Judge Paul opened the meeting by indicating that it was not possible to address all of the issues raised by the possible consolidation of Probate cases to downtown Los Angeles. This is a long process that is still under consideration. January and February 2013, at least, we expect to continue in the district courts and likely through June. A large number of issues need to be dealt with to determine if the proposal to consolidate is the best answer to the financial issues of the court or if there is a better way. If there is another way, or if some of the issues to be resolved are insurmountable, is there an alternative? Are there issues which have not even been considered? (Click here for the latest update on the California Probate Court Consolidation as of March 21, 2013)
Next, our speaker, Keith Wisbaum of Robinson and Wisbaum, one of the leading attorneys in the Elder Law area, spoke to us on elder law issues and temporary restraining orders (“TROs”).
He says that water is hot at 211 degrees, but at just one degree higher, it boils. It is the same with elders. There are a lot of issues surrounding elders and not all take court action to resolve, although some do. The Elder Abuse Restraining Order is a fast and unique remedy.
The TRO can be used to stop abuse, to restore relationships that have been splintered over perhaps many years, provide medical interventions, move puzzle pieces around, and allow strategic intervention.
California Welfare and Institutions Code section 15610.07 defines what “[a]buse of an elder or a dependent adult” means, and it allows a huge number of people to file for a TRO. The forms are the easiest part of the process.
Before you even start with a family, get behind the scene–Is the situation fixable? Many things fly right under the radar. Dad died. Mom has limitations and the deadbeat son has nothing to lose in getting mom to sign for a loan and running off with the cash. There is a lot of dirty stuff going on.
A TRO is just a piece o f paper. Make sure you are not making a bad situation worse. Quietly piece the information together. How is the senior being hurt? Segregated, denied medical care?
In many situations, the parent is no longer able to parent the way they used to, but they are still Mom or Dad.
Follow the money. Is there a lot of “fraudulent emotion” going on? Is someone being nice only to get to the money? The abused person often will not be complaining. The senior may even be comfortable and think the bad situation is better than the alternative. What is really in the best interest of the senior? What does the senior want? What does your gut tell you? What can you solve by being creative?
The TRO is good for up to 21 days and the permanent restraining order is good for up to 5 years. If you pursue a restraining order, can you couple it with agreements for visitation? Can you get the abuser to cooperate? Can relationships be restored to help through more than the immediate problem? Can we avoid embarrassment to the senior and the abuser who may already be pretty well down in life?
Be honest with your client. These are risky and unpredictable and will have a long-term effect. These people may not realize that this type of situation has the ability to explode like a hand grenade.
The client who is the good guy may lose-out in the long run. No good deed goes unpunished. The senior may end-up hating the honest child, even if that child “wins.” If the client does not understand your position and is not on board with all of this, no check they might pay you is big enough.
You need names of family, neighbors, friends and care providers to gain insight into the situation and formulate possible creative solutions.
There are conditions under which you can get TROs without notice. These require preliminary showings of harm to the senior. Is the abuser in the house? Is the abuser the one that provides the meals, care, medication? Who is going to take care of those things if the abuser is tossed-out?
Sometimes a cover letter can be served along with the TRO explaining to the abuser that you would like them to call you and discuss the problem and what can be worked-out without court, lawyers, or disruption. If they do not reply, you can call them yourself. Let them know the issues that are of concern, and that they can get a lawyer or try to work through some solutions.
All of this is post-TRO, but before any further court hearings in an attempt to get some solutions before being back in court. Sometimes TROs are extended and permanent hearings are postponed if agreements are being worked-on.
Courts love agreements. TROs can be extended over and over (he has had one extended over a year in total, 21 days at a time, 3 court appearances) while things with the abuser are addressed and improved, and agreements were reached.
John T. Anderson, Section Chair
LB Bar Assoc. Estate Planning, Trust, and Probate Law Section
Certified Specialist in Estate Planning, Trust, and Probate Law by the
State Bar of California Board of Legal Specialization