MH: Hello, I'm Mike Hackard; I'm the chair of Hackard Law, a law firm focusing on estate, trust and elder financial abuse litigation in California's major urban areas. This is Hackard Law's podcast, It Starts Here. This is a July 2017 podcast featuring Dave Jones, one of the senior litigators at Hackard Law. We are going to discuss how we approach capacity issues in the California superior courts. Welcome, Dave.
DJ: Hi, glad to be here.
MH: Glad that you are here. So let's just start with a little background, like where were you born?
DJ: I was born here in Sacramento, actually.
MH: Okay, and where did you go to school?
DJ: Well, I went locally, to the El Camino High School, and then went off to UCLA.
MH: All right, so local boy through and through. After college, what kind of work did you engage in?
DJ: Well, I did a bunch of different things; eventually, I ended up in IT work doing consulting for companies across the country, and traveled around and did that, and eventually decided to go to law school.
MH: Okay, and what made you decide to go to law school?
DJ: Well it was seeing you; actually I was working for you back in the day in the IT field, and seeing what you were doing with the pharmaceutical litigation, I thought "Sounds pretty fun," and decided to apply to law school, got in, and got a pretty good deal out of it, so I went.
MH: All right. I remember you got a full ride, didn't you, into law school?
DJ: Yeah, all my tuition was paid for. All I had to do was maintain a 3.0. It seemed really easy, and so I took it.
MH: Not bad. So I'll ask, is it still fun?
DJ: Oh, yeah, it's still fun. Yeah. Getting paid to argue - oh yeah.
MH: So what was your first job after law school in the law?
DJ: I got into the public defender's office in Tulare County.
MH: Okay, did that give you an opportunity to try cases?
DJ: Oh, yeah.
MH: And jury cases?
DJ: They were all jury trials, and I was doing them within a couple months of being hired.
MH: Did you like that?
DJ: Yeah, it was a lot of fun, you know, getting the case and going to trial within a month, a month and a half. It's fast.
MH: You wish you could do that now?
DJ: Potentially, I mean, I like fighting for the people, the underdogs, and for the most part when you're being accused of a crime by the cops, and they've got all the money behind them, you're definitely the underdog. So I like that a lot. It just doesn't pay that well, when you've got a bunch of kids and a family to support, it's tough.
MH: Yeah, okay. So today we're going to talk about capacity issues as we mentioned, and let's just start with June of this year, you helped teach a course at Stanford. Can you tell us a little bit about that?
DJ: Sure, I got asked to talk about capacity, and how psychiatrists and other medical professionals fit into our work in the court room, and specifically how somebody becomes a medical expert to testify in front of the court.
MH: And what group did you speak to?
DJ: This group, it was as seminar put on by the Veterans Affairs of Palo Alto and Stanford medical center. So it was a group of psychiatrists, psychologists, neurologists from Stanford and the Veterans administration - right in that area.
MH: Okay, and did you make a presentation?
DJ: It was a full-day deal and I had a 1-hour presentation in the morning, and then in the afternoon we broke off and created a mock trial for the doctors so that they could see what they would actually do as experts in court. And so I took one expert and examined him in the direct exam, and then the other attorney cross examined him, and then I got to cross examine the other expert as well.
MH: Yeah, you're doing what you love, I know that. So what is the definition of capacity?
DJ: That's a tough question, because capacity changes depending on what we're talking about. There are different levels of capacity, there is the low end, which, strangely enough, is marriage. So, you don't need a whole lot to be able to say, "I do", which I guess keeps Vegas in business. And then you've got the high end of the spectrum, which is the capacity of the contract, which takes a lot more capacity.
MH: How about the capacity to make a will?
DJ: That's in the middle, probably toward the lower end of things, but it's a little bit higher than the marriage, but it's lower than to make a contract.
MH: And is that equal to that which is required to make a trust, or is it different?
DJ: No, - it's different. To make a trust, basically you're making a contract. The contract is basically with you in most cases when it's a revocable trust. So you need to have the capacity contract to make that trust, but the courts have said that if all you're doing later on, is changing who gets what, you're just amending your trust to say "Instead of my son getting this, I'm leaving this to my daughter". Then you need the same capacity you would have to execute the will.
MH: I know you have been looking at one thing recently, and that's the capacity to make a durable power of attorney. So what would you add to that?
DJ: Well, I think to make a power of attorney is actually a power of a contract, and that's everything. I mean you're basically giving somebody absolute control over all your assets which is a... that's very serious, and you need to have a very high level of capacity to understand that.
MH: So, if we're going to look at when someone is alive, how do you determine if they have capacity?
