. They were in the premises assisting their father in his last months of life. Does it appear that this licensed trustee sees any important considerations outside the legal aspects?

The children are grieving. The prospect of moving is challenging. They meet with the trustee.

They're told that they will be lucky if they each receive $24,000 each year in beneficiary benefits. $24,000 per year from a $7 million trust to benefit them.

This California Professional Fiduciary will be given the opportunity to explain how, in the words of the Association, these actions are "a nurturing bond of trust, concern and attentive care-giving." The trustee can also explain how these actions "support mental and emotional well-being, reduce the stress of changing circumstances or unexpected events; and, most importantly, help each client, and their families, enjoy a fulfilling life."

The children sought a mediation with the trustee. The trustee's attorney indicates that the trustee will not mediate until the two children vacate their father's property. The trustee will move forward with eviction proceedings. The attorney adds that the trustee "is willing to provide (the beneficiaries) with a reasonable monthly distribution from the time they vacate and the completion of the mediation." The mediation was cancelled by the trustee.

The actions of the corporate trustee and the California Professional Fiduciary remind me of the words of Abraham Lincoln with regard to slavery: "If slavery is not wrong, nothing is wrong." If a trustee, whether corporate or for-profit licensed professional, can treat beneficiaries the way that these two have, then they can do anything.

Millions of dollars set aside for the benefit of children beneficiaries. One beneficiary living in low income housing, the others still in their father's house. One beneficiary given income far below the poverty level and the others no income whatsoever.

If a trustee is to administer a trust "solely" in the interest of beneficiaries, how are these actions in any interest of the beneficiaries? Let alone sole interests.

I admire the efforts of Dr. Sam Sugar of Americans Against Abusive Probate Guardianship (AAAPG.net); the advocacy of Rick Black of the Center for Estate Administration Reform (CEAR); the activities of Spectrum Institute's Disability and Guardianship Project; and the courage of Carole Herman of Foundation Aiding the Elderly (FATE) to bring a bright spotlight on fiduciary abuses and elder abuse.

We, of course, have a different role. We are lawyers who represent aggrieved beneficiaries and elders. We regularly enforce trust beneficiaries' rights. We focus our practice in California's largest urban areas.

We take substantial cases where we think that we can make a significant difference and there is a wrongdoer who can be made financially accountable for their wrongdoing or breach of duty. I'm grateful that fiduciary abuses are more and more coming to light.

If you'd like to speak with us about your particular case of fiduciary abuse, call us at Hackard Law (916) 313-3030. We'll be happy to hear from you.

Inheritance can be baffling. If inheritance means to receive property upon the death of an owner either by will, trust, contract or operation of law by the heir to estate, rights, and liabilities of a decedent, the definition itself leaves enormous areas for questioning.

We understand that estate and trust law can seem obscure. People need help. If they seek understanding Hackard Law has more than 500 videos on YouTube that explore multiple parts of estate administration, litigation, probate, trust and elder financial abuse litigation.

• See: https://www.youtube.com/channel/UCJvBKa4-nqsRa8BnXPbEycw.
• The text for the videos is available at Hackard Law's blog, located at https://www.hackardlaw.com/blog/.

People with specific inquiries can call our Los Angeles number at (213) 357-5200 or our Northern California number at (916) 313-3000 and speak with a Hackard Law representative. These representatives can direct calls to Hackard Law attorneys as appropriate.

Hackard Law does estate, trust, probate and elder financial abuse litigation in Northern and Southern California's largest urban areas. These areas include Los Angeles, Orange, Santa Clara, San Mateo, Alameda, Contra Costa and Sacramento Counties.

We take substantial cases where we think that we can make a significant difference and there is a wrongdoer who can be made financially accountable for their wrongdoing or breach of duty. You can call us today, and we'll be glad to hear your story.

Inheritance can be confusing. People may inherit assets by wills, trusts, insurance policies, intestacy (no will), paid on death accounts, joint tenancy and a number of other legal devices.

Getting questions answered can be frustrating. Do you seek out any attorney and call them? Meet with them?

Do you know enough to ask the right questions? Do they?

At Hackard Law we've posted over 500 blog articles that answer all kinds of questions related to wills, trusts and estates. We also have over 500 videos posted to YouTube.

