Winsten Law Group

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Phone: (949) 429-3400

Address: 27201 Puerta Real Ste 465, Mission Viejo, CA 92691

Website: https://www.winsten.com

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Winsten Law Group

Divorce
Guardianship
I offer guardianship services to individuals and families in Orange County and throughout California. As the process whereby a person seeks an appointment through the court to be the legal representative of another person, guardianship is not something to be taken lightly. In the event that someone becomes ill or incapacitated, the guardian will be responsible for overseeing key decisions regarding the personâ€™s life and property. With proper planning in place, a trusted loved one can be appointed as a guardian. As seniors can far too often be victims of exploitation, completing the guardianship or conservatorship process adds a layer of protection for seniors and their loved ones.

Theft
Embezzlement
This case resulted in a 6-week state court jury trial for negligence arising out of a 5-year course of auditing malpractice, which failed to detect a controllerâ€™s $2.5 Million embezzlement scheme. Mr. Winsten represented the plaintiffs as second chair trial counsel and handled the direct and cross-examination of numerous key witnesses. The jury agreed with plaintiffs' expert that the embezzlement should have been detected at the outset by employing basic audit tests set forth and recommended in the defense expertâ€™s undergraduate auditing textbook, but which were never applied. The jury rendered a plaintiffsâ€™ verdict for virtually all of the damages requested, to which interest was added. The case settled shortly after the trial.
Identity Theft
Often a senior does not report financial abuse or identity theft because they are unaware, embarrassed, or worse, they think that someone will deem them mentally unfit and they might be â€œput awayâ€ as a consequence of having been exploited. While these are real issues and fears experienced by elderly people, the scale of financial exploitation is so great it has to be addressed. This is why the enacted Senior Safe Act, coupled with the Elder Abuse Prevention and Prosecution Act (signed into law October 2017), as well as two Financial Industry Regulatory Authority (FINRA) rule changes (which have already taken effect), will provide the legal protections and financial industry framework our senior population need and deserve. One of the most important aspects of the new FINRA rules is the ability for member firms to place a temporary hold on the disbursement of funds or securities when there is a reasonable belief that a senior is experiencing financial exploitation, thus protecting assets before they are taken from the senior. This new rule, in conjunction with the Senior Safe Act, can help keep seniorsâ€™ assets from vanishing.
Restraining Order
Mr. Winsten represented the defendant in this trade secret case, defeating applications for a temporary restraining order and a preliminary injunction, and ultimately winning a complete defense motion for summary judgment. In this case, a former long-term independent contractor sales representative terminated his relationship with a publisher of a prominent healthcare trade publication and started a competing business. The publisher sued on numerous theories, primarily complaining about the misappropriation of trade secrets. Mr. Winsten was able to convince the trial court that the independent contractor relationship did not create the same kind of common law and statutory duties that arise out of the employment relationship. In the absence of written confidentiality or work-for-hire agreement, the trial court agreed the alleged trade secret work product actually belonged to the defendant, not the plaintiff.

Business and Corporate Law

Corporate Law
Hi, my name is Mike Winsten, and I would like to be your healthcare and business attorney. I have been practicing law in the State of California since 1986 with several of Southern California's most prestigious corporate law firms until I founded my own firm in 2000. My clients have ranged from publicly-traded Fortune 500 companies to privately-held corporations and their key executives and shareholders. I regularly handle litigation and regulatory matters, often involving millions of dollars.
Business Disputes
Healthcare providers can benefit from the aggressive advocacy of an experienced litigation attorney. Alleged medical fraud, business disputes, and issues of billing and reimbursement can quickly become major legal crises if they arenâ€™t dealt with effectively.
Business Transactions
At Winsten Law Group, Iâ€™ve developed a business transactions practice that is always aware of your goals and needs. I offer healthcare provider representation in the following areas and more...
Trade Secrets
Intellectual Property
Unfair Competition
I represent and counsel companies and individuals in numerous industries, with a primary focus on healthcare, real estate development and finance, and high technology. I have accumulated a great deal of experience and expertise in litigation, transactions, and counseling in the following industry sub-segments: healthcare finance and reimbursement, franchise relations, trade secrets, unfair competition, technology licensing, corporate ownership and management, probate, employment, and non-profit corporate governance. I also regularly serve as co-counsel with several of Orange County's leading family court lawyers with high net worth clients involved in marital dissolutions entangled with significant business ownership or management implications.

