On May 10, 2018, in the Superior Court of California, County of Contra Costa, Dept. 15, The Demiris Law Firm, P.C. and court-appointed counsel Matthew Toth Esq., were able to prevail at trial to maintain the appointment of a single-mother as conservator of the person and estate of her son. An action was brought to remove the duly court-appointed conservator by her ex-husband, who pursued the matter to trial. Konstantine "Kosta" Demiris and Heather Maslowski represented the conservator. Mr. Matthew Toth represented the conservatee. The trial lasted two-days.
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.
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.
In the case of the conservatorship of the person of B.C. (Ventura County), the 2nd District Court of Appeals determined that it was harmless error when the judge failed to advise the individual subject to the conservatorship proceedings of her right to a jury trial because the individual was represented by counsel. The Court also distinguished Probate Conservatorships from LPS Conservatorships. The Court stated that unlike LPS conservatorships where involuntary confinement can occur; Probate Conservatorships are different in that regard. Furthermore, the Court of Appeals stated that a citation was issued and served on the individual subject to the conservatorship proceedings advising her of her right to a jury trial. The Court of Appeals found that the individual did not contest that the citation was not properly issued or served. In fact, the individual responded to it by filing opposition papers. The Court of Appeals concluded that probate conservatorship proceedings are conducted under the law and procedure relating to civil actions, and, that such include trial by jury if demanded by the proposed conservatee. The Court of Appeals found that neither the individual subject to the proceedings nor her appointed counsel demanded a jury.
Recently, on September 15, 2016, attorney Konstantine "Kosta" Demiris, spoke to the members of the Eastern Alameda County Bar Association. The presentation provided MCLE to the attorneys present and covered legal topics focusing on financial elder abuse and elder law. Two case studies were provided from litigation cases tried by Kosta Demiris as well as an outline of cases and statutory law involving financial elder abuse litigation
A copy of the presentation description is below.
EACBA 3rd Thursday MCLE Luncheon
Thursday, September 15th, 2016
Program presented by Konstantine "Kosta" Demiris of Demiris & Moore
Thursday, September 15th 12:00pm-1:30pm
(program begins at 12:30-1:30)
Handles Gastropub - 855 Main St., Pleasanton
$35 EACBA members/$50 non-members/$30 for staff
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.
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:
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.