Tuesday, January 11, 2005

Conservatorship of McDowell (Cal. App. - January 6, 2005)

Before reading this opinion, I honestly didn't know -- but was happy to learn -- that California has a fairly well-developed statutory scheme designed to limit testamentary bequests to caregivers. I would imagine that it is fairly common for people to leave their caregivers something in their will, and certainly recognize the potential for abuse in such settings.

Even after reading the opinion in this case, I'm uncertain whether I believe that the relevant California statute properly governs only professional caregivers, or instead also includes volunteers. Both positions have something going for them. But that just means that it's a hard case; Justice Rushing does a very good job of supporting his conclusion, even if I still am uncertain whether or not he's right.

Tangentially, I noticed that the caregiver here had to bring the elderly decedent to three different attorneys before she was able to find one willing to write the will. Thomas Bouman and James Arnold apparently refused to prepare legal documents due to concerns about the decedent's mental competence. I have a generally more favorable reaction to those counsel than I do towards the third attorney -- Meyer Sher -- who went ahead and prepared the will. Especially since (1) the decedent was diagnosed with advanced dementia four short months after the will was prepared, suggesting that the first two lawyers may well have been right about her competence, and (2) the third lawyer -- who had only been a member of the Bar for two years -- was apparently completely unaware of the California statutory limitations on testamentary gifts to caregivers when he prepared the will.

Of course, I was equally ignorant of the limitations before reading the opinion. But then again, I don't write wills for a living. (Neither, apparently, does Sher anymore; it looks like he currently works for the California Public Utilities Commission. Good move, I think.)