PROBATE CORNER
PROBATE CORNER
The Elder Abuse Epidemic – No Cure In Sight( Continued)
DAVID M. GARTEN
Herren testified that she has practiced trusts and estates law for about 12 years. She had a video call with Gabriella and understood George wanted counsel, but it was unclear what exactly he wanted or if he was competent. Gabriella told Herren there had been a conservatorship but it ended at some point. Herren did not ask and did not know if Gabriella was acting with powers of attorney, though it may have been mentioned that Susannah held the power of attorney. The only information Herren requested from Gabriella was the“‘ trustee notification,’” i. e., a standard notice a trustee sends out when a trust becomes irrevocable. Gabriella provided documents to Herren, including a copy of the trust and letters indicating that George had been declared incapacitated and that Susannah was a cotrustee. Herren did not ask for any other information as she wanted to reach her own conclusions after meeting George.
Before the meeting, Herren prepared an engagement letter. When she met George, he was well groomed and wearing a house robe over clothes. Moore was upset Herren was there, but George told Moore he wanted Herren there and to speak to her privately. Herren told Moore that George invited her and asked Moore to leave because they were going to have“ an attorney-client privileged conversation.” Herren denied telling Moore she would be charged with elder abuse. The meeting with George lasted about 55 minutes. George appeared to be in good health and led the conversation and seemed to have his own agenda. When asked whether George appeared oriented to“ time, place, situation,” Herren testified she had no“ point of reference” for that, except that toward the end of the meeting, he agreed with her statement that it was close to lunch. Herren believed George had the capacity to retain her and understood the consequences of the legal tasks they
discussed. George asked Herren for her fee agreement, which stated Herren ' s role was to represent George regarding the“‘ administration of [ his ] trust.’” After pulling out the agreement, Herren perceived George ' s vision was impaired so she read him the first two pages and summarized the remaining pages, including the billing terms. George signed it, but Herren had to point to the place for his signature. George told her to get his contact information from Moore. Invoking the attorney-client privilege at the hearing, Herren declined to discuss the agreed goal of the representation, and indicated the extent of what she could disclose was stated in her letters to the Stimmel firm. But in seeming contradiction to her earlier declaration, Herren asserted George did not authorize her to file anything having to do with his competency; rather, what George wanted was another meeting with Herren, and“ the extent of [ her ] authority was [ to ] ask for the next meeting.”
Trial Court ' s Ruling: The Elder Abuse Act required the trial court to consider the following four factors in determining whether undue influence produced an inappropriate result:( 1) the victim ' s vulnerability;( 2) the influencer ' s apparent authority;( 3) the influencer ' s actions or tactics; and( 4) the equity of the result. See Cal Wel & Inst Code § 15610.70 subd.( a)( 1)-( 4). In finding that Herren engaged in elder financial abuse, the court concluded the evidence established that Herren obtained a property right from George by undue influence and that she knew or should have known the taking would be harmful to George. The order prohibited Herren from abusing and contacting George, and ordered her to stay 100 yards away from him and his home. The court denied the requested restraining order against Gabriella, but admonished Gabriella of the risks of bringing people to meet with George contrary to his doctors ' instructions.
The court also denied Gabriella ' s crosspetition for an order allowing contact.
After an extensive analysis of the aforementioned four factors, the appellate court affirmed the lower court’ s order. The court held that“[ t ] his is not a situation in which a finding of elder financial abuse is predicated on the mere circumstance that an attorney met with a putative client who has diminished capacity. Rather, as discussed, the record contains ample evidence Herren committed financial abuse by exerting undue influence in meeting with George alone to secure his consent to legal representation and a $ 100,000 retainer fee, even though she knew he had been declared incompetent by two medical professionals.”
PRACTITIONER’ S CORNER: This case raises serious concerns for guardianship attorneys who attempt to substitute themselves for the court appointed counsel given the fact that the alleged incapacitated person whose incapacity has not been determined by clear and convincing evidence has the right to substitute her or his own attorney for the attorney appointed by the court. See § 744.331( 2)( b) and Foster v. Radulovich, 331 So. 3d 281( Fla. 2nd DCA 2021). In Herren v. George S., supra, Herren argued that Susannah had no authority or standing to seek a restraining order under the Elder Abuse Act without first rebutting the presumption that George had capacity to make decisions such as retaining Herren. Relatedly, she argues the trial court was powerless to consider the restraining order request without first adjudicating George ' s competence. The appellate court disagreed. The court reasoned that an elder ' s capacity is not a general defense to abuse under the Elder Abuse Act. Longstanding case law recognizes, for example, that soundness of mind and body does not imply immunity from undue influence.
PBCBA BAR BULLETIN 18