Establishing a Conservatorship Based Upon Undue Influence: a Practitioner's Guide

• Citation: Vol. 21 No. 2
• Publication year: 2015
• Author: By David G. Knitter, Esq., and Mary K. deLeo, Esq.

ESTABLISHING A CONSERVATORSHIP BASED UPON UNDUE INFLUENCE: A PRACTITIONER'S GUIDE

By David G. Knitter, Esq.,^* and Mary K. deLeo, Esq.^**

Conservatorships are judicial actions in which a court appoints a protector to manage the financial affairs, or oversee the personal needs, of another due to that person's physical or mental limitations. Since fundamental individual rights are involved, a conservatorship can be difficult to establish. Obtaining compelling proof of the need for a conservatorship, especially where the proposed conservatee or other family members object to the establishment of a conservatorship, is often problematic. When a conservatorship is sought on the basis that the proposed conservatee is the victim of undue influence, the proof problem is exacerbated.

Because undue influence is a form of elder financial abuse,¹ and abuse generally occurs without witnesses present, evidence of undue influence is often elusive and almost always circumstantial. One court has summed up the problem: "'Undue influence,' obviously, is not something that can be seen, heard, smelt or felt; its presence can only be established by proof of circumstances from which it may be deduced."² Rather than relying on a "smoking gun" to prove his or her case, a practitioner who seeks to establish a conservatorship based upon allegations of undue influence must rely on a number of factors, many of them subtle, to prove to the court the imposition of a conservatorship is warranted. This article will explore ways to prove the types of factors that courts find persuasive in conservatorship proceedings based on allegations of undue influence. The authors will suggest methods a practitioner can use to present those factors in the pleadings and declarations to the court for maximum effect.

I. INITIATING A CONSERVATORSHIP

A conservatorship of the person may be established for an individual "who is unable to provide for his or her personal needs for physical health, food, clothing, or shelter," whereas a conservatorship of the estate may be established for an individual "who is substantially unable to manage his or her own financial resources or resist fraud or undue influence."³ A petition for conservatorship may seek conservatorship of the person, of the estate, or of both. If the inability of the proposed conservatee to resist undue influence is the basis for the petition, the petition will seek at least a conservatorship of the estate.⁴ The standard of proof needed to establish a conservatorship is clear and convincing evidence.⁵

A conservatorship is initiated by filing a Petition for Appointment of Probate Conservator ("Petition") and supplemental pleadings pursuant to California Probate Code section 1820 et seq.⁶ Use of Judicial Council forms for the petition and supplemental pleadings is mandatory.⁷

Once the Petition is filed, a hearing date will be set⁸ and an investigation on the allegations set forth in the petition typically will be initiated by the court investigator.⁹ The court investigator will advise the proposed conservatee of the contents of the conservatorship citation and petition; the nature, purpose, and effect of the proceeding; and the proposed conservatee's right to oppose the proceeding, attend the proceeding, and have legal representation appointed for him or her.¹⁰ The court investigator will also determine whether it appears the proposed conservatee suffers from a mental function deficit¹¹ that impairs the proposed conservatee's ability to understand and appreciate the consequences of his or her actions in regard to providing for his or her physical needs for physical health, food, clothing, or shelter and/or for managing his or her own financial resources or resisting fraud or undue influence.¹² The court investigator will make a written report to the court on the appropriateness of the establishment of the requested conservatorship.¹³ If the Petition is unopposed, the court will grant the order establishing the conservatorship if the pleadings and declarations provide proof meeting the clear and convincing evidence standard. If the Petition is opposed, the court typically will set the matter for trial. The trial may be a bench trial or, should a proposed conservatee so demand, a jury trial.¹⁴

If the proposed conservatee's interests need immediate protection and harm could result due to the delay created by the notice required for the Petition, the proposed conservator may seek a temporary conservatorship of the person and/or estate. A temporary conservatorship limits a temporary conservator to only those powers and duties necessary "to provide for the temporary care, maintenance, and support" of the proposed conservatee, and "to conserve and protect the property" of the proposed conservatee from loss or injury.¹⁵ Although temporary conservatorships are often difficult to obtain, they can offer significant protections and benefits to the proposed conservatee. This is especially true in undue influence cases where the influencer is actively misappropriating the proposed conservatee's assets.

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II. DEFINITIONS OF UNDUE INFLUENCE

"Undue influence" in a conservatorship context has the same meaning and definitions as applied in other probate contexts, such as in a will or trust contest.¹⁶ In California, there are currently three definitions of undue influence, as follows:

• Probate Code, section 86, and Welfare and Institutions Code, section 15610.70 (effective January 1, 2014);
• Civil Code, section 1575 (contractual capacity); and
• Common law definition of undue influence.

Under Probate Code, section 86, "undue influence" in the probate context has the same meaning as set forth in Welfare and Institutions Code, section 15610.70. Welfare and Institutions Code, section 15610.70, defines "undue influence" as "excessive persuasion that causes another person to act or refrain from acting by overcoming that person's free will and results in inequity."¹⁷ In many ways, Welfare and Institutions Code, section 15610.70, is similar to the definition of undue influence set forth in Civil Code, section 1575, which defines undue influence as the use of confidence or authority (real or apparent) over another for the purpose of obtaining an unfair advantage, taking an unfair advantage of another's weakness of mind, or taking a grossly oppressive and unfair advantage of another's necessities or distress. Also similar is the common law undue influence definition, which is the exercise of acts or conduct by one who subverts another's independent free will and diverts it from its natural course.¹⁸ In all three definitions, the focus is on the use of excessive persuasion that bends another's free will so that the person acts in a manner differently from how he or she would have acted in the absence of the undue influence. Undue influence is a special type of influence, to be distinguished from ordinary persuasion. It is the act of subverting another's will, not merely applying every day persuasion.

Probate Code, section 86, by its express language, does not supersede the common law definition of undue influence¹⁹ nor does it affect the definition set forth in Civil Code, section 1575. While a practitioner should always consider pleading undue influence under all pertinent definitions,²⁰ the definition contained in Welfare and Institutions Code, section 15610.70, may be particularly helpful in that it sets forth four categories of factors that a court must consider when determining whether undue influence is present.²¹ These factors include:

• The vulnerability of the victim: Evidence may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim's vulnerability.
• The influencer's apparent authority: Evidence may include, but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or holder of some other qualification.
• Actions or tactics used by the influencer: Evidence may include, but is not limited to, controlling necessaries of life, medication, the victim's interactions with others, access to information or to sleep; use of affection, intimidation, or coercion; initiation of changes in personal or property rights; use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes;
• The equity of the result: Evidence may include, but is not limited to, the economic consequences to the victim, any divergence from the victim's prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship.²²

III. EVIDENTIARY ISSUES

It is important to provide supporting declarations with the Petition setting forth admissible evidence to establish a conservatorship. This is particularly important if a temporary conservatorship is sought pending full hearing on the Petition. A common mistake made by inexperienced practitioners, which often leads to denial of a Petition, is the failure to set forth admissible evidence in the initial pleadings and supporting declarations. These practitioners frequently submit declarations with statements that lack foundation or contain inadmissible hearsay. Although an in-depth analysis of the evidentiary issues is beyond the scope of this article, an overview of the basic evidentiary principles and foundational issues is provided.

A. Evidence Defined

Evidence is testimony, writings, objects, or other things offered to prove the existence or nonexistence of a fact.²³ Only relevant evidence is admissible and all relevant evidence is admissible, unless a statute provides that it is not.²⁴ Relevant evidence is evidence that...