The End of Life Option Act and Undue Influence: Michael Fedalen Authors Article in American Bar Association’s GPSOLO eReport

On June 9, 2016, the state of California passed the End of Life Option (EOL) Act, which allows a terminally ill individual who has a life expectancy of six months or less to end their lives with dignity by taking end-of-life drugs. In his article “Issues with California’s End of Life Option Act,” published in the American Bar Association’s GPSOLO eReport, Michael Fedalen discusses how the problem of undue influence could affect those who choose to take advantage of the EOL Act.

“The very rules put in place to protect people from being coerced into taking end-of-life drugs may backfire,” said Mr. Fedalen. “It is possible for people who don’t want to wait for their inheritances to knowingly inflict undue influence on someone to coerce them into requesting suicide drugs.”

Since it would be difficult to prosecute an individual for undue influence, Mr. Fedalen offers some solutions. Protections for the terminally ill can be improved by modifying certain provisions of California law in order to prevent people from taking advantage of the End of Life of Option Act. He also suggests classifying undue influence as a form of elder abuse.

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HFL Law Group Opens Century City Office

HFL Law Group is pleased to announce the opening of its Century City office. Since opening its doors in 2008 in Encino, the firm has represented clients through litigation in many areas, including probate and trust, financial elder abuse, business, real estate and intellectual property. Founder James Fedalen’s family has been practicing law in Los Angeles for nearly a century, a legacy that continues with Associate Michael Fedalen, who joined the firm in 2013. Moreover, Principal Patrick Huang has achieved the highest rating for legal ability in Martindale-Hubbell and is a recipient of the American Jurisprudence Award in Remedies.

“We are proud to announce the firm’s new office, which is a milestone in the growth of our practice,” said Managing Partner James Fedalen. “Though we have been located in the Valley, we work with clients throughout Los Angeles, and opening an office in Century City is a natural step for HFL.”

The Century City office is located in the heart of Los Angeles at 1880 Century Park East, Suite 615, rendering HFL Law Group’s services conveniently accessible to many clients.

James Fedalen Named Attorney of the Year by San Fernando Valley Business Journal

Recognized for his long history as an astute advisor to his clients, Partner James Fedalen has been named Attorney of the Year by the San Fernando Valley Business Journal.  Mr. Fedalen was recognized at the 2016 Trusted Advisors Awards for his extensive body of work in financial elder abuse, estate and trust matters, and business and real estate litigation.

The Trusted Advisors Awards honor the important work of accountants, bankers, attorneys, insurance professionals and wealth managers in the greater San Fernando Valley region.

Michael Fedalen Discusses Loopholes in the End of Life Option Act on KNX 1070

As a guest speaker on KNX 1070’s Ron Kilgore radio show, Michael Fedalen discussed loopholes in the End of Life Option Act. There are many protective provisions in the Act, but the same rules put in place to protect people may actually make it difficult to prove that they have been coerced into changing their estate plans or even taking suicide drugs.

In order to combat elder abuse stemming from the Act, Mr. Fedalen suggests that preventative measures should be taken, such as making changes to the Probate Code as well as the Welfare and Institutions Code. Moreover, the Act should require a greater investigation into an individual’s circumstances before declaring them free of undue influence since it is possible for an individual to isolate the person seeking drugs while exerting undue influence without a doctor’s knowledge.

“What happens when there are two doctors who are ‘independent’ of one another, but who work together, and who hold strong personal beliefs in favor of allowing suicide? What if, for example, the previous 10 doctors all said no? There is nothing I see in the Act to prevent doctor-shopping,” said Mr. Fedalen. “More needs to be done in order to better protect individuals under the Act.”

About the Elder Abuse Act

by Michael Fedalen

Injuries and abuse in nursing homes because of under-staffing and neglect are all too common. In the past, victims in nursing homes had limited recourse or recoverable damages. Under traditional tort principles, pain and suffering damages do not survive the victims’ death. This created a perverse situation where it was better for nursing homes if residents did not survive injuries. Even when victims survived, their lack of earning potential and generally short expected life spans, both typically used to measure monetary damages, limited any meaningful consequences for  nursing facilities. Families of victims who died were similarly limited in their ability to recover damages.

