by John T. Anderson, Chairman
Certified Specialist in Estate Planning, Trust
and Probate Law by the State Bar of California,
Board of Legal Specialization
The Los Angeles County Bar Association, Trusts and Estates Section, sponsored the PVP Brown Bag Lunch in D-11 of the L.A. Central Court on September 29, 2010. Andrew Wallet, Esq. of Hinojosa and Wallet, LLP spoke on “The Interplay Between Trust and Conservatorship Proceedings.” He said the mandate to a PVP Attorney is “What is in the Best Interest of the Conservatee.”
THAT IS SPECIFICALLY NOT TRUE. The mandate is to represent the interests of the conservatee. If they have the capacity to direct you, you must represent them; not what you think is best. Later, he modified his position slightly during discussion.
He says the directive to the appointed attorney has gone back and forth: Advocate v. Best Interest. He does Best Interest, realizing he is still to advocate. I suggest Best Interest, where you make that determination regardless of the conservatee’s wishes, has not been the position of the court or the law for many years; nor is it proper under the Rules of Professional Conduct.
The same rule applies to representing a party in a Trust situation. You can, in the Trust situation, at the initial hearing bring the Trust into the Court’s jurisdiction. If the court will not do this at an initial hearing, petition Ex Parte. Ask the court to appoint an interim Trustee to take charge of things, as opposed to a named Successor Trustee who is not a professional and lacks sophistication. Sometimes you can persuade the Successor to decline to act if you fear their capability to act.
Even with a conservatorship, if most assets are in a Trust, income/assets may not be readily available to support the conservatee. So, you petition the court to take jurisdiction of the Trust. Some courts will do that as part of the Conservatorship action (even if given a separate Case No.); others will not act on the Trust without a separate petition.
Getting a Trustee bonded is another safeguard.
Powers of Attorney are affected by the appointment of a Conservator. An Attorney-in-Fact is not under court jurisdiction.
Find-out if these exist and you can ask the court, with notice, to vacate the Powers of Attorney. Put it in your orders. Cite the Attorney-in-Fact/Agents to the hearing. Otherwise, you do not have control over these agents. You can cite them into court, your can file for accountings, you can seek damages.
You want to manage health care decisions. If there is an Healthcare Power or Advance Directive there is a conflict over who controls decision making.
If there are pending lawsuits, the conservator should substitute in as the party. Even with a Conservator, the Civil court can appoint a Guardian ad Litem. Try to avoid this conflict.
Only the Conservator of the Estate (not the Person) can bring an action on behalf of the Conservatee.
If the Conservatee is the beneficiary of a Trust: The Conservator of the Estate should get a copy of the Trust; get an accounting; and, make certain proper benefits are received.
If action needs to be taken on behalf of the conservatee and the conservator refuses to take the needed action, the PVP attorney can Petition the court to compel the conservator to act or give authority to the PVP attorney to act in his place.
Probate Code §2580 can be used to do estate planning for the conservatee. You must be able to prove to the court that the desired action is one the conservatee would take.
Use care in what you put in a Petition to the court that you do not violate attorney-client privilege in what you disclose to the court or others. It is a delicate dance, he says, especially where the client in not able to make informed decisions. He says that since the person may not have full capacity to make decisions or direct you, you are back to what you think is in their best interest. I suggest that is not the law regarding PVP counsel; legal counsel is legal counsel.
No rule gives exception, that I am aware of, that you represent the client. You are not the client. As GAL, best interest applies. You are the client. You speak for the person you were appointed for. That is not the same as PVP counsel.
Sometimes someone else shows up and says they represent the proposed conservatee. You should not just accept that; it is for the court to determine. You may have to tell counsel that you will ask the court to appoint an Evid. Code §730 expert to determine capacity to retain counsel. If the person cannot and the conservatorship incurs fees to determine this, the court may be requested to order payment of your fees by the allegedly retained counsel. And, what is their interest in that do they believe you, as PVP, can’t represent the conservatee adequately?
He further suggests that as PVP counsel, he represents the conservatee, even in a Trust matter. I disagree. I believe you must also get appointed in the Trust matter.
Judge Beckloff said last May in a seminar that there is no pendulum swinging back and forth–you are an advocate for what the client wants.
What about a jury? Or putting the proposed conservatee on the witness stand? If the proposed conservatee wants it, what do you do as their appointed counsel? What do the code and rules require of an attorney for a client? I think that if you cannot represent the person the way they want, you might have to petition to be replaced without disclosing information to opposing parties or the public. Do not violate attorney-client privilege. Use care in what might be disclosed that tells others what you are doing or thinking.
MARK YOUR CALENDAR: Upcoming Long Beach Bar Estate Planning, Trust and Probate Section Brown Bag Meetings at the Long Beach Superior Court, Dept. G (5th Floor), from noon to 1 PM:
Thursday, October 21, 2010 Judge Mitchell Beckloff on Updates from LA Dept.5: What’s Happening in Probate
December 2, 2010, Jim Birnberg, Esq. on Legislative Updates
NOTE: THE PROBATE CALENDAR WILL HENCEFORTH BE CALLED IN DEPT G on the 5th Floor (still Thursday afternoons, but not in Dept. 11)