The American Bar Association Young Lawyers Division 2012 Spring Conference Minneapolis, MN
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1 The American Bar Association Young Lawyers Division 2012 Spring Conference Minneapolis, MN Young Lawyers Division May 16-18, 2013 Financial Elder Abuse Strategies for Litigating a Case from Start to Finish Lessons from Mickey Rooney (CLE) Graves 601 Hotel Ballroom III Friday, May 17, :55 a.m. 9:55 a.m.
2 FINANCIAL ELDER ABUSE STRATEGIES IN LITIGATING A CASE FROM START TO FINISH LESSONS FROM MICKEY ROONEY ABA Young Lawyers Division Spring Conference Minneapolis, MN Friday, May 17, 2013, 8:55 a.m.-9:55 a.m. Hon. Jay M. Quam, Hennepin County District Court Judge Vivian L. Thoreen, Holland & Knight LLP Robert Barton, Holland & Knight LLP
3 TABLE OF CONTENTS Page No. I. Presentation Slides... 3 II. State Statute List III. Testimony of Mickey Rooney before the Senate Special Committee on Aging, March IV. Scam Example V. California Elder Abuse Restraining Orders VI. Speaker Biographies # _v1 2
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16 STATE STATUTE LIST Updated April 1, The adult protective services statutes in all fifty states and the District of Columbia recognize financial abuse or exploitation as a reportable form of elder abuse. But not all states have elder abuse statutes for private causes of action, and not all elder abuse statutes include financial elder abuse as a cause of action. a. States that have both civil and criminal elder abuse statutes: i. Arizona 1. Civil: ARIZ. REV. STAT et seq.; ARIZ. REV. STAT Criminal: ARIZ. REV. STAT et seq.; ARIZ. REV. STAT ii. California 1. Civil: CAL. WELF. & INST. CODE et seq. 2. Criminal: CAL. WELF. & INST. CODE 15656; CAL. PENAL CODE 368 iii. Colorado 1. Civil: COLO. REV. STAT et seq. 2. Criminal: COLO. REV. STAT et seq. iv. Florida 1. Civil: FLA. STAT et seq.; FLA. STAT Criminal: FLA. STAT et seq. v. Mississippi 1. Civil: MISS. CODE Criminal: MISS. CODE et seq. vi. Oregon 1. Civil: OR. REV. STAT et seq. 2. Criminal: OR. REV. STAT vii. Tennessee 1. Civil: TENN. CODE et seq. 2. Criminal: TENN. CODE , viii. Utah 1. Civil: UTAH CODE 62A et seq. 2. Criminal: UTAH CODE , ix. Washington 1. Civil: WASH. REV. CODE et seq. 2. Criminal: WASH. REV. CODE 9A et seq. # _v1 15
17 x. Wisconsin 1. Civil: WIS. STAT Criminal: WIS. STAT b. States that have only civil statutes: i. Hawaii HAW. REV. STAT ; HAW. REV. STAT et seq. ii. Illinois 755 ILL. COMP. STAT. 5/2-6.2; 755 ILL. COMP. STAT. 5/2-6.6; 320 ILL. COMP. STAT. 20/1 et seq. c. States that have only criminal statutes. Almost all states have laws that provide criminal penalties for various forms of elder abuse. Even if there is not a specific statute or provision authorizing criminal prosecution for elder abuse, a jurisdiction s basic criminal laws (e.g., battery, assault, theft, fraud, manslaughter, or murder) may be used to prosecute someone who has committed an act of abuse against an older person. Some legislatures have enacted enhanced penalties for certain crimes against older persons. i. Alaska - ALASKA STAT et seq. ii. Alabama ALA. CODE et seq. [Adult Protective Services Act of 1976]. iii. Arkansas - ARK. CODE et seq. iv. Connecticut - CONN. GEN. STAT. 53a-320 et seq. v. Delaware - DEL. CODE tit et seq. vi. District of Columbia - D.C. CODE et seq.; D.C. CODE et seq. vii. Georgia- GA. CODE et seq.; GA. CODE viii. Idaho - IDAHO CODE , a ix. Indiana - IND. CODE , , x. Iowa - IOWA CODE 235B.4 et seq.; IOWA CODE xi. Kansas - KAN. STAT xii. Kentucky - KY. REV. STAT et seq.; KY. REV. STAT xiii. Louisiana - LA. REV. STAT. 14:93.3 et seq. xiv. Maine - 22 ME. REV. STAT et seq. xv. Maryland - MD. CODE, CRIM. LAW 3-604, 3-605, xvi. Massachusetts - MASS. GEN. LAWS. ch. 265, 13K, 15A, 15B xvii. Michigan - MICH. COMP. LAWS m et seq.; MICH. COMP. LAWS a xviii. Minnesota - MINN. STAT , , , # _v1 16
