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.

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.

Undue Influence - not really "influence" more "trickery" and unfair result.

Many practitioners and laypeople have confused what the legal term of art "undue influence" actually means.  It has almost come into the mainstream to commonly refer to "influencing" or "persuading" that results in a consequence that someone else does not think is “right.”  However, such influence is not necessarily "undue influence."  

In fact, undue influence has been interpreted in case law as the hijacking or overtaking of person’s free-will by another which causes a result that is “inequitable” as the result of “excessive persuasion.”  This often times results in an “undue” benefit to the abuser or someone the abuser wishes to benefit who is not the victim.  In other words, the victim would not have possibly taken such action but for the abuser’s “hijacking” of the victim’s free-will and the abuser would not have otherwise benefitted.  This can occur when the abuser is in a position of trust or authority over the victim and uses such power or authority to obtain an unfair advantage over the victim. 

It is almost like comparing the term "fan" and “fanatic.”  The term “fan” is used to refer to a person who supports one team or is an enthusiast for a team or a cause.  The term is actually derived from "fanatic," which is quite different and associated with someone who is motivated by an extreme, unreasoning enthusiasm, as for a cause.  In other words a fan is okay and acceptable in society.  A fan tends to be someone who is an alumni of a particular school, provides support for that school, and yet wishes all schools good luck and success.  A fanatic is likely someone who never went to the school, doesn’t know much about the school, but is obsessed with the school and hates all other schools simply because it is not the one “right” school.  The fanatic often has bad intentions towards people who are not on his/her side and wishes ill or harm on the competition and non-fanatics of that person’s team or cause.  One form is normal or an accepted “every-day” occurrence; the other is an extreme and not acceptable.

Similarly, the comparison can be applied to one who influences and another who unduly influences.  Telling a person’s parent that you love them, wish for them to be well, suggesting they downsize or upsize, suggesting they spend their money while alive, live their dreams, or provide for their family is likely not undue influence.  Providing a parent care, love, and affection and receiving a substantial gift as a result may not be “undue influence” either if that was what the parent intended without your pressuring them to do so and if such gift is “equitable” under the circumstances.  For example if you provide $20,000 worth of care, but have no car and tell the parent you need a car to continue providing care and that parent buys you a $15,000 car or pays you $15,000, then that does not appear to be undue influence.

Telling a person’s parent that they better give you all their money so you can protect it because “no-one can be trusted” and that only you can be trusted, or, telling the loved one that their trusted family members, friends, attorney, broker, doctor, or other professional of 30+years is dishonest (even though you have no proof or evidence) suggests undue influence.  Providing no care for a parent, but suggesting you could really user $300,000 yacht (when never having received a yacht before) or visiting on the holidays and “begging” for thousands of dollars to pay off debts suggests undue influence.

As one can see, separating influence from undue influence requires careful attention and analysis.  Simply getting a large gift, even one that you may have indirectly asked for, is not necessarily undue.  

If you believe that you or a loved one may be at risk of undue influence or may be a victim of undue influence then you should contact an experienced elder law attorney, such as the ones at Demiris & Moore to determine whether a conservatorship or other legal action may be needed.

California Attorney/Trustee Surcharged for Excessive Fees Upheld on Appeal

In the Conservatorship of the Person and Estate of Lester Moore

Friend v. Salzwedel

William Salzwedel, a California licensed attorney, had his attorney fees/trustee fees and costs surcharged by $96,077.14.  In the decision, the Second Appellate District Court of Appeals upheld the trial court’s ruling, which held that Mr. Salzwedel put his own financial interests ahead of the interests of his client, an elderly person suffering from dementia.

                Mr. Salzwedel was hired by Lester Moore, an elderly man who was subject to a conservatorship petition against him.  Mr. Moore was found by his doctor’s to have impaired capacity (he was previously determined by his treating physicians to suffer from dementia and lacked the ability to handle his affairs).  During the conservatorship proceedings Mr. Salzwedel then amended Mr. Moore’s estate plan by having Mr. Moore modify his trust to name Mr. Salzwedel as the temporary successor trustee; obtained Mr. Moore’s resignation as trustee; and created a durable power of attorney appointing Mr. Salzwedel as Mr. Moore’s agent under the power of attorney also known as his attorney-in-fact.  Mr. Moore’s new estate planning disinherited his family in favor of what the Court determined to be one of Mr. Salzwedel’s “allies.”  During his tenure as trustee, Mr. Salzwedel billed at his attorney rate.  His total fees were $148,015.11.

                The billing matters were brought before the Court by Mr. Salzwedel who filed a petition to settle his accounting that were objected to by the temporary conservator.  The trial court ruled before the evidentiary hearing that the fees ($148,015.11) were disapproved absent a showing that the services benefitted Mr. Moore in the amounts charged and a showing that Mr. Moore had the capacity to contract for and approve the fees when the services were rendered.  Mr. Salzwedel used a “spare-no-expense strategy,” which the Court of Appeals stated calls for close scrutiny on questions of reasonableness, proportionality, and trust benefit and that where the trust is not benefited by the litigation or does not stand to be benefitted if the trustee succeeds, there is no basis for the recovery of expenses out of the trust assets.

                Of the fees, $70,044.99 were attorney fees/trustee fees, $25,015.13 were medical expert fees (part for a “celebrity psychiatrist” who didn’t even render a written report or testify), and $1,017.02 were costs.

Conservatorships - Transfers from California to other States and from other States to California

Relatively new legislation allows for streamlined measures for a conservatorship that is established in California may be transferred to another state.  Likewise a conservatorship established in another state may be transferred to California. 

This is a result of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act ("UAGPPJA") being accepted as part of the California Conservatorship Jurisdiction Act ("CCJA").  This legislation is effective as of January 1, 2015 to conserved individuals who are to be moved to or from California after conservatorship proceedings have begun.  The CCJA applies as of January 1, 2016, to all new petitions to establish probate conservatorships such as conservatorship of the person, conservatorship of the estate, or both, for individuals who have moved to California within six months before proceedings are initiated.

The California Probate Code has codified these laws under Probate Code sections 2001-2003.  See the link attached:

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=02001-03000&file=2001-2003

             Only a conservator appointed in California may petition the Court for transfer to another state.  All persons entitled to notice in California are required to be served notice.  A hearing is then held by the court to determine if transfer will likely be accepted by the other state.   There are three things that must also be found by the Court:

1)      The conserved person is physically present in the other state or reasonably expected to move permanently to the other state.

2)      No objection to the transfer has been made.  If an objection has been made then the Court must determine the transfer would not be contrary to the interests of the conserved person.

3)      Plans for care and services for the conserved person in the other state are “reasonable and sufficient.”

The Court can thereafter make a provisional order granting a petition to transfer proceedings to another state and direct the conservator to petition the other state to accept the conservatorship.

The Court will issue a final order confirming the transfer and terminating the conservatorship upon receiving both:

1)      A provisional order accepting the transfer of the proceeding from the Court in the other state by way of orders that are similar to the requirements in Probate Code section 2002.

2)      The documents required to terminate a conservatorship in California, including, but not limited to, any required accounting.