I’ve Got a Secret: Confidentiality and the PVP Attorney

Our speaker at the June 8, 2012 meeting of the Estate Planning, Trust, and Probate Law Section of the Long Beach Bar Association was the highly regarded Samuel D. Ingham, III, Esq.  His topic, which qualified for 1 hour of MCLE Ethics credit and Estate Planning and Probate Specialization Credit, was “I’ve Got a Secret: Confidentiality and the PVP Attorney.”  Judge Paul, Darcy Horton, and Ellen Teguh were all present and contributed to the discussion from the court’s viewpoint.


Confidentiality:  Keep the proposed conservatee’s information out of the public’s eye.  The court has to balance interests between the proposed conservatee’s right to privacy and the public’s right to access.


There has been an evolution from the court appointed attorney (PVP or Probate Volunteer Panel attorney) being the “eyes and ears of the court” to being an advocate–kind of a public defender-for the conservatee.


We are kind-of in the middle of these two views at present, but I (your scrivener) would error on the side of being the client’s advocate.


Conservatorship of Schaeffer (2002) 98 Cal.App.4th 159 [119 Cal.Rptr.2d 547]–PVP filed report with the court and did not serve it on anyone.  The Court of Appeals overturned and said the report has to be served on the other parties.  Left unsaid was whether the report had to be made a part of the court file.


P.C. §1051 continues the prohibition on ex parte communications by the PVP.  Once in a blue moon, it might be justified.


On occasion, an ex parte letter from a neighbor or other person comes-up requiring the court to exercise discretion and, for example, send the court investigator out.


Local Rule 4.127(a) requires a PVP Report.  Care must be used regarding what private information (i.e., medical, financial, identification numbers, explosive facts or allegations) goes into the report or should be kept out.


We are first attorneys, and next, court-appointed counsel.  So. E.C.§954, regarding the client precluding disclosure of information and other rules apply.  It may be helpful for the bench officer to speak directly to the proposed conservatee to obtain information that you cannot/should not elicit.


The PVP Attorney could/should assert attorney-client privilege before answering questions concerning conservatee’s private information.


One judicial officer, of the extreme advocacy view, removed a PVP Attorney and suspended a hearing when the PVP was allowing the conservatee to discuss what medication the proposed conservatee was on.


P.C. §1471, under which we are usually appointed, indicates you are appointed to represent the interests of the client.  The client has all rights and remedies under the Constitution and a Conservatorship represents a possible removal of many constitutional rights.  You must act to preserve those rights.


You are not immune from being sued as a court-appointed attorney.  You must carry E&O insurance to protect yourself.


Documents you file are indexed and available to the public at the courthouse. 


Certain forms, labeled “Confidential” by the court go into a separate file and are not, generally, available to the public.  PVP reports are not in that file; they are available in the Public file.


What can you do with information you think the court needs, but the client will not agree to release?


1.    Court testimony.  They could be cited to appear.  Defer questioning to the bench officer.


2.    Lodge a report CRC 8.46(b)(3) temporarily deposited (lodged) but not filed (e.g., financial or medical records).  Do this in the courtroom, NOT AT THE FILING WINDOW, in a sealed envelope marked “Lodged-Not Filed.”  A PVP Report may have attachments you do not want reproduced, indexed, etc.  THEN, have it returned at the close of the hearing.  Lodging puts a burden on the court and the clerk as to how to handle it, and mistakes are made.


3.    Sealing of a file is an option.  Pre-1999, you requested a sealing and the file was completely sealed.  NBC Subsidiary, Inc. v. Superior Court (1999) 20 Cal.4th 1178 [86 Cal.Rptr.2d 778, 980 P.2d 337] changed that.  In that case, and CRC 2.550 & 2.551, which track the case, the Supreme Court found that the bench officer must do a balancing act, with five specific findings that the court must rule on in order to seal a matter.  You must, in your moving papers, go through each finding that must be made.  Also, put those specific findings in the Order or another judge may order the matter unsealed. 


4.    Sealing v. Redacting.  Which is the least restrictive method is what a court may consider.


5.    Closing the Courtroom.  There has to be a reason (such as testimony which is extremely damaging or humiliating to an individual).


As an advocate, you have the responsibility to look at all of this.  You have the responsibility to look around the courtroom and consider: are there issues requiring the courtroom to be closed or certain individuals excluded?


