Legislative
Projects
Survey To Determine How Well the Courts Are Serving People Who Are Not
Affluent.
[To be funded by charitable
contributions]
The Second District Court of Appeal
said that fact-finding
by the Legislature is necessary in order to determine whether Probate
Courts should change
their practices:
"Unlike
the courts, the Legislature has the capacity to conduct the kind of fact
finding required to determine the degree to which fee awards throughout
state may have undermined the representation of less-than-affluent
elders. And it is only through the legislative process that the policy
determinations derived from such fact finding may ultimately be
implemented."
A survey would enable the Legislature
and the Courts to make informed decisions about what is or is not
needed. Many advocates for elders assert
that Probate judges reduce their calendar workload, by weeding out the small
cases, through the practice of imposing impractical limits on Conservator's
fees, attorneys fees, and trustee fees. If that
is true, elder abuse victims are deprived of the law's protection by the very
courts charged with the duty to protect them.
The survey should
be coordinated with a consolidated database (to be created under a separate
Armed with
information from such surveys (if repeated every 5 or 10 years) and the
consolidated database, the Legislature would be better informed and more able
to make good decisions about what needs to be done, and what the effect of past
legislation has been.
Affidavits
of Judicial Prejudice; Random Assignments - When a lawyer or his/her attorney files an
Affidavit of Prejudice (CCP §170.6) against a judge, requiring the
reassignment of the case to another judge, the law should require the
local court to make a random assignment, and to maintain records available to
the public showing that the re-assignments were indeed random. The manner
of assignment and its random character should be public knowledge, so that
confidence in the integrity of the judicial system is preserved. In some counties,
when a party Affidavits a judge whom no one wants, the party gets shunted to
another judge whom everyone Affidavits, because the latter judge's calendar is
wide open. It should be possible for voters to ascertain which judges
were Affidavitted, and how frequently, in order to
investigate why this happens, and to be informed when the voter casts his/her
ballot.
Affidavits of Judicial Prejudice; Web site - When a lawyer or his/her
attorney files an Affidavit of Prejudice (CCP §170.6) against a judge,
requiring the reassignment of the case to another judge, the Affidavit should
be posted on a web site where the public could see which judges are frequently
rejected because they are perceived to be unfair. Interested persons
could then review the files, which are open to the public, and decide for
themselves if there is a basis for those Affidavits. Those judges
who behave in an intemperate manner because they can get away with it, would be
less likely to do so, if the light of day were to shine upon it during
re-election campaigns. A nominal charge of $5 (or thereabouts) for filing
Affidavits would be sufficient to fund this.
Annulling
predatory marriages to abuse incompetent victims - It is becoming increasingly standard practice for
relatively young men and women to marry incompetent dementia victims, for the
purpose of acquiring the victim's estate. Typically, after the marriage,
the perpetrator will isolate the victim from family and friends, get new estate
planning documents (trusts, wills, durable powers of attorney and of course,
Advance Health Care Directives ("Let him die in peace") ), and
thereafter hasten the victim's death. "He didn't want to take all
those medications. He had the right to make that choice!"
Attorneys
Should Not Be Relieved of The Duty to Investigate an Obviously Mentally
Impaired Client's Competence - Attorneys should have as much duty to take cognizance of a
client's obvious incompetence, as anyone else selling goods and services.
A recent court decision, ruling that a lawyer has no duty to ascertain his/her
client's competence, will facilitate abuse by the bad-apple lawyers and by the
victimizers who get those lawyers to draft new wills for the victims, before
the victimizers "allow" the victims to die of "natural" causes.
Authority
Of The Judge To Appoint Additional Counsel For A Proposed Conservatee
Where The Judge Believes That There Is A Serious Question Whether The Proposed
Conservatee Lacks The Capacity To Hire Counsel
Business
& Professions Code Section 6125 amendment - Access to the Courts for the
modest estate trustee or agent under a durable power of attorney. This
proposal would authorize Courts to permit conservators, trustees and agents
(under durable powers of attorney) to represent themselves in lawsuits, if the
Court determines that they lack the funds to hire an attorney, and there is no
other viable option. Currently, the Court must prevent the trustee from
representing himself even if the claim seems valid and the statute of
limitations is running, and the claim will be lost for lack of representation.
Fees
and Costs under the Elder Abuse and Dependent Adult Civil Protection Act - .......[Under
construction]
Forensic testimony; Fraudulent or Reckless - Licensure sanctions for reckless
or fraudulent testimony. A psychiatrist, psychologist, lawyer, CPA
or other professional who testifies giving an expert opinion, should be subject
to professional sanctions where the opinion is - .......[Under construction]
Forensic
Competence Assessments; Protocol
- The
credibility courts assign to assessments of competence should be consistent
with modern neurobehavioral science's standards.
Probable
cause hearings for the mentally ill - A probate conservator of the person should be
[1] given notice of an LPS probable cause hearing, and should be
[2] permitted to present evidence.
Major Legislation Enacted
Medi-Cal
Separation of Assets to prevent nursing home impoverishment - 1984
Medi-Cal law drafted by
Elder
Abuse and Dependent Adult Civil Protection Act - Medi-Cal law drafted
by
The
Due Process in Competence Determinations Act - Mental competence
controversies
Probate
Code §259 (and §2583(m)) disinheriting victimizers
Probate Code §21350(a)(6) disinheriting victimizers
SB
1742 - Enabling Law Enforcement, Adult Protective Services and the
Public Guardian to combat elder abuse together, before the horse is out of the
barn
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