Tuesday, December 26, 2006

Last call on undue influence

Before putting undue influence to rest (at least for now), I've added a resource page on the topic to my website. Just copy and paste:

While you're visiting the site, you might want to check out my "Lisa's picks" section. Just reviewed a booklet, Missing Voices: Views of Older Persons on Elder Abuse by the World Health Organization and the International Network for the Prevention of Elder Abuse, a fascinating view of abuse from an international perspective. It's at:

There's also a link to Animal Hoarding: Structuring Interdisciplinary Responses to Help People, Animals, and Communities at Risk, another fascinating document that I was involved with.

By the way, I changed the format on my blog. It's now easier to leave comments and there are several on the last post. Please feel free to join the discussion on whether or not caregivers who receive last minute bequests should be presumed to have influenced those they care for. Just click on the page "PPS on Undue Influence," which is listed under "archive" to the right and scroll to the end where it says "Post a Comment."

Thursday, December 14, 2006

PPS on Undue Influence: The Civil Side

For the season of giving...
Caregivers in California who receive last-minute bequests from those they care for are presumed to have exercised undue influence, even if they were close friends. That’s because of a controversial 1993 law that was recently upheld on appeal (Bernard v. Foley).

Probate Code Section 21350 was enacted following a scandal that involved an estate-planning attorney who named himself and his family as fiduciaries for, and beneficiaries of, clients’ estates. The law lists categories of people who can't inherit unless they can prove that transfers weren't the product of fraud, menace, duress, or undue influence. It includes those who draft wills and trusts and law firms, lawyers, and employees of law firms associated with them. And caregivers.

The suit involved 97-year-old Carmel Bosco, a widow who died childless in 2001, leaving an estate of around $448,000. Two months earlier, she’d moved into the home of an old friend, Ann Erman and Erman’s boyfriend, James Foley. Mrs. Bosco made the move at the urging of Erman, who had previously been married to Bosco’s nephew, Arthur Erman.

Erman and Foley took care of Bosco during the last months of her life, tending her bedsores, administering morphine, preparing meals, and helping to change her diapers. They went through her mail and handled her financial and investment affairs. During that time, Bosco amended her living trust several times, each time giving more to the couple– she'd originally left her estate to family members. A few days before she died, she changed it again, naming Foley and Erman each as 50% beneficiaries

Bosco's family, including nephew Arthur, sued, claiming that Foley and Erman had exerted undue influence over Mrs. Bosco, who was gravely ill and heavily sedated when she changed the trust the last time. The case got down to whether Foley and Erman were care custodians, and therefore, covered under the law. Foley claimed that he and Erman were simply “performing acts of kindness on a purely volunteer basis as good friends often do for others.” The trial court agreed.

But the family appealed, the court of appeal reversed, and the California Supreme Court agreed with the appeals court, writing that “a caregiver may be a personal friend, and in fact, personal friends are uniquely in a position to unduly influence the elderly for whom they care.” Chief Justice George agreed with the majority but suggested that the law be amended to differentiate between long–term caregivers and those who provide care for short periods of time.

In response, in September, the California Assembly passed AB 2034, sponsored by the State Bar Trusts & Estates Section, which directs the California law Revision Commission to study Section 21350. The Commission is expected to begin looking at the issue in March.

Monday, December 04, 2006

Postscript on Undue Influence is Not a Crime

Last week, Melissa McKowan, prosecutor in the undue influence case I described in my last post, told me that the California Supreme Court has denied a request to review the appellate court’s reversal, so the case can’t be retried.

She had this to say about the case:

“I was devastated by the decision. The defendant made himself indispensable to Mr. Roussey, who became so attached to the defendent, he’d do anything he wanted. This is someone who has been told all his life that he was dumb; by prosecuting, we were saying that it was not his fault, that he was the victim of a serious crime. It was incredibly empowering. Now the court is saying it wasn’t a crime. Clearly, obviously, it was criminal conduct, and people need to understand that a financial loss like this is more devastating to seniors than a blow to the head.”

The good news is that the case has energized Melissa to fix the problem. She’s working with state California State Senator Joe Simitian and the California District Attorneys Association to write undue influence into California’s elder abuse criminal statute.