Thursday, August 28, 2008
Page 8
THE LEGAL COMMUNITY:
(Courts) Recent Probate Cases
By AVIVA BOBB
What do the following cases have in common?
•William Randolph Hearst’s grandchildren believe they are entitled to a greater distribution from his corporation.
•The largest employer in Guam is comatose and his wife and mistress are litigating over control of his worldwide assets.
•The mother of a disabled woman wants control over her daughter’s social and sexual contacts.
•The court conducts a public auction to sell real estate.
•A young boy is abandoned to be taken care of by his grandfather (whose children are drug-addicted).
•The court is asked to determine the heirs to a blond bombshell’s estate.
•Approval of a settlement for a minor is requested and no litigation has been filed.
•A grandmother asks to evict her abusive grandson from her home.
Doctors want authority to perform an abortion on a comatose pregnant woman who may not survive if the pregnancy continues.
The county Health Department wants to put a visitor from Vietnam in protective custody because he has tuberculosis.
You may not recognize these case types. They are all probate cases heard in the last few years. The first case is a trust proceeding. The next three are conservatorship matters. The next case is a guardianship; the following case is a decedent estate matter, and the remaining matters are, in order, minors’ compromise, elder abuse restraining order, petition to authorize specific medical treatment and a tuberculosis-detention proceeding. Probate courts in Los Angeles County hear a large volume of cases, with the assistance of a highly skilled staff. More than 11,000 new probate matters are filed each year.
About 60 percent of these filings are heard in the Central District by three full-time judicial officers. The rest are filed in the districts where probate is heard one or two mornings a week.
In the Central District, an average morning calendar has 70 matters. Court trials are heard during the remainder of the court week. To assist in handling this volume of often technical matters, the court has a staff of 14 probate attorneys, one research attorney, eight probate examiners and 19 probate investigators in addition to its clerical staff.
It is noteworthy that probate cases produce a large number of appeals. Also, there is no right to trial by jury in these cases with one exception, the issue of the need to establish a conservatorship.
TRUSTS
The probate court hears issues relating to trusts administered in Los Angeles County. The number of filings is increasing rapidly, as people are encouraged to put their assets in trusts (which can be a mistake if offspring are put in charge of the trust and one of them is greedy). There are two types of trust cases: those cases in which the court is asked to resolve specific disputes about management of a trust and those cases concerning trusts under continuing court supervision in which the court must approve annual or biennial accountings and fees and also referee internal disputes. In the first category is, for example, the William Randolph Hearst Trust, which the court has been hearing on and off for more than 50 years, most recently regarding the beneficiaries’ assertion that the trustees fail to make sufficient distributions.
In another case, Burt Lancaster’s children sued the trustee of the Lancaster Trusts because of the manner in which it dealt with film rights held by MGM.
In a third case, the court was asked to approve management decisions regarding Seaport Village, prime harbor property in San Diego.
Another case involved the allocation of $45 million of trustee and attorneys’ fees from a judgment related to an amusement park company.
A final example concerns control of the large trusts of a major Los Angeles developer’s grandchildren, who no longer want their cousins’ to manage those trusts. As to cases under the court’s continuing jurisdiction, the majority are special needs trusts, established when a disabled person on public benefits receives money from a settlement or inheritance and the trust funds can only be used for special needs.
CONSERVATORSHIPS
The probate court appoints and supervises conservators of adults who lack mental capacity to make medical, shelter and/or financial decisions or cannot resist the undue influence of others regarding financial affairs. A conservatorship can be of the person and/or of their estate. Usually, these conservatees are suffering from some form of dementia or are developmentally disabled. The court also appoints conservators for missing persons and for people who voluntarily request the appointment. The court establishes more than 1,400 new conservatorships a year. In Los Angeles, an attorney is appointed for each conservatee from the court’s 300 member “Probate Volunteer Panel.” These attorneys represent conservatees during the appointment process and are rehired if problems arise later in the conservatorship. The attorneys are paid by the conservatee’s estate or, if there are no funds, by the county. The court provides training, both mandatory and optional, for PVP attorneys, who give high quality service to their clients. Conservators are usually family members. But when there are no family members or the family members are dysfunctional and cannot protect the conservatee, then either a private professional conservator or the Public Guardian is appointed. All conservators of estates, except the Public Guardian, are bonded for the disposable value of the estate. After the conservatorship appointment, the court is responsible for the periodic review of its 7,500 ongoing conservatorships and for intervention if the court is alerted to problems. The review is done by the court’s probate investigators periodically visiting with the conservatee and talking to the conservator, family and neighbors and filing a report with the court. The court also receives from the conservator an annual or biennial accounting of the assets of the conservatee along with a narrative statement by the conservator reporting on activities benefiting the conservatee. The court must approve any conservator or attorneys fees paid from the estate of the conservatee. Conservatorship cases have received a lot of attention from the court this past year. We have retooled our rules and procedures to meet the requirements of new legislation.