Fees:    It is contemplated that a PVP Attorney will get paid at the end of the matter.  However, some circumstances dictate, economically, for payment on an ongoing basis.  The request may be in your report, as a separate Fee Petition, or as an oral request. A large fee request should be by a separate, noticed petition.  A smaller fee request does not warrant a separate petition.  Failure to give proper notice is a basis for denying a fee request.


CRC 7.702, 7.751 sets forth what must be in a fee request.  One is a detailed time bill (some of which may need to be redacted if confidential). 


Not just a bill, but also a narrative as to why you should get paid.  Don’t be humble.  If you have expertise, set it forth.  Spell-out how you benefitted the conservatee.  Sell the judge (in a short, sweet, succinct paragraph) on why you deserve this fee.


Use care with social networking and listserves, guarding what you or your client expose.


JUST A NOTE: We now have authorization to give specialization credit, as well as the usual MCLE credit, for meetings of the Estate Planning, Trust, and Probate Law Section of the Long Beach Bar Association.




                _________________________________
                John T. Anderson, Section Chair
                Certified Specialist in Probate, Trust and Estate Planning
                By the California State Bar Board of Legal Specialization

Copyright © 2012 by John T. Anderson
All articles by John T. Anderson may be copied for personal use, only. All articles or outlines from others may be used only with their personal authorization. Any approval is for personal use, only, and for non-commercial purposes.
File Location: C:\Users\John's LT\Documents\Work\Website\Articles for Website\Word Version of Articles From Lisa\2012.06.15__Tidbits_Ingram_PVP.docx

The Standard of Capacity to Amend a Trust

The Orange County Bar Association Trust & Estate Section met on June 13, 2012.  The discussion was about Anderson v. Hunt (2011) 196 Cal.App.4th 722, on the issue of the Standard of Capacity to amend a trust.  Is the Amendment complex or in the nature of a Will?  What is the standard for capacity to amend a trust?  A will?


The speaker, John Belcher, Esq., represented the Petitioner in Anderson v. Hunt.  He is a Plaintiff’s attorney and not a Probate attorney.  There was an A/B Trust.  Mom died, Dad lived.  They are into the case $80,000 in costs (which the court has, thus far, refused to approve payment on as the case continues on appeal) and, I believe he said, up to$500,000 in fees thus far.  Joint tenancies by Dad with Defendant, who he referred to as the “abuser,” were set aside for lack of Dad’s capacity.  The living trust was considered complex; but, five amendments were considered simple/will substitutes, benefitted Defendant Abuser, and were upheld on appeal.


The Appellate Courts said that the standard for simple amendments will be the standard for a Will; so, the “Elder Abuser,” Defendant, won.  Forty-one court appearances or hearings were made.  Jury trial was waived.


The Defendant may end up with $1.7 million if the case stands, as some assets roll over into the Trust.


Dad was presumed to have capacity.  Defendant was on the DPAHC and had all the medical records.  Sixty-one subpoenas later, they were getting records they needed on capacity.  Dad had thirty bottles of vodka in the trunk of his car.  He was drinking a bottle per day.


When son took Dad out, Defendant was constantly concerned Dad was changing his estate plan.  So, Defendant took him to an attorney where he said, “I don’t know if I signed estate documents, but if I did, I want things back as they were to Pauline Hunt.”


Dad hadn’t filed tax returns in eight years.  When he got out of a care facility, Defendant took him to banks to change accounts to Joint Tenancy with her. $600,000 was transferred.  One account they tracked down was an inheritance Dad received from an aunt that defendant put directly in an account in her name.


Attorney Belcher said that the trial court found that Dad did not have capacity to change benefits to Defendant Hunt; and, even if he did, there was undue influence.


There is no case law defining complex vs. simple Trust amendments.  The Appellate Court called the Amendments simple, more in the nature of a Will!  There are protections with execution of Wills that don’t exist for Trusts, and thus capacity requirements are different.


The Appellate Court applied P.C. §6100.5, the capacity for a Will, to the Trust Amendments.  Mr. Anderson actually restated the Trust and changed the Trustees.  Anderson ignored the A/B issues and treated the trust as a standard trust.


Attorney Belcher says, neither side raised or briefed the issue of the Trust amendments being “complex” or “simple” and different rules applying.  The Appellate Court raised this issue on its own and did not permit new briefs on that issue.


How does this affect us?  Is capacity there if you can show a person understands a part of the document?  A Trust is a contract and it is evaluated as such.  You must understand the terms and various types of contracts may be treated differently.  


What is going to happen is:


(a)    How do you decide in your office if the client has the capacity to do what he says he desires?


