Trusts & Estates Law Blog

When Do You NOT have the Right to Remain Silent? Conservatorship Proceedings and Equal Protection Clause Claims

Posted in Conservatorship, Estate and Trust Planning

Thanks to Law and Order, we’re all familiar with the beginning of a person’s Miranda Warning: “You have the right to remain silent.  Anything you say can and will be used against you in a court of law.”  What many may not know, however, is that this is a right only afforded to those involved in criminal proceedings.  In civil cases, there is no constitutional right to refuse to testify.  Historically, this has been intended to ensure that our criminal justice system—which can deprive a person of their freedom, property, and even their life—remains accusatorial, not inquisitorial.  A civil matter, on the other hand, is meant to resolve disputes between individuals and does not threaten the same consequences, so public policy favors bringing forth the information that a person’s testimony offers , even if it is against his or her self-interest.

A recent case, however, raised the somewhat murkier question of what standard should apply in conservatorship proceedings.  Under the Lanterman-Petris-Short Act (the “LPS Act”), if a person is found to be gravely disabled as the result of a mental disorder and unable to provide for his or her own food, clothing, and shelter, he or she may be committed to an involuntary conservatorship.  In this situation, a conservator makes all decisions regarding the person’s living situation, finances, and medical care, and in some cases the conservatee may be confined to an institutional care setting.  In the Conservatorship of the Person and Estate of Bryan S. [Citation] (Conservatorship of Bryan S.), the proposed conservatee, Bryan, argued that he should not have been forced to testify at his conservatorship trial.  Bryan claimed that he was similarly situated to those found not guilty by reason of insanity and those subject to sexually violent predator and mentally disordered offender proceedings, all three of which classes have been found to have the right not to testify.  Under the equal protection clause of the Constitution, Bryan argued, he should be entitled to the same rights.

While the history and nuance of the equal protection clause is extremely complex, at its most basic, it is meant to ensure that the state applies its laws equally to all.  The threshold question of whether equal protection principles apply is whether the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.  In regards to potential conservatees under the LPS Act, the California Court of Appeals clarified in the Conservatorship of Bryan S. that such individuals are not similarly situated to individuals facing commitment as a result of criminal acts related to a mental health condition.  Therefore, LPS Act conservatees are not similarly situated and not entitled to refuse to testify at their conservatorship trials.

As the court explained, the LPS Act was designed to provide prompt evaluation and treatment for individuals with mental health disorders and to provide them with individualized treatment, supervision, and placement options, including being placed in non-institutional settings with family or friends, if appropriate.  The LPS Act is meant to protect public safety, but also to protect people with mental health disorders from criminal acts.

While Conservatorship of Bryan S. clarifies that a LPS Act conservatee cannot refuse to testify at his or her trial, it also confirms that, consistent with prior case law, a prospective conservatee will not be compelled to answer questions that may incriminate him or her in a criminal matter.   So while the right to remain silent does not apply in all settings, it is absolute in its protection against self-incrimination, at least for criminal acts.

Casebriefs – How Recent Decisions Could Impact You

Posted in Estate and Trust Planning

In our monthly department meetings, the trusts and estates group at Weintraub keeps current by reviewing recent cases and discussing how they could affect our practice. See below for some highlights from the past few months:

Pena v. Dey – When is Self-Help Enforceable?

(Filed August 30, 2019)

The gist:

James Robert Anderson established a living trust in 2004, which he amended in 2008. He was diagnosed with abdominal cancer and brain cancer in 2011. After his diagnoses, Anderson became closer with an existing friend, Grey Dey, who eventually moved in with Anderson and provided care to him until Anderson’s death in May 2014.

In February 2014, Anderson contacted a new attorney, requesting changes to his trust. Anderson sent the attorney a marked up copy of a section of the first amendment that created fifteen separate trust shares of varying percentages to be distributed to different beneficiaries. Anderson altered eleven of those gifts, adding notes in margins, and attached a separate list of beneficiaries to divide the largest share. Anderson wrote a note to his attorney on a Post-it note that read, “Hi Scott, Here they are. First one is 2004. Second is 2008. Enjoy! Best, Rob.” Continue Reading

There’s No Place Like Home – Heightened Evidentiary Standard for Moving Conservatees from Their Personal Residence

Posted in Conservatorship

Frequently when a conservatorship proceeding is commenced, the proposed conservatee is residing in his or her personal residence. Having a conservatorship established can be a distressing experience for a conservatee who has awareness of the effect of such a proceeding. One primary concern may be whether there is going to be a change to living arrangements with which the conservatee has been familiar, sometimes for decades. Naturally, it is commonplace for a conservatee to express that they “don’t want to go to a care home.” In recognition of the need to affirmatively preserve the right of conservatees to remain in their own personal residence, the California Legislature passed an amendment to existing law which applies a higher evidentiary standard before a conservator may move a conservatee from his or her personal residence.