• You can access the blog posts at https://www.hackardlaw.com/blog/.
• You can access Hackard Law's YouTube channel at https://www.youtube.com/channel/UCJvBKa4-nqsRa8BnXPbEycw.

We post these for public use. We hope that they are helpful. While they are not direct legal advice, we've found that they are helpful for heirs and beneficiaries to understand general issues related to their inheritance.

Hackard Law litigates estate, trust, probate and elder financial abuse cases in California's largest urban areas including include Los Angeles, Orange, Santa Clara, San Mateo, Alameda, Contra Costa and Sacramento Counties.

If you'd like to speak with us about your case, call us at (916) 313-3030.

Isaiah, the prophet and royal advisor, some 2800 years ago, set forth the foundations for protecting the most defenseless members of society:

"Learn to do good, seek justice, correct oppression, bring justice to the fatherless, plead the widow's cause."

While California legislators may not have been thinking about Isaiah when they enacted the Elder Abuse Act, the Act's principles surely mirror the goal of protecting our society's most defenseless. The Act protects elders residing in California, 65 years of age or older. They are to be protected against "[p]physical abuse, neglect, abandonment, isolation, abduction, or other treatment [of an elder] with resulting physical harm or mental suffering."

"Mental suffering" is defined as

"fear, agitation, confusion, severe depression, or other forms of serious emotional distress that is brought about by forms of intimidating behavior, threats, harassment, or by deceptive acts performed or false or misleading statements made with malicious intent to agitate, confuse, frighten, or cause severe depression or serious emotional distress of the elder..."

Elders subject to such abuse or suffering may petition the California Superior Court for an order "enjoining a party from abusing, intimidating, ...threatening, ...harassing, ... or disturbing the peace of, the petitioner." The petitioner has the burden to prove a past act of elder abuse by preponderance of evidence.

A 2019 California court decision makes clear that "treatment" of an elder that is neither physical abuse, neglect, abandonment, isolation nor abduction, can constitute elder abuse if the "treatment" results in "physical harm or mental suffering" even if the alleged abuser has no responsibility to care for the elder and no control of the elder's property.

The case arose out of a neighbor's "vicious behavior" towards her 81-year-old elderly neighbor. The offending abuser and her boyfriend harassed and intimidated the elder, threatened her, destroyed her property and trespassed on her property. The elder also reported that the boyfriend ordered his dogs to "kill her." Understandably, the elderly woman suffered great mental suffering.

So when we see elders that are being abused, what should we do? Family members, friends, neighbors, attorneys and other professionals can contend for the rights of elders.

If the elders cannot defend themselves, they are subject to oppression. Isaiah's advice is a good reminder - relieve the oppressed, right the wrongs and deliver the defenseless out of the hands of the oppressors. It takes all of us to make up a just and merciful society.

Ancient words, common wisdom and new and emerging legal protections for elders can help us accomplish this goal.

Rick Black, Executive Director - CEAR, is one of America's leading activists and commentators spotlighting the abusive practices in the conservatorship, guardianship and trust industries.

Rick leadership at CEAR (Center for Estate Administration Reform) provides strong national advocacy for legal reformation of fiduciary abuse at the state and federal levels.

Rick's efforts include strong support for the legislative reform set out in the proposed Guardianship Accountability Act in bills pending in both the U.S. Senate and the House of Representatives.

Among the bills' initiatives are a requirement that the federal Elder Justice Coordinating Council create a National Online Resource Center on Guardianship for the publication of resources and data relating to court-determined adult guardianships.

In California, a legal guardianship for an adult is called a conservatorship.

The basic rules are the same as to what other states call adult guardianships.

Whether called a plenary, full, general or limited conservatorship or guardianship, Rick points out that they "fundamentally remove all rights from an individual and transfer all powers over an individual, by court order, of their estate and person to a third party."

Rick has some suggestions for changes to the pending bills that will help provide greater transparency to the entire process.

CEAR urges that the federal classification system should identify and/or classify conservatorships/guardianship as voluntary versus involuntary.

The conservators/guardians should be identified as professionals (for fees) versus nonprofessionals.

Groups like CEAR are in a collective effort to reform the system that has allowed some fraudulent guardians or conservators to target trustees or beneficiaries of trusts for conservators/guardians to intercept the trust assets and liquidate them for the benefit of people other than the ward or conservatee.