18 xix. Missouri - MO. REV. STAT et seq.; MO. REV. STAT xx. Montana - MONT. CODE et seq. xxi. Nebraska - NEB. REV. STAT * et seq. xxii. Nevada - NEV. REV. STAT ; NEV. REV. STAT et seq. xxiii. New Hampshire - N.H. REV. STAT. 631:8 xxiv. New Jersey - N.J. STAT. 2C:24-8 xxv. New Mexico - N.M. STAT et seq. xxvi. New York - N.Y. PENAL LAW et seq. xxvii. North Carolina - N.C. GEN. STAT , xxviii. North Dakota - N.D. CENT. CODE , , xxix. Ohio - OHIO REV. CODE , xxx. Oklahoma - OKLA. STAT. tit. 21, et seq. xxxi. Pennsylvania - 42 PA. CONS. STAT xxxii. Rhode Island - R.I. GEN. LAWS , , xxxiii. South Carolina - S.C. CODE , , xxxiv. South Dakota - S.D. CODIFIED LAWS et seq. xxxv. Texas - TEX. PENAL CODE xxxvi. Vermont - VT. STAT. tit. 13, 1375 et seq. xxxvii. Virginia - VA. CODE xxxviii. West Virginia - W. VA. CODE a, xxxix. Wyoming - WYO. STAT # _v1 17
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35 Judge Jay M. Quam Hennepin County District Court Judge Speaker Biographies Appointed in Elected in His current term expires in January Education: J.D., cum laude, University of Minnesota Law School, 1988 B.A., summa cum laude, Moorhead State University, 1984 Employment: Attorney & Shareholder, Fredrikson and Byron in Minneapolis, Associate Attorney, Fredrikson and Byron in Minneapolis, Conciliation Judge, Hennepin County, Adjunct Professor, St. Thomas University School of Law, Professional Memberships: American Bar Association Minnesota State Bar Association Hennepin County Bar Association Minnesota District Judges Association Additional Information: 2010 Hennepin County Bar Association Judicial Professionalism Award Chair, Hennepin County District Court s Legal Advocacy Committee Member, Minnesota State Bar Association Legal Assistance for the Disadvantaged Committee (Co-chair, Judicial Subcommittee) Co-chair, Hennepin County Bar Association Bench and Bar Committee Founder of Volunteer Lawyers Network Summer Associate Program Co-founder of Minnesota Justice Foundation Partner Program # _v1 34
36 2003 Fredrikson & Byron Distinguished Service Award 2001 Minnesota Justice Foundation Outstanding Service Award Alternate for Minnesota Sex Offender Supreme Court Appeal Panel Assignment History Criminal, Mar present Presiding Judge of Probate / Mental Health Court, Jan Feb Assistant Chief Judge of the Family Court, Feb Dec Criminal, Oct Feb Articles The Judge Looks Bored: How to Keep the Judge Interested (Dec. 13, 2011) Adversarial Advocacy: Too Much Adversity Can Hurt You (April 7, 2011) Probate/Mental Health Court: Rapidly Changing and Always Interesting (Dec. 23, 2010) How We Can Help Ex-Cons Thrive Outside (Nov. 2010) Judging Without Lawyers: Now Knowing Makes for Nightmares (May/June 2009) Pro Bono Lawyers: A View from the Bench (Aug. 25, 2008) # _v1 35
37 Vivian L. Thoreen Holland & Knight LLP, 400 South Hope Street, Los Angeles, CA Telephone: Vivian Lee Thoreen is a litigator and experienced trial attorney whose practice both in Superior Court and in the California Courts of Appeal focuses on complex trust, estate, conservatorship and guardianship matters. She represents individuals, families, charities and financial institutions in cases including will and trust disputes, contested conservatorships and guardianships, breach of fiduciary duty matters, and elder abuse matters. Ms. Thoreen s experience includes some of the most sensitive and