Rules for Valid Wills Create Traps for the Unwary

California's statute of wills contains several requirements that must be followed in order for a will to be valid. An invalid will could cause the estate to be probated according to the laws of intestate succession, where the wishes of the will-maker (the testator) are completely ignored, and the estate is distributed according to preset statutory rules.

Requirements for a Valid Will

In order to be competent to make a will, a testator must be 18 years old and of sound mind, possessing the necessary testamentary capacity to make a will. This means that the person must understand what it means to make a will, must appreciate the extent of his or her estate, and must know the family members and other persons whose interests will be affected by the making of the will.

The will must be in writing (i.e., typed or printed) and either signed by the testator or by another at the testator's direction. There must be two witnesses together at the same time to also sign the will, attesting that they witnessed the testator's signature or the testator's acknowledgement that the signature on the will belongs to him or her.

Numerous Ways to Challenge a Will

A will can be challenged (contested) in any number of ways. One may allege that any of the procedures outlined above were not followed properly, or that the testator lacked the testamentary capacity to make a will. Even a will that meets all the above requirements is invalid if it can be shown that the testator signed the will under duress or by virtue of fraud or undue influence. When more than one will is produced, difficulties arise as to which will should be accepted and admitted into probate. A will contest can cause drawn-out litigation where legal battles are fought over complicated factual and legal issues.

Always Seek Professional Assistance

As a lawyer who practices both estate planning and probate litigation, Vin Casiano knows that the best defense is a good offense, and the best way to keep a will safe from contests is to make sure that it is prepared correctly in the first place. Always seek the assistance of an experienced estate planning attorney to make sure your will is prepared with the care and skill required to be valid under California law and to withstand any legal challenges. In San Diego and Southern California, contact the Casiano Law Firm for sound legal advice and high-quality professional assistance.

Advance Health Care Directives

An Advance Health Care Directive (AHCD) is a document that allows you to specify your health care preferences and appoint someone to carry out your wishes for you in the event you are incapacitated or otherwise unable to communicate. An AHCD allows you to inform your doctor, family and friends of your preferences regarding your medical care and treatment, including end-of-life decisions. By specifying your wishes in advance, you ensure the quality of life that is important to you and spare your loved ones from having to guess what your preferences would be, or force them to make difficult decisions at a time when they are emotionally distraught. If at some point you become incapacitated, a valid AHCD can eliminate the need for a conservator to be appointed to make decisions regarding your care and medical treatment.

California law requires certain provisions to be included in your AHCD and certain formalities to be followed in the execution of an AHCD, but there is no one single form required for a valid AHCD. An AHCD should designate a person to carry out your wishes (this person is referred to as your "agent") and may include provisions:

• Regarding life support or other life-prolonging measures
  
• Authorizing an autopsy
  
• Directing disposition of remains
  
• Nominating a conservator
  
• Naming a primary physician
  
• Specifying your wishes regarding organ donation
  

AHCD Replaces Earlier Forms of Health Care Directives
Effective July 1, 2000, California consolidated various earlier forms used to designate health care preferences into the AHCD; earlier forms of health care directives included the Durable Power of Attorney for Health Care, Natural Death Act Declaration, and the Directive to Physicians. The AHCD is sometimes referred to as a "Living Will" in other states.

If you have a valid Durable Power of Attorney for Health Care or other valid health care directive executed prior to July 1, 2000, the document can remain in effect. However, you may want to update your health care directive to specifically refer to the Health Insurance Portability and Accountability Act (HIPAA), which regulates the use and disclosure of certain protected health information by doctors, hospitals, and other health care providers. Some medical providers have misinterpreted the privacy rules of HIPAA and have withheld the release of patient information from the patient's family. Although the California Probate Code does not require the AHCD to specifically refer to HIPAA, many estate planning practitioners include a provision releasing the medical provider from liability under HIPAA for disclosure of protected information to the patient's health care agent and/or family.

Estate Planning Issues Require Experienced Legal Representation
If you need assistance with estate planning, contact the Casiano Law Firm for a complimentary telephone consultation with an experienced San Diego elder law and estate planning attorney.

Report Finds California’s Long-Term Care Ombudsmen Are Unable to Stop Abuse

According to a new report, many cases of nursing home abuse and neglect are likely going unnoticed in California. The report attributes the problem to recent budget cuts as well as conflicting ombudsman duties and conflicting confidentiality laws.

On November 3, 2009, the California Senate Office of Oversight and Outcomes released the report revealing serious defects in California’s Long-Term Care Ombudsman program. California’s Elder Abuse Investigators: Ombudsmen Shackled by Conflicting Laws and Duties can be viewed here.