Family members are often shocked when they see family assets rapidly dwindling under huge guardianship/conservatorship expenses.

Challenges to these guardians/conservators are expensive and procedurally challenging.

Hats off to Rick Black and the U.S. Senators and Congress members who are working to correct abuses rampant in our conservatorship/guardianship system.

I must note that it is rare that we at Hackard Law take conservatorship or guardianship cases.

This is a relatively narrow area of law that others focus on.

At Hackard Law we focus on representing clients in trust, estate, probate and elder financial abuse cases.

We regularly represent international, national and California clients in California's largest urban probate and civil courts, including Los Angeles, Orange, Santa Clara, San Mateo, Alameda, Contra Costa and Sacramento Counties.

Our efforts are directed to taking substantial cases where we think that we can make a significant difference and there is a wrongdoer who can be made financially accountable for their wrongdoing or breach of duty.

If you would like to speak with us about your case, call us at Hackard Law - 916 313-3030.

While there are a variety of grounds and reasons for contesting a will in California probate courts, there is an important precondition to a court challenge: standing to sue.

In essence, you must have a property right affected by the will - in the words of the law - you must be an "interested person."

California Probate Code Section 48 defines an "interested person" as an "heir, devisee, child, spouse, creditor, beneficiary, and any other person having a property right in or claim against a trust estate or the estate of a decedent which may be affected by the proceeding." In the words of well-known trust and estate litigation Super Lawyer, Denise Chambliss:

"It is black letter law that beneficiaries of an earlier will, whose interests are impaired or defeated by a later will offered for probate, have standing under Section 48 to contest a later will."

And, what happens if the "interested person" succeeds in the will contest? This is an important concept - the concept of Pyrrhic Victory. This is a victory in which you win the battle but lose the war.

It is important to remember that a will contest victory changes the estate distribution to that which is set out in the most recent previous valid version of the will. If the will challenge is upheld and the challenger is not a beneficiary in the valid will, the challenger will likely get nothing. If there is no previous will, then the estate will be distributed in line with California rules of intestacy.

California law provides that any part of a decedent's estate not effectively disposed of by will or other non-probate transfer mechanisms are distributed pursuant to California's intestacy statutes. The statutes generally have different distribution mandates depending on whether the decedent had a surviving spouse but no children, surviving children, or single with no children. The particularities of the statutes should be reviewed prior to a will challenge.

The general grounds in both England and California for contesting a will include: Improper execution; lack of testamentary intent or capacity; undue influence; forgery, fraud, duress, mistake and revocation. Since California is a community property state, special rules apply that limit a married spouse's right of disposition to 50% of community property assets. Surviving spouses are entitled to get their 50% of community assets by law.

A challenge to a will that has been admitted to probate is untimely if filed after 120 days from the time of admission. If no timely contest is filed, the validity of the will is conclusively established. These time limits require some quick decision-making:

"In most instances, you have a limited time to contest the will and if you do not do so within that time frame you are barred from bringing an action. So it is important to consult with a lawyer soon after the death."

Will contests have long been an element of estate law. Common law jurisdictions like Australia, the UK including England, Scotland and Wales, New Zealand, Canada and the United States, all have lawyers/attorneys/solicitors/barristers who focus on will and trusts contests.

Hackard Law represents international, United States and California clients in California probate and civil courts in estate, trust, probate and elder financial abuse litigation. Our primary venues include Los Angeles, Orange, Santa Clara, San Mateo, Alameda, Contra Costa and Sacramento Counties.

We take substantial cases where we think that we can make a significant difference and there is a wrongdoer who can be made financially accountable for their wrongdoing or breach of duty. If you would like to speak with us about your case, call us at 916 313-3030.

Peter Max is a countercultural icon, a painter whose art defined an era of rebellion, freedom, youth, and nonconformity. Because his psychedelic style was so recognizable, he became a wealthy celebrity artist in the 1980s who earned the right to be compared to other pop cultural artists of our time including Andy Warhol, Jeff Koons, and Damien Hirst. His work appeared on cereal boxes, airplanes, postage stamps, and cruise ships.

Even though Peter Max became an extremely successful and wealthy artist, in the late 1990's he ran into financial troubles and pled guilty to tax evasion. Those troubles ultimately led Max to partner with a company called Park West Gallery which sells art at auctions held on cruise ships including Royal Caribbean, Carnival, and Norwegian. Nostalgic baby boomers are the primary buyers of the art, where some of Max's paintings have sold for as much as $30,000. Through the Park West Gallery, Max resurrected his career and earned millions of dollars.

