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