Licensing Requirements

Effective July 1, 2008, California law requires private professional fiduciaries to be licensed with the Professional Fiduciary Bureau of the Department of Consumer Affairs. Any "ProFid" who is not licensed has a grace period to be in compliance which extends to January 1, 2009. The Court cannot appoint anyone who is not licensed. To find out the details on what constitutes a professional fiduciary and who may be exempt from the licensing requirements, you can go to the webpage for the Dept. of Consumer Affairs and locate the Professional Fiduciary Bureau for specific information. Cindy Harvey and I are pleased to report that we are in full compliance with the new laws, and ready to be assistance to the community's citizens and their families.

New Legal Requirements

In September 2006, the Governor of California signed into law the new Omnibus Conservatorship Guardianship Law that will take effect January 1, 2008. This new provision of the law will, among other things, require official licensing of private professional fiduciaries. The application process presents a list of requirements in order to make the application and also provides for fingerprinting and a background credit check. Now, this new requirement is only for private professional fiduciaries who serve as conservators, guardians, trustees and agents under a power of attorney. It does not necessarily apply to Cousin Susie who is acting as conservator for Grandma unless Cousin Susie is the conservator for others. The official licensing of a private professional fiduciary has been a long time in the making, and a step that we support. It clearly weeds out the "real deal" from the wannabee who thinks that this work is easy and is in it for a quick buck. However, when you are looking at employing the services of a private professional fiduciary, you need to be a careful shopper. Always interview more than one private professional fiduciary whenever possible, and ask questions. If after an interview, go back to ask more questions if something new comes to your mind. The upside of the new law will mean added protection for the public, but on the downside, it means that you will have a smaller number of qualified ProFids providing a very valued service to the community. It also means that every County Public Guardian will likely become impacted with a larger number of case referrals that they cannot easily manage without more tax dollars. The cost of doing business for a private professional fiduciary has doubled and in some areas, tripled in cost with the new laws. Some ProFids may not be willing to accept freebie cases out of the kindness of their hearts, or they may be forced to reduce the quota of cases they are able to handle. It may be that we will see families forced to step up to the plate and become a conservator for their own, and if so, feel free to see if you can get the Professional Fiduciary to help you with case management for a modest fee. Yes, everything is always in a process of change. As we move into January 2008 and the first year of this new evolution of the ProFid, we will all see more fully how it will impact this profession, the public sector and our community.

The Case of Mrs. C

It appears that no matter how carefully we think we have planned for our old age, we can often miscalculate our needs and how long our nestegg will carry us. We offer the history of Mrs. C who was a retired banking officer, very careful in her investments and thought that she had carefully planned her old age down to the details. Unfortunately, she miscalculated and failed to take careful notice of how fast the demands of her life were depleting her life savings.

Mrs. C had returned to this area at the urging of an old friend when her husband died and she felt that his relatives were attempting to take financial advantage of her. She had been married for over 50 years, was childless, and had outlived all her other relatives so she was basically alone. Once she relocated to this State, she found that the adjustment was difficult because her friend took ill and died. She had no other friends or support system. She was a loner of sorts and the social opportunities offered in the senior mobilehome park where she bought her mobile did not appeal to her. She functioned just fine in the very beginning, but within a year or two she began to develop health problems. She lost her ability to drive, she was having some memory problems, and she was experiencing some depression that had an effect on her personal healthcare, self-care, and daily function. The biggest health care problem was diabetes.

Over a period of four years, Mrs. C had depleted her savings by paying for home health care agencies, nursing services, renting an expensive pill dispensing machine and a monthly visit by the company to fill the machine, she paid a local area on aging program to come in monthly to help her with her bills and monitor her finances, and she had to pay for transportation to get her groceries, get to medical appointments, and take care of her two cats when she was hospitalized.
When it became obvious to the home health care agency that they had exhausted her funds and might not be paid, they contacted us to help her.

When we first met Mrs. C she was in very poor condition following a recent discharge from the hospital for an upper respiratory infection and problems with her diabetes. She presented well mentally, and was upset with herself that she failed to do a better job at a longterm care plan for herself. She wanted to remain in her home til her dying day, and she did not want to be separated from her cats. However, she recognized that she needed more help and voluntarily agreed to a conservatorship. The overall goal was to formulate a plan to keep her in the home and the only remaining asset was her home.

With the consent of Mrs. C, a conservatorship was established under the supervision of the local courts. With rapid speed and approval of Mrs. C, we set about to investigate all the options to finance all the personal and medical needs necessary to remain in her home. However, we discovered something new that would alter all future care plans. The home she owned outright was not a "stick" home, but a mobilehome and she paid space rent not a homeowner association fee. Her remaining cash assets were under $15,000.00 and she had mounting expenses including a number of credit cards and a new heating unit that she had been convinced she needed. We investigated several companies that specialize in reverse mortgages, five banks regarding refinancing of the home, reverse mortgages and a line of credit. We even went to her personal banker to see if she might get special consideration as a retiree. We learned that a mobilehome prevents the owner from all of these options when the mobilehome is located in a mobilehome park because the land is rented, not owned.

