Telephonic Court Appearances - why do lawyers shy away from them?

In an article published in the February 2016 edition of the Contra Costa Lawyer magazine, civil litigation and elder law attorney Konstantine "Kosta" Demiris provides an analysis on telephonic court appearances.  The article provides insight into the legislative history behind promoting court call appearances, the factors lawyers consider in making such appearances, as well as the pros and cons of making such remote appearances.

You may read the entire article by clicking on the link below:

http://cclawyer.cccba.org/2016/02/telephonic-appearances-and-your-practice/

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.

Konstantine "Kosta" Demiris to speak about Probate Law at CCCBA MCLE Event December 8, 2015

The Contra Costa County Barristers Section is sponsoring an

Introduction to Probate 101
Tuesday, December 8, 2015; 5:30 pm – 7:00 pm
 

The location for the event will be at the CCCBA Office's - 5th floor conference room
2300 Clayton Rd
Concord CA 94520

The event is being provided by Contra Costa County Bar Association ("CCCBA").

Konstantine "Kosta" Demiris from Demiris and Moore in Walnut Creek will be one of the featured speakers at the event along with Matthew B. Talbot.  Kosta Demiris is the President of the CCCBA Barristers Section and Member of the Elder Law Board.  Mr. Talbot is a board member of the Barristers Section.

The event is open to everyone include non-members of the Contra Costa County Bar Association.  See the link below for more information and to sign up.

http://www.cccba.org/attorney/calendar/event.php?id=7003

 

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.

Konstantine "Kosta" Demiris speaks at CCCBA Law Student Mixer at John F. Kennedy University College of Law

On August 20, 2015, Konstantine "Kosta" Demiris was invited by Eliza Gryko to speak at the Contra Costa County Bar Association ("CCCBA") Law Student Mixer at John F. Kennedy University College of Law in Pleasant Hill, CA.  Eliza Gryko is the co-section leader of the CCCBA's Student Section, in addition to being a registered nurse, professionally licensed California fiduciary, and 2016 JD candidate.

The topics discussed were networking and mentoring.  Kosta's speech focused on how networking and mentoring are necessary elements in the development of a lawyer.  He used real-life examples involving sports and, amongst other things, Steve Urkel and Laura Winslow.   Kosta discussed the need for law students who are aspiring lawyers to adapt to the legal world and reach out to fellow students, lawyers, and other professionals in all arenas.  He stressed the need to sacrifice and be willing to give, even when there doesn't appear to be any immediate reward in sight.  

Kosta's speech was part autobiographical, discussing his travails from working as a deputy county counsel and practicing an array of legal areas, to finding his niche and becoming a recognized member of the Contra Costa County legal community; a business partner of a Bay Area litigation firm handling will, trust, conservatorship and general civil litigation; and his service on various prestigious boards including the Elder Law Section, as President of the Barristers Section, and as a delegate representing the CCCBA in the Conference of California Bar Associations.

Kosta discussed his fortune to work along some of the great attorneys and Judges in Contra Costa County, well-respected members of the community, and hard-working people who have helped him by sharing something incredibly valuable and priceless - their own personal experiences.  Kosta's speech concluded with an acknowledgment of the wisdom of the famous Greek storyteller, fabulist, and slave, Aesop, who many revere today and hold in high esteem.  Kosta's speech followed that of Cole Peters, Esq., a personal injury and worker's compensation attorney who shared his personal experiences in transitioning from being a law student to a lawyer in private practice.

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.