In the process of rebuilding his fortunes, Max also rebuilt his life. He counted Ringo Starr as one of his friends, and when he married his second wife, Mary Balkin, 30 years his junior, their wedding was officiated by then-Mayor Rudy Guiliani.

As the demand for his work increased, Max painted feverishly to keep up and was so prolific that he filled a warehouse in New Jersey with art. But at the age of 75, in 2012, at a time when he should have been enjoying the fruits of his labor, Max began to experience progressively worse signs of Alzheimer's Disease and dementia. That's when his troubles began anew.

The Peter Max art business is owned by Max and his two grown children from his first marriage, Adam and Libra, each of whom held a 40% stake. As Peter Max's faculties and productivity began to decline, Adam Max took over financial responsibility for the studio in 2012, at which point the business defaulted on $5.4 million in bank loans. Then Hurrican Sandy hit in the Fall of 2012 which flooded Max's New Jersey warehouse and led to a $300 million flood insurance claim. Max apparently hired an insurance agent and an accountant to manage his finances, and together with Adam Max the three took over the business and decided to ramp up production of Max paintings that would be sold at cruise ship auctions. The problem, of course, was that Peter Max was unable to paint. The New York Times reported that to deal with that issue, the three businessmen hired 18 assistant painters to create original artwork which Max would then sign.

As Peter Max's dementia became worse, his wife Mary petitioned the Supreme Court of the State of New York to appoint a guardian to oversee her husband's business. In response, Adam Max took his father to an undisclosed location. His stepmother claims Adam kidnapped Peter. Peter said he took his father to protect him from his stepmother's verbal and physical abuse. Was the stepmother physically and verbally abusive? Again, according to the New York Times, "Several sworn affidavits described Ms. Max as a neglectful, even punishing, figure in her husband's life - a view that even came to be supported by the guardian she had sought to appoint." In a situation like this, it's hard to know who to root for.

Meanwhile, as his health declined, sales of Peter Max's art began to boom. Between 2012 and 2018, Park West's cruise ship auctions generated more than $93 million in sales; net profit in 2018 alone was $30 million.

Predictably, with all that money on the line, the family saga went to the courts. Libra Max and Max's guardian removed Adam from the company business and named her as the President and Chief Executive. Libra then filed lawsuits against her brother to restrain him from further involvement with the company, and also against his business partners to terminate their business agreements. Libra also fired many of the assistant painters in an effort to bring the studio back to "her father's vision." Earlier this year, she also filed a lawsuit against Park West Gallery, alleging that they took 23,000 works of her father's for which they paid $14.7 million against what is claimed as a true value of at least $100 million. Park West has countersued claiming breach of contract.

As with other high-profile celebrity cases we've profiled, Peter Max's situation stems from friction between a much younger stepmother (in this case, for all intents and purposes a widow - even though Max is still alive) and at least one stepchild.

So was Peter Max systematically exploited by his son and business associates once he became mentally incapacitated - a case of elder financial abuse? Or was Peter Max's wife physically and verbally abusive - a case of elder abuse? Neither situation is tenable - these are questions that courts may yet decide.

For the moment, Peter Max is at his home, cared for by his wife, daughter, and a court-appointed guardian. He is reportedly oblivious to all the drama surrounding his life and legacy and is said to be happily enjoying his Manhattan apartment and the art, much of it his own, that fills the walls. All we can do is wish him well.

Before you go, please let me know if you'd like to receive a free copy of my first book, The Wolf at the Door, or my new book, Alzheimer's, Widowed Stepmothers & Estate Crimes. Just send your address in an email to me at hackard@hackardlaw.com, and I'll be glad to put one in the mail.

Photo Credit: https://flickr.com/photos/36277035@N06/5113184520

This week's Los Angeles Times article, "When a 'trusted' financial professional targets the assets of America's elderly," is worth reading. Whether you're a senior yourself or you have elderly loved ones, now is the time to be on guard against elder financial abuse.

The article notes that in 2017, financial institutions filed 63,500 Suspicious Activity Reports (SARs) tied to the exploitation of older adults, quadruple the number reported just four years earlier. Parts of the article are based on a very important February 2019 study by the US Consumer Financial Protection Bureau.