In response to this problem, the California Legislature passed the Elder Abuse and Dependent Adult Civil Protection Act. However, since its passage, the nursing home industry has worked to evade liability by pushing arbitration agreements on residents and lending its significant financial leverage towards enforcing these agreements.

Often when people move into nursing homes they no longer possess the mental wherewithal to understand contractual paperwork. Nonetheless, when no one else is present to sign for them, or when the nursing home has careless or pernicious motives, elders are often made to sign arbitration agreements.

Even when a person holding power of attorney or a relative is asked to sign, it is often implied that the agreement is a condition of admittance. As nursing homes are a last resort for many, believing that the home could become unavailable if an arbitration agreement is refused contributes toward obtaining compliance.

ARBITRATION AGREEMENT PROBLEMS

There are four primary problems with the agreements:

(1) Arbitrators are private professionals working for profit.

While the majority of arbitrators are honest and seek to avoid bias, that is not always possible. Most nursing home claims are defended by a small number of firms working on behalf of insurance companies, and the attorneys involved tend to know the arbitrators. Both nursing home and injured party have a say in selecting the arbitrator. There are not many repeat victims of nursing home abuse, but the same nursing homes, with the same attorneys, often have more than one case per year. Arbitrators who are tough on abuse are not likely to be hired again.

(2) Enhanced damages are generally unavailable.

Traditional principles governing damages for wrongful injuries do not work well in a nursing home context. One of the major reasons the Act was passed was to make attorneys’ fees available in cases of elder abuse. This has increased the pool of recoverable damages available, so that compensation to the victim is fair and attorneys are more willing to accept these cases for clients who cannot afford hourly billing.

(3) Arbitration is private.

nursing home abuse records are public. There is a public benefit to accessing accurate information about rates of abuse within nursing homes. This benefit becomes meaningless when victims are forced to arbitrate because accurate information becomes unavailable.. While elder abuse settlements are not confidential under California law, arbitration tends to keep the information from being effectively reported. Code of Civil Procedure Section 2017.310.

(4) Victims are unlikely to prove their cases.

The rights to discover information related to claims and defenses in a case are broad in California. If a nursing home abuse case is being heard in court, the plaintiff can access nursing home records, and may take the depositions of any person with relevant knowledge. In arbitration, parties are limited to whatever information the arbitrator decides they may access, which is often inadequate to prove a case.

FEDERAL ARBITRATION ACT

California courts have shown willingness to refuse to enforce nursing home arbitration agreements on the basis of unconscionability for being overly harsh, one-sided, or unduly oppressive. Unconscionability is a standard contract defense that seems to apply under these circumstances.

However, federal courts have consistently rebuked California for its resistance to enforcing the agreements by holding that these efforts are preempted by the Federal Arbitration Act.(Att v. Concepcion). . California attempted to make all pre-dispute nursing home arbitration agreements unenforceable, but the FAA preempted  this effort as well. (Valley View Health Care v. Chapman)

COMBATTING AGREEMENTS

Arbitration agreements cannot be a condition of admission and they can be combated by not signing. When there is concern about being denied admission, , a possible approach is that somebody who lacks authority signs the agreement. For example, spouses and next of kin do not have legal authority to bind a parent/spouse. (Flores V. Evergreen at SD, LLC). Principals can also grant a power of attorney that excludes the authority to enter into arbitration agreements, and can then have the person with power of attorney sign.

People who take these steps will find themselves in much better positions if disputes arise.

Issues with Nursing Home Arbitration Agreements: Michael Fedalen Authors Penton Wealth Management Article

Due to understaffing and neglect, injuries in nursing homes occur alarmingly often. When they do, victims and their families may find that their ability to hold the home accountable is severely restricted by a clause in the documents they signed upon entering the home: an arbitration agreement. In the article “Nursing Home Arbitration Agreements,” published in Penton Wealth Management, Michael Fedalen outlines the main problems with arbitration agreements, as well as a few possible steps elders can take to combat these agreements.

