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Contested Conservatorships

What’s your “new Mum” been up to?

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The new Mom scenario
HOW THE STORY STARTS:
*DISCLAIMER: This is a fictional narrative based on common fact patterns we have encountered. Names, characters, businesses, places, events and incidents are either the products of the author’s imagination or used in a fictitious manner. Any resemblance to actual persons, living or dead, or actual events is purely coincidental. The individuals who appear on the accompanying photos are dramatizations of fictional clients, witnesses, attorneys, or other parties. None of the individuals are actual clients, witnesses, attorneys, or parties to actual legal proceedings.
Hank was born and raised in Walnut Creek in 1930. In 1954, after returning from service in the Korean War, Hank married Mae, his high school sweetheart, and took a job as a maintenance supervisor at the Chevron refinery in Richmond. Hank and Mae had four children, born in the mid 1950’s and early 1960’s, and raised them all in the same house in Pleasant Hill.
In the 1970’s Hank and Mae purchased and refurbished a run-down single family home in Concord, and eventually purchased two more. They held all three as rental properties and their children would remember their parents spending countless weekends performing maintenance and repairs.
Hank worked for Chevron for 40 years, retiring in 2005. By the time he retired, Hank had a substantial 401K at Chevron, and he and Mae owned their own home and the three rental properties debt-free. Their net worth had grown to nearly $5 million.
Hank and Mae’s retirement was cut short by Mae’s cancer diagnosis in 2007, and she died in 2008. Hank was despondent, and the children watched his health gradually decline. They encouraged him to get out more, and he gradually began walking to the Pleasant Hill Library a few times each week, meeting friends at a nearby coffee shop, and attending Sunday services and other events at Hank and Mae’s church.
Hank and his oldest daughter Kimberly met with Hank and Mae’s long-time estate planning attorney to get his affairs in order. The attorney explained that if Hank became incapacitated, Kimberly would serve as the successor trustee of his trust and his agent for health care and financial decisions. At Hank’s death, Hank and Mae’s estate would go to their four children in equal shares.
Hank met Philomena at a church event in 2010. She was much younger — the same age as Hank’s children — and had two previous marriages, but she seemed to love Hank, and Hank enjoyed her company. Philomena moved in with Hank, and they married in 2012.
Hank suffered his first transient ischemic attack (TIA), or ministroke, in 2013, and they increased in frequency and severity thereafter. Hank could not drive, and Philomena stopped taking him to church and other social events. When the children would call, Philomena often said that Hank could not come to the phone because he was sleeping.
A mini-stroke in 2015 caused Hank to take a bad fall that required hospitalization. Kimberly and the other children arrived at the hospital, and Kimberly presented the Advance Health Care Directive in which Hank had nominated her to make health care decisions for him. A nurse informed the children that the hospital had a more recent directive on file.
In an awkward hospital room confrontation, Kimberly asked Philomena about the state of Hank’s estate planning. Philomena said “your father and I want to keep our affairs private,” and would say no more. That night, Kimberly and the other children sent Philomena an email demanding to see their father’s trust and other estate planning documents.
THE SITUATION

Philomena did not reply. One week later, Kimberly received a letter from an attorney whose name she did not recognize.

“Your father recently amended his estate planning documents and named my client, Philomena, as his successor trustee and agent for health care and financial decisions. As these are private documents, my client has no duty to provide you copies. Please address all further communications regarding your father’s financial affairs to my office.”

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Loren Barr specializes in estate and trust litigation, estate planning, and trust and estate administration.
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ESTATE PLANNING & TRUST ADMINISTRATION
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Heidi’s focus is Estates & Trusts, serving clients from Contra Costa, Alameda, Santa Clara, San...
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TRUST & ESTATE LITIGATION
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Donald’s focus is Trust & Estate Litigation, serving clients from Contra Costa, Alameda, Santa Clara,...
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SECURITIES LITIGATION & TRUST AND ESTATE LITIGATION
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Northern California Rising Star
David practices in the areas of Securities Litigation and Trust and Estate Litigation.
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TRUST & ESTATE LITIGATION
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Northern California Rising Star
Graham’s focus is Trust & Estate Litigation, serving clients from Contra Costa, Alameda, Santa Clara,...
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