Trusts and Estates
Herren v. George S.
Cite as A171257
Filed March 3, 2025
First District, Div. Three
By Emily Oetting
Sheppard Mullin Richter & Hampton LLP
https://www.sheppardmullin.com
Headnote: Elder Abuse Restraining Orders
Summary: An elder abuse restraining order (EARO) may issue without adjudication of the elder’s capacity, and an attorney’s fee agreement constitutes a property 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 concluded that the elder had capacity to retain her, the elder signed a fee agreement with the attorney that called for a $100,000 retainer. The attorney sent a letter to the co-trustees of the elder’s trust requesting payment of the $100,000 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, including 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 capacity. 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 determined before an EARO may issue as no such determination is required under the Elder Abuse Act. Additionally, 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.