By Loren Barr
I have spent nearly three decades practicing estate and trust litigation in California, and the State Bar of California’s Board of Legal Specialization has certified me in Estate Planning, Trust and Probate Law since 2004. Over that time I have represented hundreds of clients in estate, trust and elder abuse matters, drafted and administered wills and trusts, and served as a witness on standards of practice in elder abuse and trust cases. Many of the disputes in this area share one feature. Somewhere along the way, an older person’s trust in someone close to them was used against them.
My path to this work began far from a courtroom. I grew up in Lafayette, graduated from Cal Poly San Luis Obispo in 1988 with a degree in history, and served on active duty in the United States Marine Corps from 1989 to 1993. After law school at Santa Clara University, where I was Managing Editor of the Santa Clara Law Review, I practiced at the San Francisco office of Pillsbury Madison & Sutro before joining my father, Edward Barr, to form Barr & Barr Attorneys in 1998.
How California Defines Financial Elder Abuse
The practice now known as Barr & Douds Attorneys handles trust litigation, elder abuse claims, conservatorships and estate planning from our office in Danville, and financial abuse cases draw on all of those areas at once. California’s Elder Abuse and Dependent Adult Civil Protection Act protects people 65 and older, along with dependent adults between 18 and 64. Under Welfare and Institutions Code section 15610.30, financial abuse occurs when a person takes, hides, appropriates or keeps an elder’s property for a wrongful use or with intent to defraud, or assists someone else in doing so. Undue influence used to obtain property also counts.
The statute has teeth. When financial abuse is proven, section 15657.5 allows the court to award reasonable attorney’s fees and costs, and punitive damages may be available when the conduct involved recklessness, oppression, fraud or malice. Probate Code section 859 adds another remedy. A person found to have wrongfully taken or concealed property belonging to an elder, a trust or an estate in bad faith can be ordered to pay twice the value of the property.
The White-Collar Version
Much financial elder abuse involves no violence and no stranger. In a 2010 article for the Contra Costa Lawyer titled “The White-Collar Abuser,” I wrote about the family member, advisor or caregiver who uses paperwork instead of force. The tools are ordinary ones: a power of attorney, a new trust amendment signed during a hospital stay, a joint bank account added quietly, or a deed transferred to “simplify things.” Each document can look legitimate on its own, and the pattern only becomes visible when the transactions are laid side by side.
Warning Signs Families Often Miss
Relatives usually notice something before they can name it. A parent suddenly stops talking about finances, a new helper answers every phone call, or bank statements stop arriving at the house. Sometimes the first clear signal is a revised estate plan that disinherits children who were included for decades, prepared by an attorney the family has never heard of.
California law addresses one version of that problem directly. Probate Code section 21380 creates a presumption of fraud or undue influence when a donative transfer goes to the person who drafted the instrument, a care custodian of a dependent adult, or certain people connected to them. The presumption shifts the burden to the person who received the gift, who then has to prove by clear and convincing evidence that the transfer was not the product of fraud or undue influence. Records showing who arranged the appointment, who was in the room at the signing and who paid the drafting attorney often decide these cases.
An overview of the civil claims available in these situations can be found at barrattorneys.com/practice-areas/elder-abuse/, and the first step in most cases is less dramatic than a lawsuit. Families should gather account statements, copies of estate planning documents and a timeline of changes in the elder’s health and living arrangements. Adult Protective Services and local law enforcement can also investigate when an elder may still be at risk. When the elder can no longer manage finances at all, a probate conservatorship may become necessary, though courts expect families to consider less restrictive options, such as a well-supervised power of attorney, first.
Deadlines That Arrive With a Trust Notice
Trust disputes run on a tighter schedule than many families expect. When a revocable trust becomes irrevocable, usually at the death of the person who created it, the trustee must send a notice under Probate Code section 16061.7 to beneficiaries and heirs. That notice starts a 120-day window under section 16061.8 to contest the validity of the trust, or 60 days after a copy of the trust terms is provided if that date is later. Heirs who set the notice aside while grieving can lose the right to challenge an amendment they believe was procured through undue influence.
Now, not every trust dispute involves a challenge to the document itself. Beneficiaries also bring petitions under Probate Code section 17200 asking the court to compel an accounting, instruct the trustee or address a breach of fiduciary duty. A trustee who mixes trust money with personal funds, refuses to provide information or favors one beneficiary over another can be surcharged or removed under section 15642.
Attorney Fees in Trust Litigation
Questions about who pays for litigation come up early. In 2008 I published an analysis in the Contra Costa Lawyer of Whittlesey v. Aiello, a California appellate decision addressing attorney fees in trust disputes and how practitioners use it. Fee questions matter because trust litigation can consume a significant share of an estate, and the answer depends on the trust instrument, the statute involved and the conduct of the parties. A beneficiary who succeeds on a financial abuse claim may recover fees under the Elder Abuse Act, while a trustee defending the trust in good faith may be entitled to pay reasonable fees from trust assets.
Where Litigation and Planning Meet
Much of my practice involves disputes, yet the strongest evidence in a dispute usually comes from careful planning years earlier. Clear records of why a parent made certain choices, independent counsel for the person signing, and regular communication with all beneficiaries reduce the chance that a trust ends up in court. Trust litigation handled by firms such as Barr & Douds frequently includes mediation, and many of these cases settle once the financial records are on the table.
I am a member of the State Bar of California, the Contra Costa County Bar Association, the Estate Planning Council of Diablo Valley and East Bay Trusts & Estates Lawyers. Outside the office, I live in Alamo with my wife and five children, and when I am not working I am usually with them or my parents, reading, or following Giants baseball and college football.
Financial abuse cases are rarely about money alone. They usually involve a family trying to understand how a parent’s wishes were changed, and the legal process works well when it restores an accurate picture of what that parent actually wanted.
