Another day, another decision by the California Court of Appeal making it more difficult for residential care facilities for the elderly (“RCFEs”) to enforce their arbitration agreements.
Upon admission to virtually any RCFE, a new resident will be asked to sign a stack of documents including an agreement to submit any future dispute to arbitration. Most RCFEs, understandably, would prefer
Latest from Trust on Trial
Who Protects the Interests of Children in Trust Disputes?
California trust disputes often involve the interests of parents and their minor children. Sometimes those interests conflict. When disputes are settled, who looks out for the interests of children under 18 years of age? Who checks that no child is left behind?
Probate judges, as explained in a prior post, may appoint a guardian ad litem to advocate for
Elder Abuse Restraining Orders May Prevent Estate Planning Changes
Can a California court stop others from changing an elder’s estate plan? Yes, in extreme circumstances, suggests a case arising from conflict in a blended family over which side would benefit from an elder’s trust.
In White v. Wear (2022) ___ Cal.App.5th ___, the Court of Appeal reviewed the issuance of an elder abuse restraining order that precluded the
Schism Deepens on California Trust Modification
The First District Court of Appeal recently joined the widening chasm amongst California appellate courts concerning trust modification procedure. Probate Code section 15402 is seemingly straightforward, consisting of a lone sentence: “Unless the trust instrument provides otherwise, if a trust is revocable by the settlor, the settlor may modify the trust by the procedure for revocation.” As noted in prior
Are an Estate Planner’s Notes Protected by the Attorney Work Product Doctrine?
California law is surprisingly unclear as to whether the notes of an estate planning attorney are protected from discovery by the attorney work product doctrine. This can become a big issue in a will or trust contest when the attorney’s files may contain pivotal evidence as to the client’s intent, mental capacity and/or vulnerability to undue influence.
In a recent
Final Ethics Opinion Guides Lawyers on Clients with Diminished Capacity
We wrote last July about a draft California ethics opinion regarding clients who may have diminished mental capacity.
After receiving public comment, the State Bar’s Standing Committee on Professional Responsibility and Conduct has now finalized Formal Opinion Number 2021-207, which is close in content to the earlier opinion.
Opinion Number 2021-207 is useful resource for all California lawyers who
California Court Gives RCFEs More To Keep Them Up At Night
Recent decisions by the California Court of Appeal have heaped stress on the owners/operators of residential care facilities for the elderly (“RCFEs”).
RCFEs, like other businesses, would prefer avoid the court system and jury trials by obtaining residents’ consent to the arbitration of any disputes that might arise. But as California appellate courts are making ever more clear, it’s one
“Predatory Marriage” Podcast
Vulnerable elders too often fall victim to predators who marry them for financial gain. But how should we balance the fundamental right to marry and enjoy companionship with protecting elders from financial abuse?
Attorney Ellen McKissock, a California thought leader on predatory marriage, spoke with me on Trust Me!, the podcast of the Trusts and Estates Section of the California
Blast from the Past – Trusts Subject to Medi-Cal Reimbursement
We begin the year with a case, Riverside County Public Guardian v. Snukst (2022) ___ Cal.App.5th ___, involving an elder with dementia who received Medi-Cal benefits.
The case, a blast from the past, illustrates how the State of California, under the law in effect until several years ago, could recoup the cost of such benefits from an elder’s revocable
Another Broad Reading of the Elder Abuse Act Protects Seniors
We “ring” in 2022 with a recent case that again shows the long reach of statutory financial elder abuse claims in California trust and estate litigation. In Ring v. Harmon (2021) ___ Cal.App.5th ___, the Court of Appeal considered an alleged loan scheme to drain equity out of a house held in a probate estate.
Even though the loan