The court, with Bet Tzedek legal services, established a clinic in Central for self-represented conservators. This coming year, clinics will be added in Van Nuys, Norwalk and Torrance.
The court established workshops, taught by court staff, to assist conservators after they are appointed. The court’s supervising probate attorney, Sandra Riley, has written a conservator’s notebook, which is being used as a model throughout the state to assist conservators with their responsibilities. Also, this past year the court developed a volunteer visitors program for conservatees in nursing facilities, called Advocates for Conserved Elders (ACE), which is now being funded by a $235,000 grant from the California Community Foundation and implemented jointly with the Wise & Healthy Aging organization in Santa Monica. Finally, the court has established an Elder Abuse Prevention Task Force to coordinate elder abuse response services and exchange program information among 20 governmental and non-profit organizations.
GUARDIANSHIPS
Perhaps as a vestige from the time when the probate court disposed of the custody of children of deceased persons when it disposed of their property, the probate court hears guardianship of minors, except when the Dependency Court has assumed jurisdiction over the minors. While in the past most of the parents of these minors were deceased, today the parents are commonly incarcerated, drug addicted, or out of the country. Before a decision is made on these cases, a probate investigator or a county Department of Children and Family Services worker conducts a home visit and reports findings to the court. The court also appoints guardians of a minor’s estate, usually needed because the minor is inheriting money, receiving the proceeds of a deceased parents life insurance, or receiving some other type of settlement. These funds are typically put in a blocked account until the minor reaches majority. Most guardians are self-represented and use guardianship clinics in the courthouse. The probate court handles approximately the same volume of guardianship cases as conservatorship cases.
DECEDENTS’ ESTATES
The probate court also supervises the administration and distribution of estates of people who die with and without wills. These cases represent the greatest number of actual filings. The court’s involvement is to insure that notice is given to possible heirs and creditors and to referee disagreements about administrator/executor appointments and their actions. The trials in this area usually involve attempts to invalidate wills based on fraud, lack of mental competence or undue influence in the making of the will. The stories of how people prey on the elderly to take or inherit their assets defy any fiction writer’s imagination. If you have wondered what the county’s Public Administrator does, that is the agency that acts as executor or administrator of a decedents’ estate when there is no one else to act.
OTHER CASES
The probate court also hears a number of other types of cases including:
•Petitions to authorize specific medical treatment — The court is asked to authorize sometimes major medical treatment for people who lack capacity to give medical consent. The court always appoints a PVP lawyer for the incapacitated person.
•Detention of persons with tuberculosis — At any given time, the county has a few people under detention who have been diagnosed with TB and have not complied with medical orders for administration of drugs. The detention lasts until they are disease free. The court also appoints attorneys for these people and the hearings are conducted with the patient on the phone from the detention facility.
•Elder abuse restraining orders.
•Minors’ compromises.
•Petitions to establish the fact of birth, marriage or death.
When we think about probate we usually think about the dry technicalities of decedents’ estates and trusts. In actuality, most judicial time is spent on cases of adults who need someone to manage their living arrangements, medical treatment and finances, children whose parents cannot care for them, family and business trusts in which there is need for supervision of management, and decedents’ estate matters in which heirs or friends scheme endlessly. Most of these cases are tales about family dynamics and the avarice of family members and “friends.”
Copyright 2008, Metropolitan News Company