(b)    How much litigation is there going to be over this issue as         Trusts are amended and the client has the lesser capacity for a Will–was the change simple, so it works; or complex, and the amendment fails?


Where are the guidelines?  Would you be better with the protections or a Will, with witnesses?



JUST A NOTE: We now have authorization to give specialization credit, as well as the usual MCLE credit, for meetings of the Estate Planning, Trust, and Probate Law Section of the Long Beach Bar Association.




                _________________________________
                John T. Anderson, Section Chair
                Certified Specialist in Probate, Trust and Estate Planning
                By the California State Bar Board of Legal Specialization

Copyright © 2012 by John T. Anderson

All articles by John T. Anderson may be copied for personal use, only. All articles or outlines from others may be used only with their personal authorization. Any approval is for personal use, only, and for non-commercial purposes.

File Location: C:\Users\John's LT\Documents\Work\Website\Articles for Website\Word Version of Articles From Lisa\2012.06.14_Anderson_v._Hunt_Capacity.docx

A DISCUSSION ON POWERS OF APPOINTMENT

A Power of Appointment should not be confused with a Power of Attorney or the positive aspects of keeping a calendar of appointments. A Power of Attorney is a crucial estate planning tool in many situations but not all of your calendar of appointments are crucial to you being where you are supposed to be when you are supposed to be there.

A Power of Appointment, in a Will or Trust, gives the authority to a person, named in the document, to determine the ultimate distribution and terms of distribution in a manner and within the limits specified. The Power of Appointment may be very broad and could cause, as a result of the Power (even without it being exercised) the inclusion of the value of the estate in the estate of the agent named to exercise the Power. Or the Power of Appointment may be limited to a specific class of beneficiaries (e.g., “among my children living at the time of my death”), in which case the assets to be distributed are not included in the agent’s estate, by virtue of the limited Power of Appointment.

The document providing for the Power of Appointment should set forth the manner in which the Power may be exercised (in any writing referring to the Power; in a Will; in their last Will; in their Will admitted to probate).

The document providing for the Power of Appointment should also specify whether the Power is general or limited; and, inclusive or exclusive.

In an Appellate Court decision from the Fourth Appellate District, the Court issued a decision overturning a trial court decision concerning a Power of Appointment. In Sefton v. Sefton (May 31, 2012, D059211) ___Cal.App.4th. ___ [2012 Cal.App. Lexis 643], out of San Diego Co., the Court had to decide what law to apply to the exercise of a Power of Appointment which was exercised to exclude one beneficiary from inheriting. Common law was in effect when the document creating the Power of Appointment was executed and when the creator of the Power of Appointment died. California had a statute on Powers of Appointment and it was later rescinded. After the death of the creator of the Power, but before the exercise of the Power of Appointment by his son, a new law was put in effect—Prob. Code § 652. This law was in effect when the holder of the Power wrote his Will referring to the Power of Appointment and excluding one person in the class of beneficiaries from inheriting. Several years later he died and the exercise of the Power of Appointment became irrevocable.

WHY IT MATTERS

In his Trust of 1955, Grandpa (who died in 1966) left a life estate to his son (“Father”) with the remainder to his three grandchildren living at the time of his death and subject to a Power of Appointment to Father, the father of the three children. One of the children was from Father’s first marriage and two were from his later marriage. Father died in 2006 leaving a Will exercising the Power of Appointment (over assets which may total several hundred million dollars) to exclude his first son.

Excluded son contested the exercise of the Power of Appointment to exclude him. The trial court sustained a demurrer by the Trustee and other heirs, without leave to amend. Thus adopting the position that the 1970 law, with retroactivity, applied, and was “inclusive,” allowing the total exclusion of a beneficiary. The Trustee and other beneficiaries also argued that the petition by the eldest son should be denied as violating the three year statute of limitations. They wished to start the three years from the date Father exercised the Power of Appointment by mentioning it in his Will. The Appellate Court dismissed this argument stating that their father was still alive at that time and thus excluded son number one had no claim against his father then. The exercise of the Power of Appointment could have been changed at anytime up to his death. Only at his death was the exercise irrevocable, commencing the statute of limitations.

The Court discussed the retroactive effect of the 1970 Act and the need to carry-out the clear intention of the Grandfather, with the execution of his estate plan and his death, coming prior to the 1970 legislation.

