Elder Law: Local Rules of Court & Other Resources

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With the onslaught of the population explosion in the 65 and older segment in our society and the fact that baby boomers have now successfully entered senior citizenship, elder law and the issues that accompany it are firmly on the forefront of the practice of law.

Virginia M. George

Issues such as conservatorships, housing, Medicare, capacity, and elder abuse all tie into this growing field of law. The newer practitioner can avail him- or herself of an abundant variety of resources both on and off line in order to become better educated and equipped at representing elderly clients and/or their families in the host of issues that they may be facing.

This article will generally address several key areas, issues and resources for the attorney who wishes to learn to navigate the field of elder law.

FIND A MENTOR

Given the potential complexities of a given case, it is advisable to find a mentor. Mentoring is the process where an experienced professional takes a protégé under his or her wing to assist that person in developing business acumen and judgment, as well as in career development in a particular field of law. If developed outside a law firm, mentoring can be an informal, but highly important process where the apprentice learns not only the subject matter, but appropriate business and professional skills. Mentoring offers advantages to the newly-licensed attorney as well as the seasoned attorney switching fields of specialty. Both types of practitioners will find mentoring equally beneficial in the field of elder law.

JOIN A SECTION

Secondly, it is advisable to join one of the applicable sections of the local bar association in the county[ies] in which one practices. Appropriate alternatives would include the Elder Law Section; Conservatorship, Guardianship, Probate and Trust Section and the Pro Bono section of the local bar association. Joining a section offers key networking opportunities as well as the ability to keep current on legal issues and updates. Referrals and/ or the opportunity to work as co-counsel on elder law cases are also advantages of joining an appropriate section.

KNOW YOUR LOCAL COURT RULES

Additionally, it is critical to become familiar with the local rules of court in general and the rules of court as they pertain to the probate court in particular. In addition to the standard rules of probate, there have been new additions and amendments as of January 1, 2011. Two examples of such amendments in the Contra Costa County Superior Court Local Rules include:

Local Rule 106 which defines deadlines for documents to be considered in response to the probate department’s tentative rulings. Currently, tentative rulings are posted online three court days in advance of the hearing. This new Local Rule, effective January 1, 2011, requires that in order to be considered, responses to tentative rulings must be filed no later than the close of business two court days before the hearing and endorsed filed copies must be delivered to the probate file examiners.

Attachment 2 – Probate Department Fees and Costs Guidelines. Effective January 1, 2011, attorney fees for conservatorship and extraordinary probate services provided on or after that date has risen to $325.00 per hour. Professional fiduciary rates have increased to $125.00 per hour and non-professional fiduciary rates have increased to $40.00 per hour.

KNOW YOUR LOCAL COURT DEPARTMENTS

It is also important for newer practitioners to familiarize themselves with the types of cases over which particular court departments preside. In Contra Costa County, the Probate Department hears pre-trial matters dealing with conservatorships, guardianships, and probate matters such as petitions surrounding issues with respect to wills and trusts. Probate matters are generally heard on Monday, Tuesday and Thursday. Conservatorships and Guardianships are heard on Wednesday and Friday. Given the significant rise in the reporting of all types of elder abuse, a separate department (currently Department 22, Hon. Joyce Cram) handles all elder abuse matters, including civil and criminal matters and restraining orders, each Tuesday. New practitioners are encouraged to sit in on a variety of these calendars to become familiar with the court process as well as the types of cases heard.

KNOW APPLICABLE CIVIL STATUTES

It is critical to be familiar with the applicable civil statutes for elder abuse. In 1991, California lawmakers enacted a unique form of legislation specifically aimed at deterring acts of abuse and neglect of elders and dependent adults. This set of laws, commonly referred to as California’s Elder Abuse Act, is more formally known as California’s Elder Abuse and Dependent Adult Civil Protection Act [“EADACPA”] and is found at Welfare and Institutions Code Sections 15600 et. seq.

In order to deter acts of elder abuse and neglect, these civil statutes provide additional recovery against defendants who are found liable for such abuse or neglect upon the elderly or dependent adults. Specifically, EADACPA includes provisions for recovery by victims of abuse and/or neglect, even in circumstances where the victim has died. Additionally, EADACPA provides recovery for all attorneys’ fees and costs expended in a case where a claim of abuse and/or neglect is successfully proven.

KNOW APPLICABLE CRIMINAL STATUTES

It is also advantageous for attorneys to be generally familiar with the companion criminal statute which governs elder abuse and neglect: Penal Code Section 368. Criminal defendants can be potentially charged with either misdemeanor or felony elder abuse should the district attorney’s office decide such charges are warranted.

UNDERSTAND CONSERVATORSHIPS

Attorneys interested in learning more about conservatorship matters should become aware of the different types of “general” conservatorships (both of the person and the estate) as well as the types of cases which are classified as “limited” conservatorships. Included in such an understanding would be the common types of persons who may require a conservatorship. These individuals possibly include a person who is elderly, developmentally disabled, drug and/or alcohol impaired or injured. Given the magnitude of this subject alone, sufficient time and space is not available to adequately give a complete overview. However, practitioners should be well-versed in issues regarding capacity (including possible dementia); bond amounts and requirements; duties of the proposed conservator; housing; and, accounting of assets. Appropriate starting sections to review are Probate Codes Sections 810, 811 and 813 for Conservatorships, including general capacity definitions; and Probate Code Sections 2252, 2354, 2355 and 2357 for medical powers and related issues. Limited conservatorships are generally governed by Probate Code Section 2351.1.

OTHER RESOURCES

Finally, there are a host of resources available to newer as well as seasoned attorneys in the area of elder law. A few suggested resources are:

  1. The National Academy of Elder Law Attorneys [“NAELA”] A professional association of over 4000 attorneys in the private and public sectors, as well as judges professors of law, and students. On line resources, publications, events and continuing education are abundantly available. http://www.naela.org.
  2. California Advocates for Nursing Home Reform [“CANHR”] A statewide non-profit advocacy organization for California’s long-term care consumers. A great deal of CANHR’s clients and issues surround the elderly. On line resources, publications, events, current litigation and pending legislation are all available for review. http://canhr.org.
  3. Conservatorship Workshops in Contra Costa County Sponsored by The Professional Fiduciary Association of California [“PFAC”] Over the course of the next several months, PFAC will be sponsoring one-day workshops covering Conservatorships of the Estate and of the Person at the Contra Costa Public Law Library in Martinez. The workshop runs from 9:00 a.m. to 4:30 p.m. Further information can be gained by either calling the Law Library at (925) 646-2783 or visiting their website at www.ccpllib.org.

- For the past year, Ms. George has been sitting as judge pro tem in the Probate Department for Contra Costa Superior Court. She has a law practice in Walnut Creek and specializes in probate, estate planning, conservatorships and elder law.

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