Workers Compensation
OVERPAYMENT REFUND CLAIMS IN COMMERCIAL HEALTH CARE RELATIONSHIPSA frustrating and expensive, yet pervasive irritant in the relationship between healthcare providers and payors are overpayments made in what can be called the "ordinary course of business" due to mistakes and inadvertence. This recurring pattern can be called the "ordinary course of business" because while the overpayments are unintended and stem from a variety of causes, they happen with sufficient frequency that the phenomenon has become an entrenched part of the healthcare landscape.This primer will focus primarily on the legal issues arising in the handling of overpayments in commercial relationships. Overpayment refund issues arising out of government healthcare direct reimbursement programs are excluded since they are subject to a separate regulatory scheme.The emergence of the Overpayment TrendPayors obviously need to be concerned about identifying and recovering overpayments in order to properly manage their resources according to their intended business plans. Many factors lead to overpayments, such as complex payment formulas set out in payer-provider contracts and claims processing system inefficiencies. It is not uncommon for underpayments and overpayments to be made on the same account without any discernable pattern or methodology. As a result, payors and providers often must devote substantial resources to engage in a second round of claims processing to identify, analyze and reconcile erroneous payments. While maximizing profitability by capturing all of the revenue a company is entitled to cannot be underestimated, another important factor is the heightened awareness of the need for accurate financial reporting and revenue recognition by just about every company participating in the healthcare industry due to state insurance regulations, the Sarbanes-Oxley Act of 2002, and new federal statutes enacted under the Patient Protection and Affordable Care Act, such as medical loss ratio requirements for health insurance issuers.Charges vs. Amount PaidProviders strive to submit "clean claims," which generally means a complete and accurate UB-92/CMS-1500 form that includes the provider's "commercial"," or "full billed" charges. The payor or third-party administrator must determine whether the claim is for authorized services rendered to a member and then properly process and determine the amount to pay on the claim. Depending upon the applicable insurance contract and the provider's participation status, the correct reimbursement rate may be a negotiated contractual rate or out-of-network (OON) payment rate determined by the payor or third party administrator according to the terms of the applicable health insurance coverage. For many reasons, a provider's charges identified on the claim form are rarely the same as the amount the provider expects to be paid or which the payor intends to pay, which may be a contributing factor leading to overpayments.This process leads to o
Employment Litigation
When so much is on the line for you and your business, itâ€™s important to stand on solid legal ground. I represent health professionals in employment issues such as credentialing, contracts, termination, licensure, and lawsuits that may be brought against your company. I strive to offer pragmatic, purposeful advocacy on behalf of employers in Orange County and the rest of California.

Real Estate Litigation
Since 2000, Mr. Winsten has represented DaVita HealthCare Partners Inc. and its affiliates and subsidiaries (NYSE:DVA; www.davita.com) a major provider of healthcare services in outpatient and hospital clinics. Over the last 20 years, and in excess of hundreds of separate reimbursement and payor recovery matters around the country and against most of the national healthcare insurance companies. Mr. Winsten has unraveled the complex facts and legal issues surrounding diverse reimbursement disputes under numerous Federal statutes including ERISA, COBRA, and other Federal and state reimbursement and refund statutes and regulations. Mr. Winstenâ€™s efforts have often resulted in direct recoveries in excess of $2-10 Million annually, with fees and costs averaging approximately 10% of recoveries, and with other indirect long-term recoveries resulting from the subsequent correction of payer claims-processing errors or other malfeasance. Most were resolved in workouts and settlements without litigation. Some were litigated in either State or Federal Court, depending on the subject matter jurisdiction of the claims involved, with a few being subject to AAA arbitration. Of those cases litigated, most were resolved and settled well short of trial, many without significant formal discovery, although Mr. Winsten has also prevailed at trial. Mr. Winsten has also handled many miscellaneous contract negotiations and disputes with creditors or vendors, joint venture disputes, medical director agreement disputes, public contract bidding disputes, and real estate disputes, including lease and sublease negotiations and disputes. The resolution of these matters often included Mr. Winstenâ€™s negotiation and documentation of new contracts, renegotiation of existing contracts, in connection with settlement agreements.

