Mental Capacity

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Financial powers of attorney give the named agent broad control over the principal’s assets and thus are a key component of estate planning. Such powers allow the agent to help if and when the principal becomes incapacitated. A corrupt agent, however, may use powers of attorney as a “license to steal.”

Agents who favor themselves may end up in hot water, accused of breach of fiduciary duty. That’s the lesson of Pool-O’Connor v. Guadarrama (2023) ___ Cal.App.5th ___, a case involving an agent who wrongfully used a joint account to handle his uncle’s money.…

Dementia casts a long shadow in California trust and estate litigation. Contestants claim that an elder with dementia lacked sufficient mental capacity to make an estate planning change, or that dementia left the elder highly vulnerable to undue influence.

The Alzheimer’s Association, in its annual Alzheimer’s Disease Facts and Figures, provides valuable information for lawyers, both planners and litigators. The Association released its 2023 report on March 15. I’ll share pertinent highlights in this post.…

As the New York Times reported in December, “ChatGPT is, quite simply, the best artificial intelligence chatbot ever released to the general public.” Built by OpenAI, a San Francisco-based company, ChatGPT has grabbed headlines over the last two months.

Artificial intelligence, including chatbots, has myriad applications in the practice of law. AI no doubt will generate extensive online content readily visible when lawyers and litigants conduct quick online research using search engines like Google. How good, then, is the current version of ChatGPT? I asked the chatbot to write a post about undue influence, a common issue in California trust and estate litigation and the subject of many Trust on Trial posts.…

California courts may appoint guardians ad litem as helping hands to act for those unable to make their own decisions in litigated cases because they are minors or incapacitated adults.  For background, see our prior post.

Senate Bill 1279, effective January 1, 2023, clarifies and improves the rules governing the selection of guardians…

No contest clauses generally are not enforceable against beneficiaries of California trusts when there is “probable cause” to challenge the trust instrument.

Yet the probable cause safe harbor may disappear if the contest is untimely.  That’s the upshot of Meiri v. Shamtoubi (2022) 81 Cal.App.5th 606, a Court of Appeal opinion issued last week.…

Another day, another decision by the California Court of Appeal making it more difficult for residential care facilities for the elderly (“RCFEs”) to enforce their arbitration agreements.

Upon admission to virtually any RCFE, a new resident will be asked to sign a stack of documents including an agreement to submit any future dispute to arbitration. …

California trust disputes often involve the interests of parents and their minor children.  Sometimes those interests conflict.  When disputes are settled, who looks out for the interests of children under 18 years of age?  Who checks that no child is left behind?

Probate judges, as explained in a prior post, may appoint a guardian…

Can a California court stop others from changing an elder’s estate plan?  Yes, in extreme circumstances, suggests a case arising from conflict in a blended family over which side would benefit from an elder’s trust.

In White v. Wear (2022) 76 Cal.App.5th 24, the Court of Appeal reviewed the issuance of an elder abuse…

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…

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…