There are many issues with arbitration agreements. For example, arbitrators are for-profit professionals rather than unbiased public servants; additionally, victims are unlikely to be able to prove their case, as they are limited to whatever information arbitrators decide they may access. Mr. Fedalen recommends that elderly clients refuse to sign agreements that include arbitration clauses, as nursing homes cannot include arbitration agreements as a condition of admission.

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HFL Obtains $1.2 Million Settlement in Financial Elder Abuse Case

In a financial elder abuse matter involving a probate dispute, HFL Law Group successfully obtained a $1.2 million settlement on behalf of the decedent’s daughter.

The daughter was the sole beneficiary of her father’s personal and business estates. However, just three months before his death, the decedent amended both trusts to remove his daughter as beneficiary and instead benefit his brother, his brother’s children and his mother, who was also his caretaker, trustee and power of attorney for healthcare and finances.

In the complaint, the daughter alleged that her extended family coerced her father into changing his trusts. At the time the amendments were made, the decedent was isolated from his daughter and was suffering from diminished mental capacity due to a previous stroke. The daughter claimed that her father was not able to understand the changes being made to his trusts, and was fearful that he would be put into a nursing home if he did not follow the directions of his mother and brother.

Thanks to the work of HFL Law Group, the daughter will now receive the sum to which she is entitled.

Webinar Now Available! Recognizing and Litigating Dependent Adult Abuse

Dependent adults, or adults with physical and mental limitations that restrict their ability to carry out normal activities or to protect their rights, often fall through the cracks of the Elder Abuse and Dependent Adult Civil Protection Act and become victims of exploitative businesses or predatory lending. Thanks in part to the vague definition of “dependent adult” in the Act, many are effectively being denied protection that the legislation was intended to provide.

Dependent adults are more likely than other vulnerable groups to exhibit erratic behavior, and it’s easy for many to dismiss their claims as lacking credibility. As dependent adults often have limited abilities and resources to advocate for themselves, it is imperative that attorneys are properly prepared to advocate on their clients’ behalf.

Join HFL Law Group Attorney Michael Fedalen in a CLE-accredited webinar discussing:

  • Why more financial abuse matters should be brought as civil actions rather than in probate court.
  • Concrete tactics that attorneys should use in order to advocate for dependent adults.
  • The types of damages attorneys can recover for their clients.

Watch the full webinar.

What to Expect If You Are Sued in the ITC: Partner James Fedalen’s Article Appears in German Publication

The United States International Trade Commission (ITC) offers a limited alternative forum for trademark owners seeking to block infringing products from entry into the United States. When trademark owners file cases in the ITC naming multiple respondents, these respondents might find themselves in unfamiliar territory.

In his article “What to expect if you are sued in the ITC,” published in the Oxford Journal of Intellectual Property Law & Practice’s German sister publication Gewerblicher Rechtsschutz und Urheberrecht, Internationaler Teil, Managing Partner James Fedalen addresses what to expect when one is named as an ITC respondent, as well as the next steps to take.

Given its accelerated time frame from investigation to resolution, as well as the effect of its remedies, the ITC can be an effective alternative or complement to a district court action. However, given the costs and requirements involved, it is far more likely for a company to find itself as a respondent in an ITC proceeding than the one initiating it; and smaller companies may be hard pressed to continue their defense.

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Beware of Gifts to Caregivers: Michael Fedalen Authors California Lawyer Article

Attorneys who draft estate plans must always make sure that they are both fulfilling a client’s true intent and are not committing errors that create liability to third parties. A prime example involves donative gifts to caregivers. Consider the hypothetical case of an elderly woman named Jane who would like to give a substantial monetary gift to her longtime caretaker. Even if an attorney writes up the request, interviews Jane to make sure she really does want to give this gift, and has Jane sign papers finalizing the gift, the gift is presumptively void if the drafter does not obtain a certificate of independent review.

In an article published by California Lawyer, Litigation Attorney Michael Fedalen explains the background and statutes behind this presumption of fraud or undue influence, as well as its unintended consequences. Though the presumption of fraud or undue influence against gifts to caregivers can help prevent seniors and other vulnerable adults from being exploited, it can also backfire against practitioners who aren’t aware of the scope of its effects.

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