A conservatorship, once ordered by a Superior Court judge in California, deprives a person of the right to control his or her financial affairs or person, or both. When the judge appoints counsel for the proposed conservatee, what is the lawyer’s role? Are the lawyer’s ordinary duties of loyalty and confidentiality diminished in the conservatorship setting? Should they be?
These are vexing questions that have led to varying approaches in California’s 58 counties. We sometimes represent siblings in contested conservatorship proceedings, typically in “parent custody” disputes when siblings are vying for control over Mom and/or Dad. The approach taken by court appointed counsel is an important factor in how these cases move forward and it would be helpful to all concerned to have a more uniform approach. Continue Reading
What do you do if someone steals money or property from a trust or estate? 
Many California will and trust disputes arise from ambiguity in the document with respect to who is entitled to an asset. Maybe the document was hazy from the start or perhaps circumstances have changed such that the rightful recipient is no longer clear.
American courts (including our California state courts), in contrast to courts in England, do not typically award attorneys’ fees to a lawsuit’s “victor.” There are, of course, exceptions to this so-called “American Rule.” Among them is the “common fund” exception, which provides that one who incurs fees winning a lawsuit that creates a fund for others may require those passive beneficiaries to bear a fair share of the litigation costs. As the word “fund” suggests, the benefit must be a tangible, easily calculable sum of money. Courts have applied this exception to will and trust disputes where one beneficiary’s litigation causes other beneficiaries to receive a larger inheritance than they otherwise would have received.
Trust and estate litigation attorneys are “trusted advisors.” Like estate planning attorneys and other professionals who help clients with wealth management, we are fixers who assist clients with navigating conflict relating to a trust or estate. While we spar in the probate departments of the Superior Court of California, at the end of the day our main function is to advise clients so they can choose a resolution that fits their needs and is achievable in the situation at hand.
Mental capacity issues are commonplace in California trust and probate litigation. Jonathan Canick, Ph.D., who spoke last year at the 
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