Elder Law

Elder law touches the life of every senior.  It governs what rights and benefits a senior is entitled to from the government, protections from financial and physical abuse, and ensuring respect for life-planning decisions. For lesbian, gay, bisexual, and transgender elders, California and federal law provides protections based on sexual orientation and gender identity.

two_older_men_640wJohnston, Kinney & Zulaica, LLP brings a depth of experience to elder law issues.  We’ve represented elders and their families in a variety of contexts, and we’ve worked in the courts, the legislature, and in the community representing elders and their interests.

Past work includes:

  • Representing clients against bank malfeasance
  • Fighting for elders who have unwittingly lost control of finances to abusers
  • Working to expand Medi-Cal spousal impoverishment protections to same-sex couples

Johnston, Kinney & Zulaica LLP is committed to protecting the rights, needs, and dignity of the aging population. To this end, Johnston, Kinney & Zulaica, LLP offers competent, sensitive representation in the following areas:

  • Estate Planning;
  • Asset Protection;
  • Special Needs Trusts;
  • Medicare and Medicaid Benefits;
  • Social Security and Retirement Benefits;
  • Conservatorships; and
  • Elder Abuse, including defense against illegitimate claims of elder abuse.

If you are an elder or someone with questions or concerns regarding the potential abuse of an elderly person, please contact our office.

To read articles by Johnston, Kinney & Zulaica LLP attorneys, also see:

LGBT Estate Planning with Horizons Foundation: Philanthropy Series

LGBT Estate Planning with Horizons Foundation: Philanthropy Series

Thursday, October 23, 2014
555 California Street
8th Floor, Conference Room
Merrill Lynch
San Francisco

6:00 – 6:30 p.m. Hosted Reception
6:30 – 8:00 p.m. Panel Discussion

LGBT people often have particular challenges and unique opportunities when it comes to estate planning. Whether you’re young or…not exactly young, single, married, or RDP’d, this session is designed to answer all of your burning questions.

Estate planning attorney, Deb Kinney will give you important new information and address the thornier issues, like:
• How is planning different in a post-DOMA world?
• Who should make decisions for you when you can’t?
• How can you leave YOUR legacy – even if you don’t have children?

You’ll also hear from Horizons’ board member, Erin Flynn, who will share from the client’s perspective how the planning process really works.

There will be lots of time for interactive discussion, so bring your questions, and be ready to get the answers. We guarantee this won’t be your average Q&A!

Please RSVP by Tuesday, October 21, 2014 via email.
For questions, please contact Jenna Heath via email or 415.398.2333 x115

Horizons Foundation

Caregiver Statute

California Probate Code Section 21350, also known as the Care Custodian Statute, presumptively invalidates testamentary gifts (gifts left in a will or a trust or even by beneficiary designation) made by an elder to individuals who provided health and social services to the elder. Health and Social services is very broad and can include daily assistance to an elderly person. For purposes of the Care Custodian Statute, “elder” is defined as any individual over the age of sixty-four whose physical and/or mental abilities have diminished as a result of age.

The purpose of the Care Custodian Statute is to protect elderly individuals from predatory people, who would otherwise abuse the reliant, trusting nature of the care custodian relationship to manipulate the elder into giving the care custodian a portion, if not all, of the elder’s estate.

While it is exceedingly important to protect elderly individuals from opportunistic care custodians, not all gifts made by elders to care custodians are suspect or inappropriate.  Indeed, it is common for an elderly individual to desire to provide for the individual(s) who assisted the elder as he or she aged and required additional support.  It is also common that the persons named in an elderly person’s will or trust years ago are those exact persons who later do want to care for the elderly person. In order to protect the elder, the Code requires that gifts made to these people be independently reviewed by an attorney to ensure the elder knowingly made such gift happily and voluntarily.  Persons who are exempt from such review include the elder’s spouse, registered domestic partner, or persons related to the elder by blood.

Additional exceptions are available under the California Probate Code for testamentary gifts from an elder to a care custodian; however, these exceptions are very fact specific and should be discussed with an attorney.

An independent review by separate counsel is not a lengthy or difficult process, but is quite necesssary to ensure that the gift is properly made.

If you are interested in obtaining information regarding the Care Custodian Statute or would like to discuss the process of independent review, please feel free to contact us.

Financial Elder Abuse

Elder financial abuse occurs when an individual or entity exploits an elderly individual by preying on the elder’s age-related vulnerabilities, such as impaired mental capacity or emotional dependence.

Elder financial abuse is typically committed by a person the elder knows and trusts, such as a family member, friend, caregiver, banker, or nursing home employee.  The abuser commonly manipulates the elder into prematurely selling his or her assets, giving the abuser the elder’s money and assets either through gifts or supporting them, or changing the elder’s estate plan to leave the elder’s estate to the abuser.  Those with such mal intent  also often withhold the elder’s money for daily necessities and/or alienate the elder from his family and loved ones, thereby making the elder dependent upon the abuser.

Elder financial abuse may also be committed by businesses and organizations.  An example of this form of abuse is a financial institution that targets and intentionally sells financial products to elders, which are unnecessary and often financially detrimental or devastating.

While elder financial abuse is egregious and abhorrent, it can be difficult to discover.  Indeed, elder financial abuse often goes unnoticed, because the abused elder either may not realize that he or she has been victimized or he or she may be too afraid and/or embarrassed to admit that he or she has been victimized.  The following are potential signs of financial elder abuse:

  • Increased, uncharacteristic withdrawals from the elder’s financial accounts;
  • Increased, uncharacteristic use of the elder’s credit card;
  • Changes to the designated beneficiaries on the elder’s accounts, particularly to include either a caregiver or new “friend” of the elder;
  • Authorization of new signors or authorized users on the elder’s financial accounts;
  • Adding a caregiver or new “friend” to the title of the elder’s properties and/or vehicles;
  • Recent changes to the elder’s power of attorney, health care documents, will, and/or trust, especially if the documents were changed to include the elder’s caregiver or new “friend”;
  • The elder is increasingly introverted and or depressed;
  • The elder is less willing to discuss matters he or she once discussed regularly and without hesitation;
  • The elder’s caregiver or new “friend” restricts the elder’s access to family, friends, and social activities;
  • The elder’s caregiver is overly interested in the elder’s finances or estate planning; and
  • The elder allows a caregiver or new “friend” to speak on his or her behalf and to handle the elder’s financial affairs.

While there are an increasing number of laws to protect elders from this kind of abuse, the lack of transparency often makes it hard to discover until well after the acts have been committed.  Elder financial abuse is generally governed by civil laws and remedies, and severe acts of elder financial abuse can result in criminal punishment.

If you or someone you know may be the victim of financial elder abuse, or if you have questions regarding financial elder abuse, please contact us.