Nursing Home Neglect

In this program, presented by the Trusts and Estates Section and the Elder Law Committee, Gary L. Gebler of Gebler & Weiss will discuss the neglect that occurs in nursing home facilities.

Date: December 13, 2011
Location: LACBA Offices

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During our recent Probate Symposium, Judge Mitchell Beckloff provided his view regarding the impact of Kucker v. Kucker (2011) 92 Cal.App.4th 90, 120 Cal.Rptr.3d 688 (2011), on future Heggstad Petitions under Probate Code Section 850. In Kucker, in dicta, the court held that a general assignment that does not specifically identify real property would be ineffective to transfer such real property to the trust. When asked his view regarding petitions to confirm title of real property, Judge Beckloff indicated that there appears to be no reason not to follow the dicta in Kucker. Accordingly, now may be the time to follow up with your clients and advise them to confirm that all real properties are properly titled in the trust, or at the very least, make sure the real properties are sufficiently identified on the trust property schedules or assignments.

Cases appear in chronological order, with the oldest case appearing first.

Trusts and Estates
In a Lanterman-Petris-Short Act reestablishment proceeding, a request for a hearing does not constitute a demand for a court or jury trial absent a statement by the conservatee or his or her counsel expressing a contrary intent. Although trial court erred in interpreting conservatee's request for a hearing on conservatorship petition as a demand for a court trial, conservatee waived or forfeited that error by not objecting to it and instead appearing at and fully participating in the court trial. Conservatee's claim that he was erroneously denied the right to a jury trial after requesting a hearing on conservatorship petition was moot where conservatee was no longer subject to a conservatorship; however, since the issue presented by his appeal is capable of recurring but evading review and involves a matter of general public interest, appellate review was merited.
    Conservatorship of Joseph W. - filed October 3, 2011, Fourth District, Div.
    One
    Cite as D057900
    Full text

Trusts and Estates
Heirs," for purposes of Probate Code Sec. 21351(a)--whereby heirs are excepted from the rebuttable presumption that a transfer to a care custodian was procured by fraud, duress, or undue influence--include a person identified as the transferor's successor under a rule of succession, regardless of whether the transferor's estate contained the type of property distributed under the rule.
    Hernandez v. Kieferle - filed October 31, 2011, Second District, Div. Four
    Cite as 2011 S.O.S. 5935
     Full text

Real Property
Where defendant trustee, acting as beneficiary's agent in preparing property for foreclosure sale, submitted incorrect credit bid to the auctioneer, and twice confirmed the incorrect bid when the auctioneer called to inquire just prior to the sale, such error was wholly under trustee's control and arose solely from its negligence, so there was no procedural irregularity in the foreclosure sale and trustee's motion for summary judgment in purchaser's action for quiet title, specific performance, and declaratory and injunctive relief should have been denied.
    Biancalana v. T.D. Service Company - filed October 31, 2011, Sixth District
    Cite as H035400
    Full text

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