By Dien Le, Esq.
With our aging society, we attorneys are increasingly encountering an ongoing dilemma faced by our clients – that is, how to protect our elderly loved ones who may be showing signs of mental deterioration. Even when family members do recognize the problem, they may be unsure of what to do. Perhaps they fear the conflict that can arise when a family member tries to help. And, being human, perhaps they also fear being removed from the estate plan of the person they want to help, their concern being taken as unappreciated interference. Even worse, trying to help a vulnerable senior may be seen by others as some form of undue influence, when in fact the exact opposite is intended. And when the “interference” involves taking the drastic but often necessary legal step of petitioning for a conservator to oversee the physical and/or financial well-being of a loved one, those concerns can be all the greater.
When it comes to addressing financial elder abuse, time is often not on our side. Those who would take advantage of a vulnerable senior usually work quickly, disappearing with assets the senior may well need for his or her own needs, as well as whatever nest egg might be left for family members to inherit. By not taking action quickly upon learning of possible financial elder abuse, one runs the risk that the damage may already be done, with estate assets already taken by an unscrupulous and manipulative family member, caretaker, friend or stranger who may end up beyond the reach of the law.
A conservatorship is an effective solution and may be the only and best option available under the circumstances. In order to prevail, the petitioner must prove by clear and convincing evidence (a high evidentiary burden) that a conservatorship is warranted. (See Prob. Code, § 1801(e)). A proposed conservatee must be substantially unable to manage his/her financial resources or resist fraud or undue influence. Substantial inability is generally manifested through a pattern of concerning acts or omissions and may not be proved solely by isolated incidents of negligence or improvidence. (See Prob. Code, § 1801(b)). Certain evidence may be needed to establish the grounds for a conservatorship, including medical documentation from a physician or mental health specialist showing a history of “major neurocognitive disorder” (the new term in conservatorship parlance for dementia), mental illness, or a combination of these, as well as testimony from percipient witnesses such as caretakers, family and friends.
As the petitioner in the conservatorship proceedings, there are certain protections and remedies to avoid losing your inheritance. Of course, there is no guarantee that a court or jury will agree with you that a conservator is necessary. You need to be sure you are justified before taking this route. That said, you will be in a better position if a court does find there are grounds for a conservatorship, because if the conservatee later tries to write you out of the will or trust, such actions will be highly scrutinized and may be disallowed by the court.
A judicial determination of incapacity in the context of a conservatorship proceeding would impact a testator’s contractual capacity in making a trust (see Prob. Code, §§ 810-812), but it does not necessarily deprive him or her of the testamentary capacity necessary to make a will or change beneficiaries (see Prob. Code, § 1871(c)). Keep in mind that there is the rebuttable presumption that people are presumed to have sufficient capacity, to make sane and competent decisions for themselves, and to have the ability to make a will or change a trust unless shown otherwise. (See Prob. Code, §§ 810, 6100(a)).
The contestant of a will has the burden of proving by preponderance of the evidence (lower standard than for a conservatorship) that the testator lacked the testamentary intent or capacity at the time the will was executed. (See Prob. Code, § 8252(a)). The testamentary capacity in making a will or amending a trust with simple changes not involving executing complex documents is a significantly lower standard requiring only that the person understand the nature of the testamentary act, the nature of the property at issue, and his or her relationship to those affected by the will. (See Prob. Code, § 6100.5.) This is compared to the much higher contractual capacity necessary for a trust and to conduct other transactions such as selling/transferring/conveying/encumbering real property or making substantial gifts, managing business or financial affairs, or resisting fraud or undue influence. Probate Code sections 810-812 do not set out a single standard for contractual capacity, but rather a sliding-scale approach to determining capacity based on a variety of acts that must be evaluated by a person’s ability to appreciate the consequences of the particular act he or she wishes to take – i.e., more complicated decisions and transactions would require greater mental function while less complicated ones would require less mental function.
It is well-established in many cases that the failure to recognize old friends or relatives, physical disability, absent-mindedness and mental confusion, old age or forgetfulness, eccentricities or mental feebleness at various times are not enough in themselves to warrant a holding that the testator lacked testamentary capacity (even with a diagnosis of dementia). Likewise, proof of the existence of hallucinations or delusions is not alone sufficient to annul a will unless such hallucinations or delusions bear directly upon the testamentary act. What is important is that the mental condition or the state of an unsound mind must be at the time that the child was disinherited and impacted the parent’s functional ability to make such a decision; it does not matter the condition of the parent during other times before or after. However, once diagnosed with dementia, it is usually a continuing mental disorder which becomes progressively worse with a steady decline over time and unlikely to get better.
Even if you are wrong or fail to meet the burden for a conservatorship and none is established by the court, there are other ways you can still protect yourself from disinheritance. For instance, you can enter into a side agreement or mutual pact with your other siblings that if you are willing to “take one for the team” and be the designated front person for the greater good, that your other siblings would agree to evenly split the assets of the estate with you. This is only practical and feasible if all the beneficiaries are supposed to receive equal distributions from the family estate. In other words, if things go wrong in the conservatorship, the petitioning sibling would at least have some peace of mind and be ensured of still getting his or her fair share from the trust even if disinherited by the parent out of anger, resentment or retaliation. However, it is important to consider the potential consequences (when big estates are involved) of this arrangement counting against the lifetime gift tax exemptions of the other siblings, who would be gifting you a portion of their own inheritances. Everyone involved in such an agreement should have legal representation to ensure it is done correctly and all options (and consequences) are considered.
Moreover, in the conservatorship context, it may be helpful to use the substituted judgment provisions of the Probate Code (sections 2580-2586) to restore/rewrite (i.e., reverse any impetuous changes made by the conservatee predeath) a trust or will according to the conservatee’s original wishes
before the conservatorship. In such cases, the probate court has the discretion to order a “substituted judgment” that authorizes a conservator on behalf of a conservatee to take necessary or desirable action to facilitate estate planning, when a reasonably prudent person in the conservatee's position would do so. The benefit of a substituted-judgment order is the collateral estoppel effect, which means the same issues cannot be relitigated after the conservatee’s death.
In an emergency situation where the elder is involved in an ongoing scam, a useful first step would be to seek an elder abuse restraining order against the abuser causing or committing the elder abuse in order to effectively remove that person from the situation. The process involved in this solution is much faster and less expensive than a conservatorship, but it only addresses a specific wrongdoer and set of facts, rather than an ongoing pattern of vulnerability. This is a useful tool if the abuser can be readily identified and found locally, but it will be futile if the restrained person is out of state or committing an international fraud scheme. While helpful in certain cases, this remedy cannot tactically solve all the issues that a conservatorship is better designed to do.
Lastly, given all these scenarios and the fact that parents can disinherit their children from the will or trust so long as they are of sound mind, acting on free will, not lacking from capacity to make such decisions, and not being unduly influenced or a victim of fraud and duress, it is best to consult an attorney to understand your choices and avoid any pitfalls. Through the personal advice and guidance of counsel, you can be more confident with your strategic choices that you are doing the right thing for your loved ones while at the same time minimizing any adverse consequences to you as the beneficiary of the estate.