Estate of Sloan (1935) 7 Cal.App.2d 319 [46 P.2d 1007] was the law in effect when the estate plan was executed and when Grandpa died. Estate of Sloan applied the exclusive rule regarding Powers of Attorney which means all of the members of the class of beneficiaries must receive what the court determines is a “substantial” portion of the estate. Contrary to that rule, the 1970 statue was “inclusive” and allowed the exercise of the Power of Appointment to exclude some beneficiaries, benefit some over others, or set terms on the inheritance.

The Appellate Court found that the law in effect when Grandpa executed his estate plan, and when he died, which he is presumed to have known and depended on in his estate plan, would apply.

Read the Sefton case for a discussion of Powers of Appointment; retroactivity; and, inclusiveness versus exclusiveness.

                                 _________________________________
                                 John T. Anderson, Section Chair
                                 Certified Specialist in Probate, Trust and Estate Planning
                                 By the California State Bar Board of Legal Specialization

Copyright © 2012 by John T. Anderson

All articles by John T. Anderson may be copied for personal use, only. All articles or outlines from others may be used only with their personal authorization. Any approval is for personal use, only, and for non-commercial purposes.

File Location: C:\Users\John's LT\Documents\Work\Website\Articles for Website\Word Version of Articles From Lisa\2012.06.14 A Discussion on Powers of Appointment.docx

LIFE SUPPORT DECISIONS IN THE SETTING OF A CONSERVATORSHIP

The following is an edited version of an exchange on a legal listserv.  This brings up a point raised by an expert at our last Long Beach Bar Assn. Probate and Trust Section Brown Bag Lunch.  Sam Ingham, III, Esq., an expert and friend, commented on the dangers of putting anything regarding a client or a case on a listserv or social networking site.  In addition, be aware that these same sites are available and may be seen by opponents or court personnel.  Having said that, the following inquiry came up on a listserv.  The response, edited by me and published with permission, is meant to alert all of us to issues which may arise when confronted by life support issues during a conservatorship.


The inquiry:  I have a client who is the conservator of her mother.  The mother has recently come down with pneumonia.  She had to be placed on life support.  My client “knows” that her mother would not have wanted to be on life support. She does not have any documents stating that but that is how her mother dealt with their father when he passed.  The order in the conservatorship has an attachment that states: Court granted 2355 powers with notification to XXXXXXXXXX before withholding life-sustaining medical treatment.  We have called XXXXXXXXXX and sent him an email, but while I am waiting for his response, I wanted to check and see if any of you knew if there was something other than giving notice to XXXXXXXXXXXX we would have to do before taking the conservatee off of life support?


The response from longtime friend, peer and highly esteemed Orange County attorney Ernest Hayward: 


The issue you now present is far too important for me to ignore your inquiry. The facts you present are that the conservatee has no known and executed Advance Health Care Directive or POLST (Physician’s Order for Life Sustaining Treatment), nor an older form Durable Power of Attorney for Healthcare, nor a Living Will, nor any signed document expressing the wishes and intentions of the conservatee on these important end-of-life issues.


Even with Probate Code Section 2355 powers (exclusive authority vested in the conservator for medical treatment), I would NOT advise a client of mine to either refuse life-sustaining treatment recommended by a treating physician, and certainly not to WITHDRAW such life-sustaining treatment (a virtual death sentence in most cases) without specific court authority and the issuance of a court order, pursuant to a Petition for Instructions, given on noticed hearing, not only with notice to the court-appointed attorney for the conservatee, but to all of the conservatee's relatives within the second degree, including spouse, children, grandchildren, all brothers and sisters, as well as any party who may have previously appeared in the conservatorship proceeding.


Your burden is to present to the court clear and convincing evidence of the conservatee's known wishes and intentions under the specific circumstances in which we find her today. Oral testimony of relatives, friends, neighbors and treating physicians is admissible on the subject, and their testimony as to the conservatee's prior statements about her wishes and intentions should clear the hearsay objection because such testimony is more in the nature of operative facts to establish the key issue, which is the conservatee's prior wishes and intentions and whether they should control present decision-making.  As to possible hearsay objections and the past state of mind exception, what has been said by the conservatee previously regarding her wishes also speaks to her intentions and instructions, I still think her prior statements in that regard are "outcome determinative," on a Petition for Instructions, and perhaps are not hearsay at all, but are operative fact.


If the court is convinced by extrinsic evidence that the conservatee clearly, unequivocally defined what she wanted and did not want, under circumstances identical or closely similar to those in which we find her today, then the court may allow the conservator to make the decision to not engage in medical intervention (and thus to issue a "do not resuscitate" order), or, if treatment began and is ongoing, to cease the medical interventions or use of devices employed presently (such as gastrostomy feeding or the use of a ventilator, or kidney dialysis, for example).


