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Alzheimer's Disease | California Trust, Estate and Probate Litigation

Alzheimer's Probate Litigation California

Busy and experienced trust, estate and probate litigation lawyers see many estate challenges turn on the nature and effects of Alzheimer's disease on a testator and/or trustor/settlor. These contests are often fought out in the urban battlegrounds of California Superior Courts located in Sacramento, Alameda, San Francisco and Los Angeles Counties. Financial elder abuse cases with victims made vulnerable by dementia or Alzheimer's victims are frequently waged in Superior Court civil divisions where jury trials are available.

The Alzheimer's Association estimates that "610,000 Californians have Alzheimer's disease with that number expected to grow 37.7% to 840,000 by 2025." That said the diagnosis of dementia and Alzheimer's is often missed, delayed or subject to diagnostic error.

"The diagnosis of dementia is initiated mostly on a clinician's suspicion based on [a] patient ...[or] caregivers' concerns, usually in a primary care setting. The diagnosis of dementia in older persons can be challenging in the primary care environment, where provider-patient interactions tend to be brief and patients often present with multiple symptoms and health conditions. Early symptoms of dementia, such as memory impairment, may not be apparent during a routine office visit unless they are directly assessed."

Personal and anecdotal experience leads me to believe that most family members are baffled by an elder's conduct seen in the early stages of dementia or Alzheimer's - a time prior to diagnosis. A New York Times article detailing a woman's experience with Alzheimer's is enlightening for those desiring to learn about the disease's early affects.

The progression of Alzheimer's is marked by behavioral and psychological symptoms that affect the elder's mental capacity and vulnerability to undue influence and financial elder abuse. Such vulnerability is part and parcel of many will contests, trust contests and financial elder abuse actions. The story of Geri Taylor in The New York Times describes the disorientation that begins to affect the tasks of everyday existence: forgetting where personal articles have been placed; the failure to remember phone numbers, names and planned events; and the waning ability to do simple mathematical calculations.

Law firms like Hackard Law that keep a busy docket in trust, estate and probate litigation see a common set of circumstances in dementia and Alzheimer's-related cases. For the most part each case presents a vulnerable elderly victim, a trusted individual who takes advantage of the victim and an unfair or disproportionate result. Evidence gathered and presented in such cases is often not readily available. That said, Hackard Law has its own internal protocol for the development of these cases.


Timelines are critical in mental capacity, elder vulnerability and financial elder abuse cases. It helps to know that the most critical part of timelines is the identification of the time when the first bad act or injury occurred. Such times might be when the elder was isolated, threatened, made dependent, or brainwashed into thinking that everyone wanted to harm the elder except the abusive caregiver or family member.

Medical Records

Treating physicians' notes and observations are an important part of a disputed estate or trust case. That said there are many studies that reveal delayed and/or undocumented diagnosis among primary care providers. In addition, undue influencers are more likely to present their victim's mental health as normal or only slightly impaired. Given the limited time available in current physician and patient interviews it is little wonder that a dementia or Alzheimer's diagnosis may not be made even when a more detailed exam would show Mild Cognitive Impairment and the onset of early Alzheimer's disease. In any event court or jury trials with competing testifying experts such as forensic psychiatrists and neuropsychologists are likely to conflict. It is the rare case that primary care providers include physicians from such renowned Alzheimer's medical facilities as the UCSF Memory and Aging Center; the UC Davis Alzheimer's Disease Center; the Mary S. Easton Center for Alzheimer's Disease Research at UCLA; and the Alzheimer's Therapeutic Research Institute at USC's Keck School of Medicine.

Contradictory Accounts by Family, Friends and Caretakers

If anyone can act as a reliable witness to the progression of Alzheimer's, it's an elder's friends and loved ones. All the same, it's not often that someone in these social categories will maintain descriptive accounts of everything they've seen as the disease takes its toll. Since none of us are perfect, our memories can occasionally be flawed or contradict other facts. Wills, trusts and testaments taken on video are generally not a common occurrence. Professional caretakers, however, are more likely to keep notes during their work shifts, which means they can more often speak as objective witnesses.

When an Estate File is Thin on Details

Estate attorneys responsible for the formulation of estates and trusts for Alzheimer's-diagnosed clients must also be classified as important witnesses. When an estate lawyer knows of a client's diagnosis with dementia or Alzheimer's, the lawyer must work to analyze which standards of mental capacity fit with the client's condition and corresponding testamentary documents. It's the duty of legal counsel to also explain in detail how these conclusions were reached, based on the condition of the client. A good way to judge capacity is through open-ended questions - the queries and answers can be taken down in the attorney's notes and used to evaluate the client's capacity to make estate decisions. Attorneys must be especially watchful for information that points to undue influence or potential elder financial abuse and ensure that all such evidence is duly documented in order to protect the client and estate assets.

There are also times when an attorney might not be aware that their client has been diagnosed with Alzheimer's or dementia. Lack of diagnosis - or a hidden one, intentionally or not - can be especially harmful, since it leaves an elder vulnerable not only to further medical complications, but also to financial abuse and exploitation. If the attorney doesn't document the details of client meetings, including anything appearing out of the ordinary, then an estate or trust might be more easily challenged through litigation when allegations of elder financial abuse or undue influence emerge some time later.

Alzheimer's Disease and Questions of Capacity

When it comes to family members, it's often easy for them to adopt a certain frame of mind and perspective regarding a relative with Alzheimer's. Maybe they deny the disease or minimize its effects if they stand to gain most of the estate. If a child does not receive a large share of the inheritance, he or she might easily believe that not only Alzheimer's, but also another sibling with designs on estate assets managed to steal much of the estate or trust. A child who acts as a caretaker for some period of time will be inclined to think that they deserve a larger share of the estate and that the parent with Alzheimer's had the capacity to make such a decision. All of this must be sorted out by experienced probate attorneys and medical/psychiatric professionals who can analyze the situation from a more objective position.

Capacity is not automatically negated by a diagnosis of Alzheimer's - in fact, California Probate Code Section 811 actually presumes capacity even if the elder has the disease. Instead of a general diagnosis, state law needs evidence of specific impairments to cognitive functions. Loved ones might find a quick answer to an estate dispute in the very presence of Alzheimer's disease, but a judge in probate or civil court will demand more detailed presentation of how the condition created incapacity that then led to elder financial abuse or undue influence.

How Incapacity Can Lead to Undue Influence

Capacity itself is just one element of a trust or will contest case that alleges undue influence, especially where Alzheimer's or dementia are involved. Diminished mental capacity, an undeniable symptom of Alzheimer's disease, leave a senior in a state vulnerable to undue influence. Opportunistic wrongdoers will jump to grab a bigger portion of an estate or trust than what the elder might have originally planned. That said, every case history is unique and requires its own special preparation. There's no single magic formula that works for litigating all disputed estates or trusts, but the heightened attention given to undue influence and elder financial abuse in California law means that abused beneficiaries and wronged heirs have a fighting chance to protect assets and achieve recovery.

If you believe Alzheimer's or dementia left a loved one vulnerable to undue influence in an estate or trust matter, you can call us at Hackard Law: 916-313-3030. We'll be happy to listen to your case and see how we can help you. Thank you.

Alzheimer's Disease | California Trust, Estate and Probate Litigation from Hackard Law on Vimeo.

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