USA – CALIFORNIA Trends and Developments Contributed by: Jennifer J. McCall, Pillsbury Winthrop Shaw Pittman LLP
California Estate Planning in Transition: New Laws, Risks and Best Practices Many recent developments in California (CA) indicate the need for estate and tax planners to update the estate plans of their clients and be aware of evolving trends. Assembly Bill 495 – Family Preparedness Plan Act of 2025 This Bill provides a legal procedure in California for temporary guardianship when a custodial parent is temporarily available because of a serious medical condition, incarceration, immigration-related deten- tion, or military deployment. Under the act, a custodial parent and one person nominated may serve as joint guardians of a minor child when the other custodial parent is temporarily unavailable. While the procedure offers important flexibility for families who may face sudden changes, planners should carefully consider who they would wish to be such temporary guardian and include this provision in advance for clients where it may become relevant. Conservatorship provided under CA: Probate Code, Section 1801 Recent developments and cases indicate the impor- tance of carefully attending to planning where a cli- ent may experience declining capacity and/or incom- petence. The California conservatorship provisions provide a protective statutory framework for the least restrictive alternative upon a showing of “clear and convincing evidence” that a California resident needs protection financially and/or personally, because they are unable to make such decisions for themselves. It may be prudent to carefully designate in advance who the client would wish to have as a conservator in the event it is ever determined that this is needed. Note that this is in addition to the power of attorney appointing an individual to handle financial matters and the advance healthcare directive appointing a person to communicate medical wishes to the doctor in the event of a terminal illness. In a related area, care must be taken to provide pro- tection to a client who is not incompetent to a level where a conservator should be appointed, but who is increasingly vulnerable to potential financial abuse from others. This sensitive timeframe has provided
increasing challenges for families, lawyers, and medi- cal caregivers. Note that an individual with declining capacity is often resistant to accepting this devel- opment. Care must be taken to treat the vulnerable individual with respect, honouring his or her dignity and financial accomplishments during life, in order to effectively discuss the topic of protection with them. One method of helping to protect the vulnerable indi- vidual is to emphasise the increasing prevalence of financial scams, which would indicate the need for a second person to authorise financial transfers from a bank. An example could be that voice recognition technology might be abused by a potential fraudster offering fraudulent instructions to a bank and for that reason a second call back to a trusted third-party is prudent for transfers over a certain amount. The vul- nerable individual should be reminded, at repeated, appropriate intervals, of the potential for abuse to alert them to financial fraud. Specific examples can be pro- vided such as the importance of using only trusted drivers, and trusted workers and assistants around the individual or the house; be aware of caregivers who cross the line of medical or household assistance into inappropriate financial intrusion. More complex is the prevention of transfers with real property. One potential solution might be to have real property owned by a limited liability company, and the board of that company would need to approve any transfers. This might be more protective than altering the deed, which could create a cloud on title at the county recording office. Note that conservatorship proceedings can be used offensively as well as defensively. In a recent California case, a disgruntled husband seeking to convert the assets of his estranged wife for his own use, brought a conservatorship proceeding to gain control of her per- son and property. Fortunately, the wife had regained sufficient mental and emotional acuity to resist this attack. Note that when a divorce is pending the spouse lacks standing to bring the conservatorship action. Con- versely, an aggressive spouse may succeed in gaining a conservatorship over a vulnerable spouse and then proceed to use his or her assets without genuinely caring about his or her best interests. Note that in the
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