ATTORNEY NEWSLETTER
Stopping Others From Changing An Elder’s Estate Plan
Cognitive Impairment Of Settlor
New Legislation Expands Use Of Restraining Orders
We at Evans Law Firm, Inc. often see situations where a new “friend” of an older person, caregiver, trustee, stepchild, or second spouse takes unfair advantage of the older person’s increasing dependency to arrange an estate plan benefitting themselves and cutting out the older person’s family. This fact patterns occurs most frequently in cases where the older person is suffering from Alzheimer’s or some other form of dementia and has lost the ability to manage their own financial affairs, or understand the consequences of what some person with undue influence over them (like a caregiver or trustee) is getting them to sign. A recent California appellate decision and legislation scheduled to take effect next year, both discussed below, expand the ways in which a family can stop “friends”, caregivers, trustees, second spouses, stepchildren and others from changing a senior’s estate plan. Evans Law Firm, Inc. law firm represents families of seniors who have been manipulated by caregivers, trustees, or others to change their estate plan to benefit themselves and disinherit family. Call us today at (415)441-8669. Our toll-free number is 1-888-50EVANS (888-503-8267).
Using A Restraining Order To Protect A Senior’s Estate Plan
In a recently reported case,[1] a California Court of Appeal upheld the use of an elder abuse restraining order to preclude an individual from making or facilitating any change to the estate plan of her 94-year-old stepfather. The 94-year-old man and his first wife created a trust in 1988 to benefit their three daughters. The man remarried in 2007; his estate at the time was valued at over $40 million. The second wife had two daughters from a prior relationship. By 2013, the man had significant cognitive impairment that left him susceptible to undue influence by those close to him. The second wife allegedly interfered with the man’s lengthy professional relationship with his attorney and blocked him from communicating with his daughters and removed their photographs from the house. In April 2020, the man’s biological daughter as trustee of the man’s original trust sought an elder abuse restraining order against the second spouse, stepdaughter, and their attorney, and several others based on a purported trust amendment dated January 2020 in which the man disinherited his biological daughters in favor of his second wife and her daughters. The stepdaughter appealed. The appellate court rejected her argument that the 2020 estate planning change did not amount to financial elder abuse because she did not take anything from the man and instead supposedly helped him achieve his own estate planning objectives. Quoting Cal. Welf. & Inst. Code Section 15657.03, the court observed: “The fact that [the stepdaughter] did not take, or possess, any of [the man’s] real or personal property is irrelevant” because elder abuse includes the taking of any property right “by means of . . . testamentary bequest, regardless of whether the property is held directly or by a representative of an elder.”
New Legislation
The California Legislature expanded Probate Code section 15657.03 by Assembly Bill 1243 in 2021. As we’ll discuss in a future post, AB 1243 will allow restraining orders targeting the isolation of an elder and also permit a probate court to find that a specific debt incurred by an elder was the product of financial elder abuse. This would for example give the Court the express authority to find that a loan or reverse mortgage taken out by the abuser on the elder’s property was the product of financial elder abuse and voidable. The statutory change, however, won’t take effect until January 1, 2023, giving the Judicial Council time to update Form EA-100 and related forms. White v. Wear and AB 1243 both point to expanded use of restraining orders in financial elder abuse litigation.
Contact Us
If you have a senior loved one who has been manipulated by caregivers, trustees, or others to change their estate plan to benefit themselves and disinherit family, contact Ingrid M. Evans at Evans Law Firm at (415) 441-8669, or by email at <a href=”mailto:info@evanslaw.com”>info@evanslaw.com</a>. Our toll-free number is 1-888-50EVANS (888-503-8267).
[1] Evans Law Firm, Inc. was not involved in the case in any way. The case is captioned White v. Wear, __ Cal. App. 5th __ (2022).