As it turned out, Mrs. C was extremely disappointed that we could not draw any equity from her lovely mobilehome. Her health was dramatically affected by the diabetes and after several hospitalizations, she required convalescent care. Her personal disappointment that her old age wasn't as well planned and covered as she thought brought her much sadness. In working with her, it was apparent that she could not return home and she gave instructions on her preferences as we sought a new home for her cats, liquidated her personal property and put the mobilehome on the market for sale. She stated that she was disappointed that she did not realize the drawbacks to owning a mobilehome instead of a "stick" house, and she never realized that living in a mobilehome park could become so troublesome when her lifestyle changed.

As it turned out, Mrs. C had done a very good job in preparing for her old age, but she was unable to project the real cost of in-home care. She miscalculated when she purchased her mobilehome and had it set up in a mobilehome park. She didn't anticipate depreciation of a mobilehome, the difficulties in resale, and she never knew that an emergency refinancing, homeowner line of credit or a reverse mortgage was simply not available. She was a very bright business woman so it was nothing more than not having all the information available to her.

As we prepare for our retirement, it is important to ask more questions and anticipate the issues of advancing old age and declining health. Can I turn this home into cash if I become ill and need in-home care? Are my investments available without penalty if I should experience a healthcare crisis? Is my estate plan complete or need an update to cover unanticipated issues?

For some of us, those "golden years" and declining health places us at greater risk of fraud and undue influence. Sometimes it isn't the misinformation as much as the omission of information that we need to watch for as we make those big financial decisions. Be wary and be wise. No matter how good it all looks, seek a second opinion to review your anticipated plans and consider those "what ifs." Talk to an attorney, a trusted financial advisor, or your local Area on Aging.

The Case of Mr. B

This blog is useful in giving some case history on unique challenges that can face the private professional fiduciary. The first case we want to share is that of Mr. B and how we helped this delightful gentleman.

Mr. B came to our attention by referral from an Ombudsman while he was living in licensed guest home. He was a Polish holocaust survivor who lost all his family to the Nazi regime and spent his youth in a concentration camp until he was liberated. He was a witness to his sister's death. She was shot in the back by the S.S. as she tried to escape. His parents were put to death. Only he and his brother were considered useful as laborers. Once liberated, he emigrated to the United States, changed his name and started a new life. He came to California, got a steady job, married, started a family, and was considered a wonderful neighbor, friend, and family man to everyone who knew him. He was thrifty and managed to save up a nice little nestegg. He had bought his own home, and by the 90s, the values of real estate in his hometown had appreciated greatly so financially, Mr. B was comfortable. As he reached his Golden Years, his wife died, his only child died, and he developed some health problems. However, his life was simple, quiet but good. Then he was stricken with cancer and required surgery. Since he lived alone, he faced convalescent care until he could care for himself. The former spouse of his only child and parent of his only grandchild, along with a "significant other" decided to make the trip to Mr. B and bring him to their home for recovery. In the course of this proposed short term recovery period, he is convinced to give over $30,000 to build on another bedroom and bathroom for him to stay and in exchange he was promised a home and care for life. Within a short period of time, he is pressured to sign over a Power of Attorney for all his finances, but he refused. He is driven out to a remote part of the country and told that if he doesn't sign over a Power of Attorney and a letter to the banks authorizing release of information and funds to this former in-law and "significant other", he would be facing charges of sexual abuse of the grandchild. Mr. B, having face greater threats in his life, stood his ground and refused because he was innocent of such allegations and was convinced that he would be able to prove it. With his refusal, the former in-law drives him over to an "old folks home" and drops him off. Then they go to law enforcement and bring a charge of sexual abuse against him. Mr. B is devastated because he is weak, elderly, adamantly innocent, and realizes that he is now abandoned far away from his home. He has no friends or family who are able to help. He shares his story with the local Ombudsman who calls us.

