Pandemics and Estate Planning: A Worthy Watch. Please click on the link to read the article “When a Pandemic Catches You and Your Estate Plan Off Guard” by Paul Hynes of HearthStone Private Wealth Management.
Plans for the Next Generation of Families
Hughes & Pizzuto attorney K.C. Thompson, in his 45th year of practicing law, has taken on another endeavor, Chairman of the Board of Trustees of San Diego’s Ronald McDonald House. With the encouragement and support of Hughes & Pizzuto, K.C. is serving a two-year term as Chairman, working with the staff and Trustees of RMHC-San Diego to insure the sustainability and growth of this valuable facility, providing a “home away from home” for both the families in the 56 guest suites and the more than 12,000 annual day-use guests.
Below is a recent article highlighting K.C. and his wife Linda’s involvement at Ronald McDonald House.
Hughes & Pizzuto is pleased to announce that Ralph E. Hughes has been elected as a fellow to the American College of Trust and Estate Counsel (ACTEC). ACTEC is a national organization of over 2,500 members throughout the U.S. and internationally. Members are elected based on their outstanding reputation, exceptional skill, and substantial contributions to the field of trust and probate law. In 2019, only 5 attorneys from California were elected as ACTEC fellows.
Hughes & Pizzuto congratulates Ralph on his election to ACTEC. To learn more about Ralph, please click here.
Is The Attorney To Be An Advocate For The Client’s Interests?
When an incapacitated adult, or an allegedly incapacitated adult, must appear in probate court, probate courts often appoint an attorney to represent the incapacitated or allegedly incapacitated adult. Although the appointment of an attorney for an incapacitated adult or an allegedly incapacitated adult has been required by law in certain cases for years, the precise role that the appointed attorney is to play in the case is not well-defined.
Is the attorney to be an advocate for the client’s interests as determined by the client or is the attorney to tell the judge what the attorney thinks is in the client’s interests regardless of the client? Historically, many probate judges have expected and even required an attorney appointed to represent an incapacitated or allegedly incapacitated adult to function as a reporter to the court. That is, the judges expect the appointed attorney to file a report indicating the appointed attorney’s impressions, opinions, and conclusions regarding the propriety of the proceeding even if the attorney’s opinions and conclusions differ from those of his or her client. For example, an attorney appointed to represent an allegedly incapacitated adult might report to the court that a conservatorship for his or her client is appropriate when the client actually wants to resist the imposition of a conservatorship.
The Courts Have It Wrong
In this article, Anne and I argue that the judges who encourage or require appointed attorneys to provide their own conclusions to the court have it wrong, and that practice in probate courts around the state should change. According to the research done by Anne and Ralph, California law as it exists today already requires an appointed attorney to be a zealous and confidential advocate for the client’s interests as determined by the client and prohibits an appointed attorney from acting as a reporter to the court. Their conclusion is that the practice of encouraging and requiring reports from appointed attorneys may be traditional, but it is wrong. Instead, California probate judges should expect an attorney appointed to represent an incapacitated adult or an allegedly adult to advocate the client’s own interests, not the client’s interests as determined by the attorney.
Not All Judges Agree
Several probate judges around the state have responded to the article. Not all judges agree, but at least one probate judge has changed the local rules governing appointed attorneys practicing in her courtroom as a result of the article.
It is likely that legislation will be proposed to clarify that California law requires the appointed attorney to advocate the interests of his or her client, as determined by the client.
Below is a memo describing some information that we discovered recently that tends to support our conclusions in “A Lawyer is a Lawyer is a Lawyer.”
As a result of the publication of this article, Anne and Ralph have been invited to present their thoughts on the issue to three gatherings of California attorneys in October.
Both Anne and Ralph will speak at the Aviva K. Bobb Advance Court Appointed Counsel Training Program on October 5, 2019, in Los Angeles.
Anne will give a presentation to the California Young Lawyers Association in Monterey on October 11.
Both Anne and Ralph will present their thoughts to the estate planning attorneys assembled at the annual convention of the California Lawyers Association in Monterey on October 12.