Chris and Kosta move to the Demiris Law Firm P.C.

After many moons together, Chris Moore and Kosta Demiris are reorganizing the firm and moving offices.  They will now be part of the Demiris Law Firm PC and located at 700 Ygnacio Valley Road, Suite 140, Walnut Creek, CA 94596.

Many thanks to our friends, family, clients, and colleagues for all of your support throughout the years.

Recent CA case confirms that a trustee's attorney-client correspondence generally stays with the office of trustee

In a recent case in the First Appellate District, Division Three, Court of Appeals, Fiduciary Trust International of California v. Conrad Lee Klein et. al (2017), the Court held that correspondence between an attorney and trustee-client is generally not privileged when it comes to being provided to a successor trustee.  In other words, the office of trustee generally holds the privilege and when a new trustee takes the office, then that person is entitled to all attorney-client correspondence by the predecessor trustee except in very limited circumstances.  Some of those limited situations could potentially exist when the trustee pays for his/her own separate counsel, out of personal funds (not trust funds), and takes steps to preserve the confidentiality of the communications.  

This ruling is in line with prior rulings by the California Court of Appeals.  This case directly cites the seminal case for trustee attorney-client privilege, Moeller v. Superior Court (1997) 16 Cal.4th 1124.

Demiris & Moore prevails for client in conservatorship trial

On March 22, 2017, in Contra Costa County Superior Court Case No. MSP16-01258, Demiris & Moore obtained a decision appointing their client as conservator of the person and estate following an afternoon trial in a contested conservatorship case.  The trial involved a dispute amongst siblings over who should be conservator of their mother.  Attorney Konstantine "Kosta" Demiris handled the case for the firm.

Konstantine “Kosta” Demiris to speak at NAELA Conference

On Saturday, March 4, 2017, Konstantine “Kosta” Demiris will speak at the National Academy of Elder Law Attorneys (“NAELA”) Chapter California Summit in Oakland, CA.  His topic will be “Drafting Trusts to Avoid Litigation.”

 

Some of the other topics and speakers include:

 

·         Ruth Phelps, who will be presenting, "Trust Protectors: Bodyguard or Bully?– an overview of when and how to utilize them.”

 

·         Kevin Urbatsch, who will be presenting, “Top Mistakes to Avoid When Drafting and Administering Special Needs Trusts.”

 

Other topics include: "How to get your client into a SNF", "Working Backwards: How to Avoid a Malpractice Claim", "Getting the Most Out of IHSS," and "What Effect will the New Administration have on Medicare and Medi-Cal."

 

Other speakers will include Kathleen Day-Seiter, Jim Hyuck, Kevin Prindiville and more.

Recent CA appellate case holds that all attorney-client confidential communications are presumed privileged

In a recent California 4th Appellate District case, DP Pham LLC v. C. Tucker Cheadle as administrator, etc., the Court of Appeals dealt with a matter involving attorney-client privilege.

The Court of Appeals made clear that “the attorney-client privilege is an absolute privilege that prevents disclosure, no matter how necessary or relevant to the lawsuit.”  The Appellate Court went on to determine that the privilege, as a matter of law, attaches to all confidential communications that exist between an attorney and a client no matter whether the information communicated is in fact privileged.   Accordingly, it is neither necessary nor appropriate to review a communication between a client and lawyer to determine whether the attorney-client privilege protects it.  The fact that a client and attorney engage in confidential communications makes the communications privileged. 

The Court of Appeals held that once a party makes a prima facie showing that a confidential communication was made between a client and attorney, then it is presumed the privilege applies.  The burden to the opponent to establish waiver, an exception, or that the privilege does not apply and the opponent cannot rely upon the content of the communication to prove its case.

Demiris & Moore successfully obtains ex parte suspension orders of conservator of husband and wife

On January 19, 2017, in Alameda County Superior Court Cases numbered RP 16803069 and RP 16803088 Konstantine “Kosta” Demiris of Demiris & Moore was able to obtain two ex parte suspension orders against a conservator of the person and estate of a husband and wife.  Kosta was able to get his client appointed as the temporary conservator of both the person and of the estate of the elderly couple pending the hearing on the removal petition and pending the hearing to appoint a permanent successor conservator.

 

California Probate Conservatorship Burden of Proof is Clear and Convincing Evidence

Under California law, the California Probate Code requires that prior to establishing a probate conservatorship of either one's person or estate that the proponent or petitioner must prove their case by clear and convincing evidence.  This legal standard is codified under Probate Code section 1801.  This is not to be confused with the LPS conservatorship standard of beyond a reasonable doubt.

The clear and convincing evidence standard is greater than a preponderance of the evidence standard and less than the beyond a reasonable doubt evidence standard.  In other words, this is not an "iffy" case situation.  A petitioner is required to have actual evidence necessitating a conservatorship of one's person or one's estate.  Such evidence must be clear and convincing.

Avoiding Probate Without a Trust in California

A simple and often under-utilized tool to avoid probate of a decedent's estate in California when a person does not want to use a trust is to do so by way of establishing transfer on death beneficiary designations for one's accounts and property.  California allows a transfer on death transfer for real property as well as bank accounts and various brokerage accounts.  This is an often under-utilized or ignored tool for many people.  However, as with everything, there are pros and cons.  To best understand those pros and cons a consumer should contact an attorney experienced in probate law.