The study references elder financial exploitation as "EFE." The study, which we've linked in our text, is available online. The Consumer Financial Protection Bureau (CFPB) website reports that since "2013, financial institutions have reported to the federal government over 180,000 suspicious activities targeting older adults, involving a total of more than $6 billion."

Key findings from the Bureau include the supposition that Suspicious Activity Reports "likely represent a tiny fraction of actual incidents of financial exploitation." That means the actual scale of elder financial abuse is much larger than we might think.

Other findings include:

• "(N)early 80 percent of EFE Suspicious Activity Reports involved a monetary loss to older adults and/or filers (i.e. financial institutions)."
• In Elder Financial Exploitation "Suspicious Activity Reports involving a loss to an older adult, the average amount lost was $34,200."
• "In 7 percent of these EFE SARs, the loss exceeded $100,000.
• Adults ages 70 to 79 had the highest average monetary loss ($45,300).
• Losses were greater when the older adult knew the suspect.
• The average loss per person was about $50,000 when the older adult knew the suspect and $17,000 when the suspect was a stranger.
• Fewer than one-third of EFE SARs indicated that the filer reported the suspicious activity to a local, state, or federal authority."

So, let's step back from this for a moment and see what conclusions we can draw from the CFPB's research.

1. Losses are greater when the elder knows the suspect.

2. Adults ages 70 to 79 had the highest average monetary loss ($45,300).

3. Don't count on the financial institution to report the suspicious activity to the local, state, or federal authority. The report rate is only about 33%.

4. Share this information with elders so that they know that the danger of fraud against them increases with age.

At Hackard Law we regularly represent beneficiaries in California estate and trust litigation, and many of these cases involve elder financial abuse. The statistics from the LA Times article are just the tip of the iceberg. Because there are so many cases, we cannot represent everyone. But I have written two books on the subject, The Wolf at the Door and Alzheimer's, Widowed Stepmothers & Estate Crimes. If you'd like a free copy of either book, just send your address in an email to me at hackard@hackardlaw.com, and I'll be glad to put one in the mail.

My book, The Wolf at the Door: Undue Influence and Elder Financial Abuse, is now two years old. I enjoyed writing the book and I now enjoy the fruits from the reception that it has received.

Part of this enjoyment is my increased opportunity to speak with people from all walks of life and circumstances. While I occasionally speak before groups or appear on radio shows, my most common communication is with people that call us to discuss their concerns or a possible case.

While many of these calls identify real financial elder abuse, a substantial number of these inquiries describe conduct that doesn't rise to the level of statutory elder abuse. That said, the conduct described can truly be sad.

The frustrations of dealing with parents with memory loss does take its toll. While understandable, it is disquieting to see an adult child berating an elder with a scolding "you just said that, dad" or "you've said that five times, mom." There are better ways to handle this.

Children dealing with parents and memory loss can get a lot of help and advice from associations that provide information on Alzheimer's disease. Grandparents take joy in their grandchildren. In some ways it's a joy that you can't describe unless you're a grandparent.

Proverbs 17:6 puts it well: "Grandchildren are the crown of the elderly..." It hurts if the crown is taken away. There is great power in just being present to each other. Present to a parent suffering from memory loss. Present to a parent who is lonely.

Present to a parent who yearns to see their grandchildren, and present to an elder whose time on this earth may be short but whose love for family should not be shunned.

It is a common question: "Can you dispute a life insurance beneficiary?" Contesting beneficiary designations arise for a variety of reasons, among them:

• Beneficiary fraud;
• Life changes by the policy holder including marriage, divorce, remarriage, adoption, childbirth; and
• Beneficiary changes near the policyholder's end of life.

Securing professional representation in the negotiation and litigation of a beneficiary claim can be challenging. These claims often pit vulnerable plaintiffs against well financed defendants. Many commentators and professionals are concerned that the middle class cannot afford lawyers.

As an interesting note, the Texas Supreme Court created a commission to address the issue.

The 2017 Justice Gap Report reported that 86% of the civil legal problems reported by low -income Americans received inadequate or no legal help. Of course, a significant percentage of America's middle-income families have the same problem.