We met with Mr. B and agreed to help him. He was physically not well, but mentally competent to execute a nomination for a conservatorship so we could address his personal needs, investigate his financial situation, preserve and protect his estate, and tackle the criminal charges of sexual abuse. We promised him that we would be there to protect and advocate on his behalf. We discovered that at the same time he was charged with sexual abuse of the grandchild, a civil suit for personal injury was also filed against him. The demand for damages was in the millions. We worked with our attorney to get a conservatorship approved, took care of Mr. B and then set about to deal with the criminal charges. We consulted with a defense attorney, met with the District Attorney, and gathered all the necessary medical records to help prove that Mr. B was not only innocent, but he was physically incapable of such a crime. The District Attorney did not file charges against Mr. B when they discovered that they did not have any evidence in support. We were successful in dealing with the criminal charges on Mr. B's behalf, but had to address the civil complaint. We retained a litigator who assisted with objections to the civil complaint, and we set about to resolve that matter. As the civil action was brought on behalf of the grandchild, we proposed to establish a testamentary trust for the child whereby she would get everything. This was always Mr. Bs intent so it was not much effort on our part, and all we had to do was get the trust drafted. However, the parent was insistent on securing controls over the estate and the plan was rejected. While this civil action proceeded in the court system, Mr. B continued to have health problems and wanted to get his affairs in order so he asked for help to prepare up a Will, attend a synagogue and take care of his burial plans. Mr. B prepared his Will and provided that everything should go to the grandchild, and this document provided for a testamentary trust for the child. In the end, the greedy and manipulative parent of this grandchild did not succeed in blackmailing this elderly man out of his life savings after all. After Mr. B's death, the civil suit was resolved with no financial benefit to anyone except the child. It was a long and difficult challenge, but a promise is a promise. We stayed the course for the benefit of Mr. B as we assured him that we would do and with total success. He died with his good name and reputation in tact.

One of the delightful benefits to working with Mr. B was his heritage and helping him with his requests to go to Temple and take care of his burial plans. Mr. B was wonderful and that heavy Polish accent. . . he sounded like Bella Lugosi. He was hard of hearing too so everything he said was loud enough for people a block away to hear. In this area, there are very few Jewish synagogues, and not being Jewish, we were clueless about many things. However, we got help. We contacted one synagogue, and met with the Rabbi. We got the information and made arrangements to personal transport and attend the services with Mr. B. This congregation is of modest size in attendance, but the people were warm, welcoming and wonderful. We loved the Rabbi who not only embraced Mr. B but, he taught us, directed us and advised us on every aspect of the religion so we could help Mr. B. Mr. B hoped for our conversion before he died. . . if the truth be known. We had so many interesting and positive experiences with this part of Mr. B's life and he was truly happy. In no time, he was considered a treasure with this congregation and he offered the blessing on the bread every Friday's service. When he died, the Rabbi was wonderful to help us to conduct a proper burial for Mr. B. The Rabbi treated us as family and instructed us on the traditions and time tables. We only had one request and that was from Mr. B who didn't want dirt and rocks thrown in his face. We assume that was a fear that came from his youthful experience in a concentration camp. And so it was done as Mr. B requested.

As a private professional fiduciary, we meet new challenges regularly, but we meet some of the most wonderful individuals. Mr. B was one of those who generated warmth, humor, kindness and love. He loved to take pictures with his camera, he loved to sing, he loved people and he loved his culture and faith. He was a sharing type of person. Despite his hardships in life and surviving the horrors of the Holocaust, he was a ray of sunshine, a delight to know, and gave greater meaning to our lives just for being Mr. B.

Holiday Thoughts

During the holiday seasons, we reflect on others who are less fortunate and reach out to others with generosity. Most of the focus is generally on the children, and that is appropriate, but inside each of us regardless of age, is the child within. We all respond to random acts of kindness. Most of our very elderly population seem to be uninterested in the holiday seasons, but most of the time, that isn't the case. They have just lost track of that holiday spirit because of a loss of family, lack of participation in the social circles they used to enjoy, or just due to poor health and depression. For many, poor health, functional decline and dementia will result in life in a convalescent facility where the only socialization they receive is from the staff. I know personally, that the staff who care for our elderly do an outstanding job and basically go above and beyond the call of duty to make the lifes of the elderly more comfortable. However, many folks are lonley and are forgotten or, at least they feel forgotten.

This is an opportunity for each of us to make a difference in the lives of another. Individually or in a group, we can adopt an elder and spend time with them in reading, listening to music or just allowing them to visit with you about their past and most pleasant memories. You can be the one to rekindle the love, warmth and spirit of the holiday season to the inner child of that elderly man or woman. You can reach out to remember them on their birthday, Mother's Day or Father's Day, and if they are a Vet, you can make that Memorial Day or Veteran's Day personal and memorable to them. If you decide to purchase a gift for the holidays, make sure that it is useful to them, and once it is received be sure to mark it with their name & let the staff know so they can list the item on their inventory sheet. If your elder lives in a convalescent care facility, it is easy to become lost. Items that are always appreciated in a licensed facility are: lotions, scented body wash or powder, after shave or colognes, slippers, writing supplies like pens, stationary with postage, newspaper subscriptions, magazines or books on tape for the visually impaired, crossword puzzels books, music on CD, or a lap blanket. Most needs are so modest and those items are not standard part of the care. If you have found a little elderly person who lives on his/her own or in a residential facility, you can do the same but you can mostly likely bring in homebaked goods, or take them out for a drive in the country, or to the corner cafe for coffee. Everyone enjoys a plant or bouquet of cut flowers. Give a little of yourself to someone who touches your heart and just see who really reaps the greatest benefit.

