Case Review: Tepper v. Wilkins – How Standing Impacts Litigation in Elder Abuse Actions

This case involves an intrafamily dispute where one sibling brings a suit claiming the other siblings are committing elder abuse against their mother. Eileeen has four children involved in this action: Geoffey, Derek, Martha, and Belinda. All the children but Belinda are serving as co-trustees as of Eileen’s revocable living trust.

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Belinda brought a suit against her siblings claiming elder financial abuse, but Belinda did not claim she was harmed personally by the siblings’ actions, nor that she had standing as Eileen’s attorney-in-fact or conservator to bring the claim.

The Second District Court of Appeal reviewed Belinda’s appeal under the Elder Abuse and Dependent Adult Civil Protection Act, Welfare and Institution Code § 15600 et seq. Special standing rules apply under the Elder Abuse and Dependent Adult Civil Protection Act, including that an action can be brought either by the elder or the elder’s personal representative when the elder is alive and lacks capacity or is of an unsound mind.

The elder’s personal representative, however, is not just anybody with a familial relation to the elder. Rather, the personal representative is one who is either “(1) [a] conservator, trustee, or other representative of the estate of an elder or dependent adult” or “(2) [a]n attorney-in-fact of an elder or dependent adult who acts within the authority of the power of attorney.” (§ 15610.30, subd. (d)). An intestate heir affected by the action may have standing to bring a claim, but standing only arises after the elder’s death.

The court concluded that Belinda had no standing to bring the claim because Belinda was not Eileen’s conservator, trustee, other representative, or an attorney-in-fact. Rather, simply because Belinda was Eileen’s daughter did not afford her standing under the Elder Abuse and Dependent Adult Civil Protection Act.

Tepper v. Wilkins is case number B269900 and was filed on April 19, 2012 in the Second District Court of Appeals.

I recommend working with an estate planning attorney to ensure your trustees or power of attorney is properly in place and explained to all affected family members to avoid intrafamily disputes. Litigation under the Elder Abuse and Dependent Adult Civil Protection Act is a costly endeavor – both financially and emotionally.

-BDR

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Brian Russ is an estate planning attorney in West Sacramento, Yolo County, California. Call today to schedule an estate planning consult: (916) 750-5155.

Original post date: February 5, 2018.

Case Review: Estate of Shellenbarger – How A Deadbeat Dad Can Get A Windfall Payday

If you don’t have will, then your personal belongings will be disposed of according to the relevant statute in place at the time of your death. This is called intestate succession. Lelsley Shellenbarger died at the age of 42 without a will. Lesley died in California, so his property passed according to California’s Probate Code.

pexels-photo-256621In California, intestate succession is governed in part by Section 6402 of the Probate Code. Section 6402(a)-(b) provides that if the person dying has no issue (children, grandchildren, etc.), then the property passes to the person’s parent(s). The Probate Code does not dictate how the property should be passed to the parents of if any exclusions apply.

Lesley Shellenbarger passed away without any children, and both of his parents survived him, so all of his property thereby had to pass to his parents, Lesley’s father left the family when Lesley was very long and, according to Lesley’s mother, his father did not pay any child support. Per modern colloquialism, Lesley’s father might be known as a “deadbeat dad” (see Urban Dictionary).

Despite effectively abandoning Lesley, Lesley’s father was still his natural parent and his parental rights were never terminated. Therefore, upon Lesley’s death, his father was entitled to a share of Lesley’s estate.

Estate of Shellenbarger illustrates the importance of drafting a will to avoid an undeserving person from receiving a share of your estate upon your death. A simple will that expressly disinherits a deadbeat parent or deadbeat dad could be sufficient, depending on the circumstances.

Estate of Shellenbarger is cited as 169 Cal. App. 4th 894 (2008).

-BDR

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Brian Russ is an estate planning attorney in West Sacramento, Yolo County, California. Call today to schedule an estate planning consult: (916) 750-5155.

Originally published on February 10, 2018.