Mental Capacity

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Silhouette of Helping HandsGuest author Karina Stanhope, a Downey Brand associate, contributes today’s post.

A recent New York Times article shined new light on Britney Spears’ conservatorship. Well known for her instant rise to stardom as a Disney Mouseketeer, Ms. Spears’ fame as a young, up-and-coming pop star in the 1990s was boundless. Little less than a decade later, however, media outlets and tabloids provided a darker view of what Ms. Spears’ life had become. The more famous Ms. Spears became, the less control she appeared to hold over both her private and public life. Ms. Spears’ escapades worried fans and family alike, and in 2008, her father, James Spears, took legal action. A Los Angeles court appointed Mr. Spears conservator over Ms. Spears’ person and estate, with a lawyer aptly named Andrew Wallet serving as co-conservator over her estate.

Alzheimer's Word Cloud_RevisedFor a richly-detailed profile of a woman’s experience with Alzheimer’s disease, read “Fraying at the Edges,” an article by N. R. Kleinfield that appeared on May 1, 2016 in the New York Times. The author follows Geri Taylor, who was first diagnosed with Mild Cognitive Impairment in 2012 at age 69, and introduces us to her husband and other family members, friends, and participants in support groups.

Although the article does not discuss any conflict over Ms. Taylor’s finances or estate plan, the vivid descriptions of her experience with Alzheimer’s disease illuminate the complexity of its effects on mental function. When an elder with Alzheimer’s disease makes a controversial estate planning change, the variable impact of the disease leads to challenges in assessing the elder’s mental capacity and vulnerability to undue influence, and thus substantial uncertainty in the outcome of a trust contest, will contest, financial elder abuse claim or contested conservatorship.

Woman reading bookOn a road trip over the holidays, I listened to John Grisham’s Sycamore Row, as artfully read by Michael Beck. Published in 2013, it’s a sequel to Grisham’s first novel, A Time to Kill, and again features young country lawyer Jake Brigance. This time, instead of an accused man, he’s defending the handwritten will of Seth Hubbard. Hubbard, a shrewd businessman, had a terminal illness and near the end of his life wrote a new will to favor his housekeeper over this two children.

Are will contests in California like the contest featured in John Grisham’s legal thriller? Yes and no.

Hands of Elderly Parent and DaughterMost will and trust contests in California start several months after the death of the person who created the document. Such litigation has a forensic quality: did Mom have sufficient mental capacity back when she signed the will/trust, or was she the victim of undue influence? Mom is not around to testify as to what she thought and wanted, nor can expert witnesses meet her to evaluate her capacity. If the documents were executed many years ago, the trail of evidentiary breadcrumbs may be faint. A lawyer who contests old estate planning documents may find inspiration in Sherlock Holmes.

Increasingly, however, the fight over Mom’s trust will flare during her lifetime. For example, if Mom has moderate Alzheimer’s disease and a family member petitions the court to appoint a conservator over her estate (i.e., financial affairs), the court may review Mom’s estate plan and modify its terms if appropriate. Through the “substituted judgment” process laid out in the California Probate Code, the court for example might cancel a recent trust amendment on the ground that Mom did not sign it of her own free will, thereby restoring the prior version of the trust. In the conservatorship setting, the court need not wait for Mom’s death to evaluate the validity of the trust documents, and an earlier review may lead to a better result if evidence presently available, such as the testimony of a key witness, may be lost with the passage of time.

The California Court of Appeal blocked Donald Sterling’s last second shot at undoing the sale of the Los Angeles Clippers. Donald sought to overturn the results of an eight day trial that occurred in July 2014. The opinion, issued on November 16, 2015, should be of interest to settlors, trustees, and beneficiaries of “ordinary” trusts in California that do not hold a $2 billion NBA franchise.

The Court of Appeal hammered Donald for procedural deficiencies with his appellate briefs before ruling against Donald on all three issues on appeal. The court held that: (1) Donald was properly removed as trustee on the basis of his incapacity; (2) the trial court appropriately allowed the sale of the Clippers despite the pending appeal; and (3) Donald’s effort to revoke his trust was ineffective to stop the sale of the Clippers.