Social Security Disability
The major disqualifiers for federal Supplemental Security Income (SSI) and Social Security Disability Income (SSDI) should be reviewed before submitting an application. Eligible individuals can benefit from both programs though they have distinct differences.

Trusts and Estates

Estate Planning
EVEN CELEBRITIES LIKE LARRY KING CAN HAVE A FAILED ESTATE PLANAt the time Larry King died, he left seven ex-wives and five children. He died at age 87 on January 23, 2021, after contracting Covid and then succumbing to an infection. Immediately after his death, his estate went straight to probate court.If only he would have followed the advice that any estate-planning attorney could have given him. Estate plans should be regularly reviewed and competently updated, especially any time there are changes to the family.King married his last wife, Shawn Southwick, in 1997. In 2015, the couple created an estate plan, in which Shawn was named Kingâ€™s trustee and in which the couple signed post-nuptial contracts that limited Kingâ€™s power to give leave bequests to his children.Four years later, in early to mid-2019, King had a stroke, in addition to suffering numerous other grave health problems. Later that year, after over twenty years of marriage, King filed for divorce from Shawn. The divorce was never finalized.Then, after that, King handwrote a one-page will that purported to leave his property equally among his five children. The document is barely legible and contains words and phrases that were scratched out. Its language is ambiguous. It does not mention Shawn. Later, in 2020, after two of Kingâ€™s children died, he neglected to update the document, which he should have done to direct where the deceased childrenâ€™s shares should go.On Kingâ€™s death, one of his children, relying on the handwritten document, petitioned to administrate the estate. Wife Shawn challenged, alleging that in later years King had become susceptible to undue influence and that he lacked mental capacity. To further complicate matters, California is a community-property state, meaning that Shawn could have an independent right to fifty percent of any assets acquired during the marriage.The regrettable consequence of all this, which could have been avoided if King had consulted with an estate-planning attorney, is that the King estate will be tied up in a lengthy, costly, public battle. Not only must the family grieve the untimely deaths of two of the King children and the passing of the family patriarch, but they must also suffer the aspersions cast on King's abilities in his final years.The moral of the story? If King wanted to change his 2015 estate plan, he should have consulted an attorney. He never should have created a document that was open to such serious challenge, especially given the number of marriages and children involved, at a time when his health was frail.King may have been a great and much-lauded figure, but he has left behind an object lesson in why responsible estate planning is so very important. And if you think this matters less for you because you havenâ€™t had as many spouses and donâ€™t own as much, think again. If you leave your estate open to this kind of happenstance, the money it will cost to fix it later
Wills
It is important to create a last will and testament to make sure your final wishes regarding your asset disbursement are properly followed. If you have people who you love and care for, then creating a will for your peace of mind and their protection is the right thing to do. Though crafting your will can make you face some uncomfortable topics, like mortality, it does not compare to the difficulty your loved ones will face trying to handle the logistics problems in the absence of your will.
Trusts
As we age, it can become increasingly difficult to manage our assets. Most of us will, at some point, need assistance with these details to help ensure that our financial and other assets arenâ€™t depleted. If you or an aging loved one are looking for ways to safeguard assets, a Living Trust is often the best way to do so. Living Trusts allow seniors to rest assured that their finances and assets are managed by a trusted person.
Power of Attorney
RESPONSIBILITIES OF A FIDUCIARYAt some point in your life, a family member or friend may request you be their power of attorney. Your person may be planning for when they might become unable to take care of their affairs. For example, they might become disabled or incapacitated, and they would need a trusted person to step in and manage for them. This is also necessary if the person is writing a will, and his or her estate must go through the probate process.If you are named as a guardian, executor of a personâ€™s will, trustee, or power of attorney, the law calls you a â€œfiduciary.