USA – CALIFORNIA Trends and Developments Contributed by: Jennifer Jordan McCall, Paul Fraidenburgh, Alexandria Marx and Maria Williams, Pillsbury Winthrop Shaw Pittman LLP
In Anthone v Carlo , 248 A.D.3d 1779, 1780 (N.Y. App. Div 2026), the New York Appellate Division held that, while a self-settled trust was void as against credi - tors under EPTL Section 7-3.1 (a), a genuine issue of material fact existed regarding the applicability of the homestead exemption. Powers of attorney , guardianship , and elder financial abuse In Fern v Baker , 106 Mass. App. Ct. 624 (2026), the Massachusetts Appeals Court upheld gifts to them - selves by sons acting under a power of attorney spurred by anticipated reductions in federal gift and estate tax exemptions as a proper exercise of their gifting authority. In Guardianship of R ., 355 A.3d 747 (2026), the Maine Supreme Judicial Court held, as a matter of first impression, that individuals subject to guardian - ship or conservatorship proceedings are entitled to the effective assistance of counsel at all stages of those proceedings, and adopted the Strickland test as the metric for evaluating whether counsel provided effective representation. ( Guardianship of R ., 355 A.3d 747 (2026).) In Haun v Pagano , 118 Cal.App.5th 667 (2026), the California Court of Appeal held that Cali - fornia’s financial elder abuse statute’s unilateral fee- shifting provision did not bar a trustee from recovering attorney fees incurred in defending claims that were inextricably intertwined with his successful prosecu - tion of his own financial elder abuse claim against the decedent’s former caretakers. ( Haun v Pagano , 118 Cal.App.5th 667 (2026).) In Rittenmeyer v Wells Fargo , N.A., 822 F.Supp.3d 1113 (2026), the Eastern District of California held that a bank does not commit financial abuse of an elder person under California’s Elder Abuse Act when it simply processes a transac - tion involving a third party. i. Conservatorship proceedings In Herren v George S ., 109 Cal. App. 5th 410, 416, 330 Cal. Rptr. 3d 458, 460 (2025), rehearing denied (21 March, 2025), review denied (11 June 2025), the court found that an elder abuse restraining order (EARO) may issue without adjudication of the elder’s capacity, and an attorney’s fee agreement constitutes a prop -
erty right the deprivation of which constitutes financial elder abuse. An attorney met with a prospective client, an 86-year- old man who had been declared incapacitated by his doctors. During the meeting, after the attorney con - cluded that the elder had capacity to retain her, the elder signed a fee agreement with the attorney that called for a USD100,000 retainer. The attorney sent a letter to the co-trustees of the elder’s trust requesting payment of the USD100,000 retainer. The co-trustees, one of whom was the elder’s daughter, declined to make the payment, and the daughter, acting as the elder’s attorney-in-fact, filed a petition for an elder abuse restraining order (EARO) against the attorney. The attorney opposed on several grounds, includ - ing that no one had rebutted the presumption of the elder’s competence and that the court could not issue an EARO without first adjudicating the elder’s capac - ity. The trial court issued the EARO, and the attorney appealed. The appellate court affirmed. It rejected the attorney’s contention that an elder’s capacity must be deter - mined before an EARO may issue as no such deter - mination is required under the Elder Abuse Act. Addi - tionally, it concluded the fee agreement represented a property right, and there was substantial evidence that the attorney committed financial elder abuse by exerting undue influence to obtain the property right from the elder. As illustrated by the above case, the past year has shown increased attempts by self interested parties to take advantage of financially vulnerable clients by seeking to be appointed as the conservator under the state law proceeding. Once appointed, the conserva - tor can control or sell the assets of the client and even receive a brokerage commission. A client can guard against this vulnerability by naming the person who the client would want as his or her conservator in a specific document or as an addendum to a power of attorney. ii. Elder abuse restraining order In Newman v Casey , 99 Cal. App. 5th 359, 368, 317 Cal. Rptr. 3d 706, 709 (2024), the court found that the
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