ATTORNEY NEWSLETTER
Changing Estate Plans When Senior Lacks Capacity
Holding Attorneys Accountable
Individuals create trusts to hold their assets to avoid a lengthy probate process following death and make sure their estate passes to their spouse or children or grandchildren or other beneficiaries of their own choosing. Typically, these trust arrangements are created when the individual has full mental capacity and knows exactly how she or she wants to leave their money. These trusts are also normally revocable so that the individual can revoke or amend the trust during life. Revocations or amendments are enforceable where the creator of the trust (called the “settlor”) has full capacity. But when a settlor is suffering from cognitive impairment or clearly lacks capacity to alter their estate plans, there are persons – including attorneys – drafting amendments or Wills at the behest of caregivers or family members or others who want the settlor’s money. Evans Law Firm, Inc. represents families, settlors and trust beneficiaries harmed by those who take this kind of unfair advantage of seniors who have lost capacity, including the attorneys who draft instruments knowing that the settlor does not understand what he or she is doing. If you or a loved one has been a victim of financial elder abuse or exploitation of a senior with respect to his or her trust in San Francisco or elsewhere in California, contact us at (415) 441-8669 and we can help. Our toll-free number is 1-888-50EVANS (888-503-8267).
Changing Estate Plans In Cases of Diminished Capacity
We have seen incidents where attorneys are willing to draft trust amendments and new Wills for older persons who clearly do not understand what they are signing. The individual may be a dependent adult suffering from a debilitating disease under the influence of a new girlfriend or boyfriend looking to take advantage of the situation. In other instances the individual may be a senior who is losing capacity and a caregiver or particular family member seeks to take advantage of their condition. We have even seen instances where the senior is already in the middle of a conservatorship proceeding and an attorney facilitates the desires of a family member to divert the senior’s property entirely in their direction, despite the attorney knowing that the senior does not understand their financial affairs.
We believe that all persons – including the attorneys – responsible for this kind of manipulation of a dependent adult or impaired senior should be held accountable. California law fortunately protects the victims in several ways. First, if the person pushing for a new estate plan is a caregiver, the law presumes any transfer to them is the act of fraud or undue influence. Probate Code § 21380 et seq. In order to protect the victim, the law says that this presumption of fraud or undue influence may be overcome by a certificate of independent review of the new estate document. Cal. Probate Code § 21384. An independent certificate of review requires an attorney to certify that a transfer to a caregiver is not the product of fraud or undue influence. We have seen instances where a caregiver has arranged an estate plan of a senior patient where such a certificate is never produced – most likely because the caregiver could not get an attorney to sign off. But there are also incidences of unfair advantage of impaired seniors where a caregiver is not involved but say a second spouse, other family member, or trustee or conservator of the senior. In those instances, the Courts say you can pursue any attorney who aids intaking unfair advantage of the impaired senior.
Legal Malpractice Claims
Where a trustee or conservator is aided by an attorney in taking unfair advantage of a settlor or conservatee, any successor trustee or conservator can pursue legal malpractice claims against the attorney who facilitated the improper conduct. Stine V. Dell’Osso, 230 Cal. App. 4th 834 (2014). In Stine, the court found that a successor fiduciary could pursue legal malpractice claims against an attorney, and the attorney’s law firm, for the attorney’s assistance of the prior conservator in misappropriating over $1 million from the conservatorship estate. Stine, supra, 230 Cal. App. 4th at 838. The successor conservator brought a financial elder abuse action against his predecessor conservator and a legal malpractice action against the attorney after the successor discovered that the prior conservator and attorney had hidden the existence of over $1 million in assets of the conservatee from the Court. The Court found that the successor conservator had the authority to pursue a legal malpractice claim against the prior attorney under Probate Code §§ 8524 and 9820; Smith v. Cimmet, 199 Cal. App. 4th 1381, 1397 (2011)(a successor fiduciary “may bring suit against [a] predecessor’s attorney for malpractice causing loss to the estate”). We at Evans Law Firm will pursue any attorney who has assisted a prior conservator or trustee of an older person to remove money from their estate.
Contact Us
If you or a loved one has been a victim of financial elder abuse, legal malpractice or a breach of fiduciary duty by a trustee or other person in San Francisco or elsewhere in California or, contact Ingrid M. Evans at (415) 441-8669, or by email at <a href=”mailto:info@evanslaw.com”>info@evanslaw.com</a>. Our toll-free number is 1-888-50EVANS (888-503-8267).
