California law is surprisingly unclear as to whether the notes of an estate planning attorney are protected from discovery by the attorney work product doctrine. This can become a big issue in a will or trust contest when the attorney’s files may contain pivotal evidence as to the client’s intent, mental capacity and/or vulnerability to
Jeffrey S. Galvin
Final Ethics Opinion Guides Lawyers on Clients with Diminished Capacity
We wrote last July about a draft California ethics opinion regarding clients who may have diminished mental capacity.
After receiving public comment, the State Bar’s Standing Committee on Professional Responsibility and Conduct has now finalized Formal Opinion Number 2021-207, which is close in content to the earlier opinion.
Opinion Number 2021-207 is useful resource…
“Predatory Marriage” Podcast
Vulnerable elders too often fall victim to predators who marry them for financial gain. But how should we balance the fundamental right to marry and enjoy companionship with protecting elders from financial abuse?
Attorney Ellen McKissock, a California thought leader on predatory marriage, spoke with me on Trust Me!, the podcast of the Trusts and…
Blast from the Past – Trusts Subject to Medi-Cal Reimbursement
We begin the year with a case, Riverside County Public Guardian v. Snukst (2022) ___ Cal.App.5th ___, involving an elder with dementia who received Medi-Cal benefits.
The case, a blast from the past, illustrates how the State of California, under the law in effect until several years ago, could recoup the cost of such…
Another Broad Reading of the Elder Abuse Act Protects Seniors
We “ring” in 2022 with a recent case that again shows the long reach of statutory financial elder abuse claims in California trust and estate litigation. In Ring v. Harmon (2021) ___ Cal.App.5th ___, the Court of Appeal considered an alleged loan scheme to drain equity out of a house held in a probate…
Assembly Bill 1194 – How Will “Free Britney” Impact California Lawyers and Courts?
Assembly Bill 1194, approved by Governor Newsom on September 30, 2021, tightens oversight of California conservators, especially those licensed by the Professional Fiduciaries Bureau.
The bill expands the duties of California courts with respect to conservatorships, though some reforms depend upon funding in future legislation. With a projected budget surplus, and keen public…
Should “Dutiful Children” and “Dutiful Spouses” Be Exempt from the Undue Influence Presumption?
California trust and estate disputes often feature claims by one sibling that another gained a larger share by unduly influencing a parent. When there are factors suggesting undue influence, who should bear the burden of proof? The disfavored sibling or the favored one?
Florida courts have decided that dutiful children, and spouses, should not be…
Making Peace in Mediation – A Conversation with Daniel Spector
Daniel Spector has litigated trust and estate cases in Northern California since the early 1990s. He is now focusing his practice on mediating trust and estate disputes across California, working with Judicate West. Dan is a colleague on the Executive Committee of the Trusts and Estates Section of the California Lawyers Association, and I…
Fraud Claims May Reopen Court-Approved Accountings
Even a court order approving an accounting may not protect a California fiduciary if the accounting is inaccurate. That’s the upshot of Hudson v. Foster (2021) 68 Cal.App.5th 640, a recent California Court of Appeal decision involving a conservatorship.
The conservatee in this case consented to the conservator’s account and four years passed before…
Zach Young, Second Generation Fiduciary, Helps Families with Transitions
Zachary Young is a private professional fiduciary with CMY Fiduciary Services in Sacramento. His mother, Carolyn M. Young, began work as a fiduciary in 1986. Zach received his bachelor’s degree in business and communications at Sacramento State University. Zach joined his mother and sister, Lindsay Bowman, in the fiduciary business. In 2012, he received his…