Given these statistics, it is little wonder that many clients with life insurance beneficiary challenges seek out contingency lawyers. Many simply cannot afford hourly fees. In the words of the American Bar Association -

"A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited ... A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination."

When Hackard Law represents clients in life insurance beneficiary disputes we adhere to the ethical rules set in place by the State Bar and the safeguards of California's Business and Professions Code. These include the following guidelines:

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What are the rules for attorney contingency fees?

• 1) The agreement is in writing with a signed duplicate provided to the client;
• 2) The client is notified that the fee is negotiable;
• 3) The client is notified of the percentage fee as well as how costs and disbursements will affect the size of the fee and the client's recovery.

Hackard Law focuses on representing clients in significant cases where we think that we can make a substantial difference and there is a wrongdoer who can be made financially accountable for their wrongdoing.

California life insurance beneficiary disputes in California are usually filed and tried in the county where the defendant lives. Most of Hackard Law's California litigation cases are located in Los Angeles, Orange, Santa Clara, San Mateo, Alameda, Contra Costa and Sacramento Counties.

If you think a contingency arrangement may be right for your case, you can call us at 916-313-3030. We'll be glad to hear your story and see how we can help you.

I'm a Californian. I've been so since 1950 - the year of my birth. All of our children and grandchildren are Californians. We love our state. And, we know that our state is in peril.

I'm also a lawyer. I'm sure that I pay more attention to the law than if I'd chosen another career. So, paying attention to the law is something that I'm supposed to do. And, given the state's current wildfires and utility power shut offs, it's worth a little reflection.

California law and state court rulings make publicly and privately-owned state utilities responsible for property damage if their equipment caused the fire. This is essentially strict liability - liability is imposed whether or not the utility acted negligently. While less than 10% of wildfires are caused by powerlines, the liabilities accruing from those wildfires are huge.

When the wildfires are catastrophic, the resulting liabilities are equally catastrophic. Our state's political and business leaders are struggling with this. The California Public Utilities Commission has rejected efforts by utilities companies to raise utility rates to compensate for litigation payouts related to fire liabilities.

PG&E Corp., the owner of our state's largest power utility, filed bankruptcy in January 2019 to address liabilities resulting from some of California's most devastating wildfires. PG&E's stock has dropped nearly 87% over the past year. The company cut power to nearly 970,000 customers last weekend. It's estimated that nearly 2.5 million people were without power.

The company is being criticized on allegations that it is focusing on minimizing its own financial liability rather than weighing the trade-offs with the human and financial impacts of power outages. If someone has an easy answer to this, speak up.

Our state requires utilities to support housing developments in areas classified as
"very high fire risk." We are told that the outages are now a likely a regular part of California's future. Politicians and utility businesses are heavily engaged in the discussion of power outages. California's people, while not left out of the discussions, have not really had their voices heard. Those voices are going to grow louder.

Having watched some revolutionary changes in my lifetime, I suspect that Californians are not going to react positively to third-world style power cutoffs. In the words of Buffalo Springfield's 1966 "For What It's Worth" ballad, a classic protest song:

"There's something happening here

But what it is ain't exactly clear ..."

The song's chorus goes on:

"I think it's time we stop

Children, what's that sound?

Everybody look - what's going down?"

California's people, or at least a significant percentage of them, are going to stop and think about what's going down. It's inevitable. What comes out of it - I don't know. But I don't think that blackouts will silence the people.

I remember being 15 years old, standing on a San Francisco sidewalk, watching a 1965 protest march against the Vietnam War. The marchers seemed like outliers. But by 1967 there was widespread disillusionment.

In the spring of 1968, I sat in my college dorm room watching LBJ announce that he would not run for reelection. I saw college campuses close, including my own, in May 1970 when National Guard troops shot into a group of Vietnam War protesters at Kent State, killing four students. Three years later Nixon announced an effective end to U.S. involvement in Southeast Asia.

Maybe I'm being dramatic - I could be. Still, we may be in for some drama. The much seen and heard Les Miserables' song, "Do You Hear the People Sing," brings the theme to mind.

"Do you hear the people sing?

Singing the song of angry men?

It is the music of the people

Who will not be slaves again?"

So, going back to where I started. Are power shut offs doing more harm than good?

I suspect that, while it may take time, we're going to hear the people sing. And, their song may strike a tune radically different from what California's politicians and utility business leaders are playing today.