Be An Informed Consumer

All to often, we find ourselves dealing with a family situation that we either did not notice or simply wanted to deny. It happens to all of us. One day we recognize that mom or dad can't remember where they put their car keys and the next day they can't remember where they put the car. Sooner or later it becomes our obligation to watch out for our parents. When that day arrives, we are seldom prepared. We don't know where to go or who to get advice from. Sometimes we go to neighbors and friends, and sometimes we rely on our family doctor or family attorney. Everyone means well, but the one-size-fits-all plan is just never quite good enough when it comes to our own family members. We want the best for them, and that is the way it should be.

Be an informed consumer when it comes to helping mom or dad. Check out all the community resources, educate yourself on the various options for home care or assisted living facilities, and don't be afraid to consult with a private professional geriatric case manager, private fiduciary/conservator, or an elder law specialist.
Consult with the family doctor to determine mom or dad's problem as to cause and treatment plans. Gather the family together to discuss how the family can help and what is needed. Once you have a general plan, you can work on what the cost will be to make the plan workable for that family member. Sometimes it is simply having someone come in to help with cooking and heavy cleaning a few hours a day or while you are working. Other times it may involve more time and assistance in household chores or personal care, like bathing, dressing and ambulating. It may even involve a graduated level of care as time goes by from a limited amount of assistance to licensed residential placement or skilled nursing. Whatever the need may be, once you are familiar with the resources in your community, you will be a better informed consumer and will feel more confident about helping your own family member.

Do I Really Need a Lawyer?

If you ever find yourself in a position where you think you might need to hire an attorney, be an informed consumer. If you were sick and thought you might need surgery, would you take the medical advice of the first doctor you see or would you seek a second opinion? Well, in a sense, if you are dealing with a family issue and it appears that legal counsel might be needed, do the same.

Shop around, spend the time and money to interview attorneys to discuss your case and see what they say. Ask questions about their legal expertise. Get recommendations from friends, the local Bar, a local lawyer referral service, or consult with other private professional conservators. You can also tap into your local superior court web page to see if they have resources that you can consult.
Sometimes you can even go to the court's webpage and type in the name of an attorney to see what cases they have been involved in over a period of time.
You can often find a probate or elder law attorney in the Yellow Pages too.

Once you find someone you think you might be able to work with, I suggest that you not only interview them, but go to court and watch them in action. Some attorneys are wonderful on paper, but do not present well on the floor of the courthouse. You will also want an attorney who has a good reputation with the court. You can always check with the Local Bar and/or your State Bar to find out if there are any complaints filed against the attorney of your choice. The attorney is going to be paid big bucks to represent you, so buyer beware. Take the time to make sure that you are going to get your money's worth.

Here is my experience with lawyers. Most attorneys are like anyone else, they have their own area of expertise. Not all attorneys are equal. Just because they advertise that they are probate or elder law attorneys doesn't mean that they excel in their field. There is a clear difference between a probate or elder law attorney and a litigator. Interview the attorney of your choice and ask lots of questions. Ask what hourly rate they charge or is it a flat rate up front, and if so, what can you expect for the fees? If you are seeking conservatorship, make sure that they are not demanding payment from mom's funds up front. We generally retain services of our attorney and he is paid after court approval once the conservatorship proceeding is complete and a minimum of 90 days after our appointment and Letters are issued.

If you are in a family dispute and seek legal counsel to resolve problems already developing, pay attention to the red flags when seeking legal counsel. A really good attorney is going to try to resolve issues outside of the courtroom first and pursue a legal action as a last resort. Any attorney who wants to deal with a dispute by scheduling depositions right up front and then pursuing discovery (demand for production of documents, etc.), and demanding an evidentiary hearing (a trial). . . .that should be the first red flag and it should be clear by the sound. Cha-ching, cha-ching. . . .that is your legal meter running and you have just met a litigator. You can be sure that there are some litigators that are wonderful and they will work with you to minimize costs and resolve the issues in a reasonable manner, but there are some that don't. Watch out for the attorney who is not willing to entertain any efforts to resolve problems, discuss mediation or settlements.

Family fighting can be the fastest way to deplete the family estate and divide the family forever. It can be the fastest route to putting mom or dad on public assistance too. Everyone loses except the attorneys. If you are angry and need to vent, seek professional therapy with a licensed family counselor, not the attorney. But if you do need an attorney, be an informed consumer and make sure that you know who you hire, what to expect and what it will cost.