California’s ombudsmen were originally charged with advocating for the elderly in nursing homes and generally providing a watchdog presence. Today, their primary task is investigating claims of abuse and neglect within nursing homes. Where they used to collaborate with nursing homes and act as a liaison between management and residents, now they are placed in an adversarial role, which grants them less access to the inner-workings of the nursing homes they cover and makes them less effective advocates. Additionally, investigations are complex and time-consuming, so most ombudsmen no longer have time to make regular nursing home visits, establish any sort of regular presence, or provide advocacy services.

Unfortunately, ombudsmen also receive more complaints than they are able to investigate. Since last year’s massive state budget cut, the ombudsman program has been left with about half of the budget it previously had. It appears that individual ombudsmen are adjusting to the loss of resources by allowing some allegations of abuse to go uninvestigated. According to the report, ombudsmen forwarded 44 percent fewer complaints to outside agencies for enforcement since the budget was cut.

The report also states that, in many cases, ombudsmen have their hands tied when they try to pursue cases of alleged abuse. Typically, when ombudsmen investigate complaints and find one they believe to be well-founded, they are instructed to forward it to the appropriate outside agency for further investigation, protection, and potential prosecution. But many of these legitimate complaints are not being forwarded. A federal law prohibits ombudsmen from forwarding a complaint without a release of identity from the person who made the complaint. But many of the elderly making complaints refuse to release their names for fear of retaliation within their nursing home. In fact, according to the report, three quarters of people who made complaints refused to release their identities.

Elderly individuals who are subjected to abuse or neglect should not have to keep quiet in order to avoid further harm in the nursing homes where they live. If you or a loved one has been mistreated in a nursing home, contact The Casiano Law Firm for a confidential consultation.

Nursing Facility Resident Dies of Fire-Related Injuries

A 74 year-old female resident of the Lemon Grove Care and Rehabilitation Center near San Diego, California caught fire while smoking at the facility’s patio on March 31, 2008. Less than two weeks later, the woman died of burn-related injuries she suffered to her face, head, chest, fingers, and arms.

The California Department of Public Health’s investigative report regarding the incident showed that the woman had been smoking in the patio-gazebo area, which had been designated for smoking. According to the report, no staff member was supervising her, even though a prior plan of care by the facility indicated that the woman was a potential risk for smoking-related injuries, and thus needed to be monitored to assess compliance with the facility’s smoking policy.

The woman had been sitting on her electric scooter and shielded herself from the wind by placing a jacket over her head, while trying to light her cigarette at the same time. However, her jacket caught on fire as she tried to light her cigarette. To see the Department’s investigative report, click on the following link:

Lemon Grove Care and Rehabilitation Center
Prior to this incident, Lemon Grove received three minor citations, one dating from 2005, and another two dating from 2008. Lemon Grove provides a full range of nursing services, ranging from physical, occupational, speech, and intravenous therapies, to assisting patients who are recovering from serious illnesses or injuries. Residents receive both long and short-term care from this facility.

Type of Care Nursing Residents Should Receive
The Department of Public Health cited the center with violating 42 CFR 483.25(h)(2) of the Federal Code. Title 42 CFR 483.25, subsection (h) states, “The facility must ensure that (1) the resident environment remains as free of accident hazards as is possible; and (2) each resident receives adequate supervision and assistance devices to prevent accidents.” To view the entire statute, click the following link:

Lemon Grove Received the Highest Penalty Under State Law
In this incident, Lemon Grove received an “AA” citation and was fined $80,000 by the Department of Public Health. “AA” citations are issued when a resident has died at a facility and the facility’s violation of the law was the proximate cause of the death. The “AA” citation is the most severe violation a nursing facility can receive under state law. Fines for “AA” citations range from $25,000 to $100,000. Moreover, if a facility receives two “AA” citations in less than two years, the process for revoking the facility’s license automatically starts.

Other less severe citations a nursing facility can receive are “A” citations and “B” citations. “A” citations are issued by the Department of Public Health when patients face imminent danger, or the probability of death or serious harm due to the facility’s violations. Such fines range from $2,000 to $20,000. “B” citations are issued for violations that concern health, safety, or security, but do not rise to the level of “A” or “AA” citations.

If you have a loved one who is not being properly cared for at a nursing center, it is important that you contact a San Diego elder abuse attorney to protect his or her rights. If you have a question or comment, please respond to this posting, but keep in mind that your responses will not be confidential. You can also call or e-mail us if you would like to discuss the matter in confidence. Thanks for reading our blog.