high-profile cases in her field. Whether the matters can be resolved by mediation or require trial, Ms. Thoreen s clients benefit from her deep personal commitment and nuanced grasp of law and often byzantine facts. An active member of the community, Ms. Thoreen serves on the State Bar of California Trusts & Estates Section executive committee and the board of directors of the Los Angeles County Bar Foundation. She is an active member of and previously served on the board of governors of the Korean American Bar Association. She has been a member of the Los Angeles County Bar Association Trusts and Estates Section executive committee, and is an active member of the National Asian Pacific American Bar Association. Ms. Thoreen has the ongoing pleasure to provide pro bono services through her relationships with Public Counsel and the Alliance for Children s Rights. Published opinions Estate of Pryor (2009) 177 Cal.App.4th 1466 Pryor v. Pryor (2009) 177 Cal.App.4th 1448 Unpublished opinions Estate of Banayot (2009 WL ) Siegel v. Mitchell Silberberg & Knupp (2008 WL ) Newman v. Locke (2006 WL ) Honors & Awards Rising Star, The Minority Corporate Counsel Association, 2013 # _v1 36
38 Leadership Council on Legal Diversity, Fellows Program, Fast Track Lawyers, The Recorder, 2012 Rising Star, Southern California Super Lawyers magazine, 2007, Five Associates to Watch, California Daily Journal, January 12, 2011 The Minority 40 Under 40, The National Law Journal, 2011 Best Lawyers Under 40, National Asian Pacific American Bar Association, 2011 Rising Stars, Holland & Knight, 2010 Editor-in-Chief, UCLA School of Law, Asian Pacific American Law Journal Memberships American College of Trust and Estate Counsel, Fellow State Bar of California, Trust and Estates Section Executive Committee Korean American Bar Association National Asian Pacific American Bar Association, Member and 2010 Convention Planning Committee Los Angeles County Bar Association, Trusts & Estates Section # _v1 37
39 Robert Barton Holland & Knight LLP, 400 South Hope Street, Los Angeles, CA Telephone: Robert Barton is an associate in Holland & Knight's Private Wealth Services Group in the Los Angeles office. Mr. Barton's private wealth services practice focuses on complex trust and estate litigation, conservatorship and guardianship matters, including the representation of individuals, families, charities and financial institutions in cases such as will and trust disputes, contested conservatorships and guardianships, breach of fiduciary duty matters and elder abuse matters. In addition to his representation of trustees, executors and beneficiaries in litigation matters, Mr. Barton has also represented individuals and tribal clients in the administration and probate of tribal member estates. He is currently developing a training to assist in the implementation of conservatorships and adult guardianships proceedings in tribal courts. He is currently a member of Holland & Knight's Diversity Committee and the chair of the firm's Native American Affinity Group. Mr. Barton is an enrolled member of the Oneida Nation of Wisconsin. Articles Steering the Fiduciary Through the Shoals of Surcharge: Recent Voyages Past (or onto) the Reefs, Duke University Estate Planning Conference, October 18, 2012 Combating Elder Abuse in Indian Country, Indian Country Today Media Network, April 16, 2012 Education University of Minnesota Law School, J.D. University of Wisconsin-Madison, B.A., Political Science, History, American Indian Studies Certificate Bar Admissions California Minnesota # _v1 38
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