Living in the Personal Residence. Under existing law, it is presumed that the personal residence of the conservatee at the time of the commencement of the conservatorship is the least restrictive appropriate residence for the conservatee. That presumption may be overcome by a preponderance of the evidence. As of January 1, 2020, the presumption that the personal residence of the conservatee at the time of the commencement of the conservatorship is the least restrictive appropriate residence for the conservatee may be overcome only on a showing of clear and convincing evidence, which is a higher standard. Continue Reading

With New Tax Law, Your Estate Planning May Need Some Revisions

Posted in Estate and Trust Planning, Taxation, Trust

You may have heard by now that the Gift and Estate Tax exemption amount was increased by the Tax Cuts and Jobs Act of 2017, which became effective on January 1, 2018. This article is to highlight some of the key estate planning issues under the new tax law.

In 2019, the Gift and Estate Tax exemption as adjusted for inflation is $11.4 million, and in 2020, the exemption amount will be increased to $11,580,000. Historically, this is the highest the exemption has ever been. The exemption will continue to increase incrementally due to a built-in inflation adjustment until January 1, 2026, when, absent an act of Congress, the exemption will be decreased to about $6 million. The value of a decedent’s estate in excess of the available exemption upon death will be subject to a 40% estate tax.

This dramatic increase (and future expected decrease) in exemption poses a range of estate planning issues which affect all clients, regardless of the amount of your wealth. There are also some opportunities for tax savings. Continue Reading

What Aretha Franklin’s Estate Teaches Us About the Pitfalls of Handwritten Wills

Posted in Estate and Trust Planning, Trust

Typically, only those of us who are trusts and estates attorneys geek out over the fascinating problems that handwritten wills create. But when those wills were written by a music icon worth $80 million, suddenly this topic is intriguing to a much broader audience. Aretha Franklin died on August 31, 2018. Her family was confident that she died without a will, but on May 3, 2019, the personal representative of Franklin’s estate discovered three separate documents, each of which may constitute a valid handwritten (or in legal terms, “holographic”) will. Now, the previously uncontested estate has divided Franklin’s family and is likely headed to litigation. Below are a few common pitfalls of holographic wills that are issues in Franklin’s estate.

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Focus on Fiduciaries: What Fiduciaries Need to Know About the Attorney-Client Privilege

Posted in Estate and Trust Planning, Fiduciary
Businesswoman on phone

Last month, my Weintraub colleagues and I had the pleasure of speaking at the Professional Fiduciary Association of California annual conference on the topic of the attorney-client privilege and its application to clients serving in a fiduciary capacity (trustee, executor, conservator, agent, etc.).

Most people have a cursory understanding of what the attorney-client privilege does – it keeps communications between clients and their attorneys confidential and free from discovery, which fosters honest and complete communication between client and lawyer – but many individuals don’t realize that there are important limitations and exceptions to the privilege, particularly for those serving as fiduciaries. These crucial limitations and exceptions apply regardless of whether the fiduciary is a professional fiduciary or simply an individual who is administering a trust or estate or serving as a conservator for a loved one or friend.

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A Case Lesson in “What Not To Do” When Billing as a Conservator

Posted in Case Alerts, Estate and Trust Planning, Fiduciary

Based on recent appellate cases, one of which is discussed below, the court’s scrutiny of conservators’ conduct and, specifically, private fiduciaries, is seemingly on the rise. Private fiduciaries acting as conservators should always remain focused on performing and charging only for those services that are consistent with the best interests of their conservatees. California case law continues to refine that understanding.

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And You Are? Long Lost Relatives Need to Prove Up Their Entitlement to Inherit

Posted in Case Alerts, Estate and Trust Planning

Under California law, the laws of intestacy control who inherits when a person dies without having prepared a valid will or trust. These rules can be complicated particularly as remote or even unknown blood relatives may have a claim to assets of the decedent’s estate. However, these long lost relatives often must prove up their entitlement to inherit from the decedent’s estate.

The California Probate Code has a procedure in place to determine who is entitled to inherit from the decedent as set forth under California Probate Code section 11700 et seq. Filing a petition under this section is particularly useful when there is uncertainty as to the actual heirs of the decedent’s estate.

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