The Orange County Public Defender's Office, for example, when appointed as counsel, will vigorously investigate and insist upon a complete evidentiary hearing leading to a court order on facts such as those you present. They will insist upon you meeting the burden of proof by clear and convincing evidence presented by the conservator and her counsel to the court of the conservatee's clearly stated intentions under conditions identical or similar to those presently existing, and that the burden has been fully met.


A Deputy P.D. and this responder have had a couple of "knock down--drag out" cases on facts similar to the ones you present. I took those cases to hearing precisely because my client and I believed we had such evidence. The P.D. was not as convinced as I was, and he wound up on the fence, so we had to put on the case, and the judge ruled (in our favor). We had a holographic Will that stated the consevatee's intentions in her very own words. It was interpreted by the judge as clear and convincing directions to her executor of what to do and what not to do on end of life issues. The use of her own words was both descriptive and definitive of what she wanted done in her present medical circumstances. The stars lined up in the case. Not all cases will be that easy for a judge to resolve.


At least one Orange County Counsel disagrees regarding the authority given when the court grants Probate Code Section 2355 powers.  This individual believes the conservator then has the authority to order a "no code, do not resuscitate" order, and can refuse medical interventions, based on the conservator's good faith belief that this course of action is what the conservatee either said she wanted, or what is in the conservatee's best interests.


Put this position in the context of a private professional case manager, appointed as conservator by the court as a compromise due to family conflicts, or abuse, and who did not know the conservatee prior to appointment, and cannot personally attest to what the conservatee might want under any set of defined medical circumstances.  The question then posed might well be:  


"Did we appoint some stranger and grant her life and death decision-making authority, with no further hearing required, and with no notice to family members, and with no court affirmation of his intended decisions or what effect they are likely to have on the life of the conservatee, even when that effect is likely to be the end of her life?"


Welcome to a changing world, where the economics of care may soon trump all other considerations, but for the richest among us, as Medicare utilization review guidelines may now result in the denial of admission to acute care hospitals, upon a hospitalist's (gate keeper's) determination that "the patient is in the active process of dying, and there is nothing, medically, that can be done in this hospital to prevent it."  Typically followed by:  "We urge you to take her home with hospice care." 


We were warned this day might come, in "Brave New World,"  "1984" and "Soylent Green."  But so soon...?


Note that the court does not issue medical orders or decisions as to courses of treatment or cessation of treatment. The cases all indicate the courts merely allow or prohibit the conservator from taking a course of action, and from there on, it is up to the conservator. The court does not act as some "super conservator" in making medical decisions for conservatees.

                                                     _________________________________
                                                     John T. Anderson, Section Chair
                                                     Certified Specialist in Probate, Trust and Estate Planning
                                                     By the California State Bar Board of Legal Specialization

Copyright © 2012 by John T. Anderson

All articles by John T. Anderson may be copied for personal use, only. All articles or outlines from others may be used only with their personal authorization. Any approval is for personal use, only, and for non-commercial purposes.

File Location: C:\Users\John's LT\Documents\Work\Website\Articles for Website\Word Version of Articles From Lisa\2012.06.12 4 BLOG--LIFE SUPPORT DECISIONS IN THE SETTING OF A CONSERVATORSHIP.docx

Probate Notice - Specialist Credit

Probate, Trust and Estate Planning Tidbits.
by John T. Anderson, Chairman
Certified Specialist in Estate Planning, Trust
and Probate Law by the State Bar of California,
Board of Legal Specialization

Probate Notice

Specialist Credit

I have been informed by the Long Beach Bar Association that our Estate Planning, Trust, and Probate Law Section Brown Bag meetings have been approved for Specialist Credit in the area of Estate Planning.


From now on, attendees will have a two separate sign-in sheets and certificates, one for MCLE credit and one for Specialist Credit, at each qualifying meeting.


In addition, I am informed that our meetings for the past two years have been approved for retroactive Specialist Credit.  The method for obtaining proof should be available soon.  I will let you know as soon as I have more information.


Our next meeting is on Thursday, June 7, 2012 from noon to 1:00 PM in Department D-4 of the Long Beach Superior Court.  Our speaker will be Samuel D. Ingham, III, Esq. who will present “I’ve Got a Secret: Confidentiality and the PVP Attorney.”

                _________________________________
                John T. Anderson, Section Chair
                Certified Specialist in Probate, Trust and Estate Planning
                By the California State Bar Board of Legal Specialization