DJ: Well, - and this is where the psychiatrists and neurologists come into play a lot - if somebody is alive and has a question as to whether or not they have the capacity, the easiest thing is we send them out to a psychiatrist and have them evaluated. They are given certain tasks and tests, talk to them, review their medical records, and get a whole picture of this person's understanding as to what it is they want to do, whether that's to make a trust or leave something to somebody in a will.
MH: And how can a family member help and assist in that process?
DJ: Well, if your family member is alive and you're wondering if that person has the capacity to create a will or a trust, I would say the best bet is to talk to a psychiatrist, or a psychologist, or a neurologist, or somebody who cares for that person, knows their history, and can give them the required tests to find out whether or not they have the capacity before you go to an attorney to have the document drafted.
MH: I can't help but do this, since I know about this. Often times, I've never seen, and we've said we've never seen an attorney who did a will or a trust that said that his client didn't have the capacity. Now, why would that be?
DJ: Well, obviously if you go to an attorney and that attorney drafts a will or a trust and has the person sign it, and then they later say, "Well the person didn't have capacity", they are basically saying they committed malpractice. So no attorney is going to do that, because at that point their insurance isn't going to pay for it, and they are going to be on the hook. So, you know, obviously if an attorney is present and they have somebody sign the document, they are going to say that person had the capacity.
MH: Okay, and I know you've litigated in this area many times. So, can you tell us stories, omitting a few names, but of how you deposed attorneys, or maybe even how you examined them when they were on the stand, with regard to this issue?
DJ: Well, it varies by the attorney, right? I mean some of them do a better job of determining whether somebody has the capacity than others. Some of them will actually ask appropriate questions and go through the probate code requirements that are laid out by law as whether somebody has capacity. Some of them actually do that; some of them do a very good job of it. Some of them just seem to say, "Well, I can just tell, I can tell when somebody has capacity." And that's where you get into trouble. If somebody doesn't actually go through the steps, and makes sure that that person has each one of the required elements for capacity for this type of contract, or will, or trust, that's where they get into trouble.
MH: Okay. I know that you try cases, and you have had a number of cases where the person who made the will or the trust is deceased, and at that point, what do you do to go and try to determine if he or she had capacity?
DJ: Well that gets a little bit tougher - and that was the bulk of what we discussed at that
Stanford seminar, because basically when you're getting a psychiatrist, or a psychologist, or a neurologist involved in litigation, it's because somebody is contesting the will or trust. And the person is, at this point, deceased and the psychiatrist can't just go out and talk to that person and say, "Do you understand what you did here?" They actually have to get medical records, and review all the medical records going back years to try and figure out from the notes the other doctors made, whether or not an evaluation was actually made for this particular issue, or whether they have to try to read between the lines and decide whether or not the person had the capacity. And what the psychiatrist and neurologist have told me as well, is that they like to go back, and if there have been depositions taken, or other sworn testimonies by family members or friends, they like to read all of that; trying to get information from all those people as to, "Well, how did this person behave? Were there changes over the years... or was it a constant decline, or was it steady over the past few years?"
MH: And if there is capacity, is that it? For any estate or will litigation?
DJ: Well, capacity is only one part of it. Somebody can have capacity and still be subject to what's known as undue influence, and basically what that means is they rely on other people to such an extent that when that person tells them they should do something, they just do it, relying on that other person's statements and beliefs, instead of thinking it through for themselves.
MH: And have you tried some cases of undue influence?
DJ: Yeah, we have, and we try these cases. Usually they go hand in hand. Usually, we try undue influence, along with lack of capacity; often times there is both. I mean, somebody can have no capacity and be unduly influenced. Just like somebody could have the capacity and yet be unduly influenced. So we try them both at the same time mostly.
MH: Now, that reminds me a little of a case you tried earlier this year where there was an issue of capacity, and also undue influence, and there was a jury trial. Tell us a little bit about that in broad terms, and what kind of action did the court take with regard to determining capacity?
DJ: Well, capacity is an issue that the court decides; it's not a question for the jury. So, in this case, we had the capacity question and undue influence question. The jury gets to decide undue influence. We presented all the evidence, we convinced the court that they should hear the evidence at the same time as the jury, and they could make their ruling while the jury was out, and the jury could make their ruling while the judge was giving his ruling in capacity. And the way it ended up was the jury found there was an undue influence and gave our clients a certain amount of money for that. And then the court ruled that the decedent; the testator, had lacked capacity as well and threw the will out altogether. In which case our clients ended up actually getting a little bit more because it then split 3 ways, instead of more ways under the will.
MH: Okay, good. Well, probably we have covered enough ground today on capacity. I'm certainly glad that you're so active in this area, and so keep it all up, and being able to teach it at Stanford. So I want to thank you, and we'll talk again.
DJ: All right, thank you.
MH: Thank you.