â€ You must act in the best interests of the person who has named you â€“ â€œselflessly,â€ in other words. You must act loyally and in good faith.You are not allowed to use the personâ€™s property for your own profit. You cannot give gifts to yourself or others, if the person has not authorized you to do that. You cannot mingle your personâ€™s property with your own. If you spend the personâ€™s money, you must carefully document the amount you spend and for what purpose.What is a Fiduciary Relationship?The â€œfiduciaryâ€ relationship imposes the highest duty in law. If you violate that duty, you may become personally liable.Or, if you are the one who is thinking about whom you would like to name as your power of attorney (or the like), you must be sure you trust that person absolutely.A recent New Jersey probate case shows what can go wrong. Mother Christine named Patricia, one of her daughters, to be executor of Christineâ€™s will. On Christineâ€™s death, her other daughter, Diane, received a check from Christineâ€™s estate for $10,000.00 â€“ yet Christineâ€™s house had sold for nearly $230,000.00.The judge ordered Patricia to produce an â€œaccountingâ€ of where all that money had gone. An accounting is an inventory of estate assets and a record of all income and expenses. Patricia would not do so. Examination of the estateâ€™s inheritance tax return revealed that despite a gross estate value of $319,368.00, the estate bank account contained only $6,886.00.Patricia had spent $40,000.00 on what she claimed were home repair expenses, but she could produce no building permits. She had also given herself $110,000.00 as â€œfeesâ€ for her executor duties, plus a â€œgiftâ€ to herself of $27,000.00. No wonder she pled the Fifth Amendment.The judge entered a judgment against her of $200,422.00. The judgment was affirmed on appeal, but with the requirement that the trial judge calculate the damages more specifically.The case is In re Cenaffra, and can be found here:https://law.justia.com/cases/new-jersey/appellate-division-unpublished/2020/a5731-17.htmlMost people are not like Patricia. If you are named as guardian, power of attorney, or executor, follow a few simple principles. Make sure you donâ€™t personally benefit from what you do with the other personâ
Probate
THE PROBATE PROCESS EXPLAINEDThe probate process consists of validating a deceased individualâ€™s will, evaluating assets, paying off creditors and any taxes owed, and lastly, dispersing the remaining assets to the inheritors. After an asset-holder dies, the court will appoint a valid will's executor to administer the probate process. In the absence of a will, the court will appoint a state administrator to handle probate. Probate law varies by state, but there are steps in the process that are common.First, an executor is appointed and is normally the person named in the will. It is the executor's responsibility to initiate the probate process. An executor can be a family member, a financial advisor, or any person the testator deemed capable of administering their estate. The executor files the will with the probate court, which initiates the probate process. A court officially appoints the executor as named in the will, giving the executor legal authority to act on the testator's behalf.The executor's function is to locate and oversee all of the estate's assets and to determine each assetâ€™s value. The majority of the deceased's assets are subject to the probate court, where the deceased lived at the time of their death. Real estate is an exception, and probate may extend to any county where the real estate is located.The executor will pay any taxes and debts owed by the deceased from the estate. A notice of death is published and creditors are given a limited time to make claims against the estate for any money owed to them. If the executor rejects the claim, the creditor may take them to court, where a probate judge will determine the debt's validity. The executor is responsible for filing the deceased's final, personal income tax returns. The executor's last task, via court authorization, is to distribute what remains of the estate to the beneficiaries.Probate is required for any asset or account that does not have a joint owner or beneficiary named. If a joint owner or beneficiary is named then the title changes automatically and probate becomes unnecessary.If a person dies without a will, they are said to have died intestate. An estate can also be deemed instate if the will presented to the court is found to be invalid. The decedent's assets of an intestate estate follow a similar probate process, beginning with the appointment of an administrator. An administrator functions like an executor, receiving all legal claims against the estate, paying outstanding debts, and the decedent's taxes.Administrators must also seek out legal heirs, including surviving spouses, parents, and children. The probate court will determine the distribution of the estate among its legal heirs. In the absence of any family or other heirs, the remaining assets go to the state.The more complex or contested an estate is, the longer the probate process can take to finalize. The longer the process, the higher the cost. Probate without a will typically costs

Bankruptcy
Tax Law
We help families create plans that address long-term care concerns, financial issues such as how to pay for care, and tax issues. Many clients of ours have a dementia diagnosis and we understand the challenges that come with such a diagnosis. We welcome the opportunity to discuss your concerns and your wishes so that they can be properly documented for you and your loved ones. Please contact us at 949.418.1083 and schedule a free consultation to discuss your legal matters.

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