Elder Abuse Restraining Orders May Prevent Estate Planning Changes

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 restraining order that precluded the respondent from making or facilitating any change to the estate plan of her 94-year-old stepfather.  Such an order might preempt an estate planning change and thereby avoid a future contest over a will or trust.

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Schism Deepens on California Trust Modification

The First District Court of Appeal recently joined the widening chasm amongst California appellate courts concerning trust modification procedure. Probate Code section 15402 is seemingly straightforward, consisting of a lone sentence: “Unless the trust instrument provides otherwise, if a trust is revocable by the settlor, the settlor may modify the trust by the procedure for revocation.” As noted in prior posts, these 25 words have led to a robust split of appellate authority.

On the one hand, the Third District Court of Appeal, in Pena v. Dey (2019) 39 Cal.App.5th 546, and the Fifth District Court of Appeal, in King v. Lynch (2012) 139 Cal.App.4th 1186, have united under one banner. They have followed a restrictive approach, limiting amendment to the method set forth in the instrument, regardless of whether that method is explicitly exclusive. On the other hand, the Fourth District Court of Appeal, in Haggerty v. Thornton (2021) 68 Cal.App.5th 1003, stitched its own flag. It has followed a permissive approach, allowing amendment by the statutory method of section 15401(a)(2) unless the amendment procedure is explicitly exclusive.

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Are an Estate Planner’s Notes Protected by the Attorney Work Product Doctrine?

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 undue influence.

In a recent article in California Trusts and Estates Quarterly, attorneys Ciarán O’Sullivan and Andrew Verriere opine that an estate planner’s notes and other internal file materials likely qualify as work product under the California Code of Civil Procedure such that a court would decline to compel their production.  The authors advocate for a statutory change to facilitate the production of an estate planner’s entire file when the client is deceased.

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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.

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California Court Gives RCFEs More To Keep Them Up At Night

Recent decisions by the California Court of Appeal have heaped stress on the owners/operators of residential care facilities for the elderly (“RCFEs”).

RCFEs, like other businesses, would prefer to avoid the court system and jury trials by obtaining residents’ consent to the arbitration of any disputes that might arise. But as California appellate courts are making ever more clear, it’s one thing to obtain a signature on an arbitration agreement, and quite another to enforce it.

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“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 Estates Section of the California Lawyers Association.

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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 benefits from an elder’s revocable trust.

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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 estate.

Even though the loan was taken out by the elder in her capacity as personal representative of an estate, the court ruled that she could bring an elder abuse claim arising from the loss to her personal beneficial interest in the estate.

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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 interest in the Britney Spears conservatorship, the Legislature appears likely to fund the implementation of AB 1194 in 2022.

For now, what provisions of AB 1194 are of primary interest to California conservatorship lawyers?  If given an opportunity to “free” a “Britney,” should a lawyer jump at the chance to “Do Somethin’” or decline a project that could become “Toxic”?  Though readers may “Hold It Against Me,” song titles “Sometimes” decorate our look at AB 1194.

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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 stuck with proving the absence of undue influence. Should California take the same approach?

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