New Laws to Take Effect in 2009 to Assist California Elders

As 2009 quickly approaches, several new laws affecting elder and nursing home abuse will take effect on January 1. Hopefully, they will help protect elders from financial abuse and encourage and make it easier for nursing home residents and their families to report theft and abuse in nursing homes.

Several Laws Aim to Protect Elders from Financial Abuse
Financial abuse is one of the greatest threats to elders. Whether it is by family members, nursing homes and their staff, or scam artists who are complete strangers, elders are particularly vulnerable because of their often poor health and mental state. The most important law taking effect at the start of 2009 will amend the Elder Abuse and Dependent Adult Civil Protection Act. The law’s goal is to make it easier for elders and their families to recover from financial abuse due to undue influence. Undue influence occurs when someone pressures an elder to give away money that he or she would not normally have voluntarily given.

This law also makes it easier for families to sue by extending the statute of limitations to four years. Therefore, if you believe a family member has made a financial decision due to undue influence, you now have four years in which to sue for recovery. An extra year can be very helpful because it can often take some time to discover that financial abuse has occurred.

Law Hopes to Encourage Reporting of Property Theft in Nursing Homes
Supporters of another important law taking effect January 1 hope that it will encourage elders and their relatives to report stolen property – primarily cash and valuables like jewelry – to the local police and ombudsman offices, and not just to the nursing home administration. The new law would require local police and the ombudsman to immediately report suspected or known theft and abuse to the local District Attorney’s Office.

According to San Diego County Deputy District Attorney Paul Greenwood, nursing home staff will often keep reported thefts quiet and handle such matters internally instead of going to the police. This means that property is often never recovered, because many nursing homes say that most property is simply lost and misplaced by elderly residents, as opposed to being stolen by staff.

The best way to prevent elders’ valuables from being stolen is to remove them from the nursing home and store them in a secure place. Also, family members should immediately report any missing items to the nursing home administration, but if the property is not recovered within a day, they should contact the police directly.

Thank you for reading my blog. If you have a question or comment, feel free to respond to this posting, but keep in mind your response will not be confidential. If you or a loved one have been the victim of abuse, negligence, or neglect by a nursing home, contact an attorney to find out your legal rights and options. You can also contact me to discuss your matter confidentially.

Fairness in Nursing Home Arbitration Act

Earlier this week the House Judiciary Subcommittee on Commercial Law and Administrative law approved the federal Fairness in Nursing Home Arbitration Act, which would preclude nursing homes from forcing patients to sign an arbitration agreement prior to a dispute. Consumer advocates including the AARP and the Alzheimer’s Association supported the Act. The Act doesn’t preclude binding arbitration as an option in the event of a dispute, but instead requires the decision to be made by both parties after a dispute occurs.

Arbitration is an alternative method of dispute resolution that does not require going to court. Instead of a court proceeding, an arbitrator is appointed to hear both sides of the dispute and issue a ruling. The arbitrator considers both federal and state law when resolving the dispute. Advocates of arbitration say it provides a faster resolution and is less expensive for both the nursing home and the resident. Critics of arbitration note that arbitrators are less likely to rule for the plaintiff, and if they do, the awards are generally smaller. Critics also note that since arbitration is confidential, it leads to less accountability on the part of the nursing home, and shields the nursing home owner from the consequences of allowing abuse or neglect to occur.

The Fairness in Nursing Home Arbitration Act (the “Act”) was designed to prevent patients from signing away their right to have a dispute heard in court. The Act recognizes that entering a nursing home can be a stressful event, and often occurs after a patient has experienced a serious or long illness. The patient may also be under medication that impairs their judgment or ability to understand the admission documents. In the State of California, nursing homes are not permitted by law to include an arbitration clause in their contracts for admission of a patient. However, most nursing homes do have an optional arbitration clause provision that they attach to the admission contract as an attachment or addendum. Many patients sign this attachment without fully understanding their rights or that they have waived their right to a trial before a judge or jury.

The Act invalidates any pre-dispute arbitration agreement between a nursing home and resident. Some members of the committee attempted to modify the bill, by trying to ensure that the bill would not be retroactive, or by attempting to exclude nursing home physicians. These modifications were rejected. The committee’s approval of the Act makes it one step closer to becoming law. I will keep you posted on further developments.

If you or a family member is entering a nursing home, read all of the admission documents carefully. If you don’t understand something, don’t sign it until you’ve consulted an attorney. Remember, under California law, they can’t make you sign an arbitration clause as a condition to admission.

Thanks for reading. If you have a question or comment, please feel free to post it here. If you have a question or need assistance with a potential claim against a nursing home or assisted living facility, contact me for a confidential consultation.