This month Judge John P. Winn replaces Judge Steven M. Gevercer as the Supervising Probate Judge in Department 129 of the Sacramento County Superior Court, as part of judicial reassignments that occur each January.
Judge Winn will be handling a broad range of matters in Department 129, including trust disputes, probate administrations, conservatorships and guardianships. Long cause trials typically are sent to downtown trial departments and are not heard in Department 129.
Incapacity planning is a major component of an estate plan. Quite often people name one person to serve as a health care agent and another person to serve as a financial agent. What role does one agent have as opposed to the other in the context of contracting for medical services?
While the Probate Code does not provide a bright line, a recently-published California case explores the question in the context of the admission of a patient to a residential care facility for the elderly. The Third District Court of Appeal, in Hutcheson v. Eskaton FountainWood Lodge (2017) 17 Cal.App.5th 937, found that the health care agent was the one authorized to admit the patient and the facility’s failure to obtain consent from that agent nullified an arbitration clause, thus exposing the facility to litigation in Superior Court.
A recent California appellate case, Stewart v. Superior Court (2017) 16 Cal.App.5th 87, validates the primacy of medical powers of attorney and (as they are more currently known) advance health care directives. Medical providers who disregard the instructions of duly-appointed health care agents by providing unauthorized treatment may be liable in California for elder abuse in addition to medical malpractice.
We focus our blog on the financial aspects of California trust and estate disputes. But, as we increasingly become involved in “parent custody” fights and other conflicts over the care of elder and dependent adults, it is important to understand the authority vested in an agent under a health directive.
No contest clauses are an ever-evolving area of the probate law in California. The Court of Appeal further refined the rules governing no contest clauses in a decision issued last week, Aviles v. Swearingen (2017) 16 Cal.App.5th 485. In brief, in order for a no contest clause to apply to a trust amendment, the no contest clause must be stated in the amendment or the amendment must expressly reference the no contest clause set forth in a prior document.
The takeaway from the case for estate planners is that if your client wants a no contest clause, then you must mention the no contest clause in every trust amendment that you draft for the client. It is not good enough to simply include a no contest clause in the client’s trust and then refer back to that trust, generally, in later amendments. Each subsequent amendment must either contain its own no contest clause or must expressly reference the no contest clause of the original trust instrument.
California’s anti-SLAPP statute has generated another published case for trust and estate lawyers to ponder. Last week, in Urick v. Urick (2017) 15 Cal.App.5th 1182, the California Court of Appeal confirmed that anti-SLAPP motions can be used to attack petitions to enforce no contest clauses.
The opinion reminds California trust and estate counsel to be cautious when using petitions to attack the court filings of other parties. At the same time, the opinion demonstrates that a well-conceived attack on an adversary’s filing ultimately should not fall to an anti-SLAPP motion, even if it takes an appellate court to set things right.
SLAPP is an acronym for “Strategic Lawsuits Against Public Participation.” To discourage and weed out such suits, the Legislature created a special procedure to challenge them. Last year we wrote about the use of anti-SLAPP motions as a defensive tool in trust and estate litigation. We discussed the use of such motions to challenge efforts to enforce no contest clauses, using an unpublished appellate case as an example. With Urick, we now have published authority in California for guidance.
Although much wealth passes today through trusts and beneficiary designations, we occasionally handle California probate disputes that turn on the validity of wills, sometimes involving high value estates.
The standard practice in California estate planning is for wills to be typewritten and prepared by attorneys, but those steps are not necessary. A holographic, i.e., handwritten, will can have just the same effect.
I’m a sibling lawyer. My career started early, as a middle child, and now continues as a Sacramento-based trust and estate litigation attorney. Most of my clients are grappling with sisters or brothers over the care and finances of aging or deceased parents. In Family Feud parlance, my “survey says” that sibling versus sibling is the top category of matchups in California trust and estate disputes.
Will this happen in your family? What leads siblings to litigate? In many of my cases, cracks in family relationships were evident long before anyone filed papers at the courthouse. But I’ve had many clients tell me they were always close to their siblings and “never saw it coming.”
One of the most dramatic areas of California trust and estate litigation is no contest clauses. No contest clauses bring a made-for-tv excitement to the practice of trust and estate law because of the risk of disinheritance. Yet such clauses are widely misunderstood, even among attorneys.
California trust and estate disputes may be avoided or resolved with the appointment of a private professional fiduciary to act in an oversight role with respect to an elder’s care and/or finances. In a recent post, we suggested the use of professional fiduciaries or bank trust departments to resolve conflicts among family member co-trustees.
Here we’ll focus on professional fiduciaries as an option, drawing on our experience as trust and estate litigation attorneys. We usually represent family members in conflicts. Sometimes we represent professional fiduciaries.
Mental incapacity and undue influence are the most common theories used to try to invalidate wills, trusts and beneficiary designations in California and elsewhere. Occasionally, the subject in a trust and estate dispute has a thorough cognitive evaluation performed contemporaneously with his or her estate planning change. But, more often than not, the medical record is fragmentary.
In a prior post, we discussed the recurring issues that come up in cases involving Alzheimer’s disease. Dr. Charles Schaffer, a Sacramento forensic psychiatrist, recently sent me an article entitled “Protecting the Health and Finances of the Elderly with Early Cognitive Impairment,” published this year in the Journal of the American Academy of Psychiatry and the Law. The article focuses on mild cognitive impairment and early Alzheimer’s disease. The relatively subtle nature of these two medical conditions makes their impact on estate planning decisions hard to fathom.