November 4, 2015
In Re Conservatorship of Person and Estate of Moore
When an attorney becomes the trustee of a client's trust, trouble usually ensues. The following published decision is representative of this.
In Re Conservatorship of Person and Estate of Moore, __ Cal.App.4th __ (2015)
Attorney William Salzwedel was retained by Lester Moore to assist with amending his estate plan and filing an elder abuse action against his daughter. The elder abuse action stemmed from Mr. Moore's daughter, Poppy Helgren, questioning Mr. Moore about large monetary gifts Mr. Moore was providing his girlfriend. In fact, according to the appellate opinion, Ms. Helgren did nothing wrong. Ms. Helgren became concerned about this after being notified from Mr. Moore's doctors that he "suffered from dementia and lacked the capacity to handle his affairs."
In October 2010, Mr. Salzwedel had Mr. Moore "sign the following documents: (1) a partial revocation and modification of the Trust, naming appellant as temporary successor trustee of the Trust; (2) Moore's resignation as trustee; and (3) a Durable Power of Attorney appointing appellant as Moore's attorney-in-fact."
In December 2010, Ms. Helgren "filed a petition for conservatorship. A few months later, she filed a second petition to determine Moore's capacity to execute the estate planning documents."
Mr. Moore, through Mr. Salzwedel, to put it mildly, vigorously objected to the conservatorship petition. The resulting fees and charges was reflective of that. Later Mr. Salzwedel was removed as trustee in May 2012 by the probate court and it ordered him to account for his expenses.
The details of the accounting were eye-opening.........
"The probate court noted that the accounting listed $474,348.01 in opening inventory and cash receipts and that appellant paid himself $148,105.11 in fees, or 31.22% of the conservatee's reported trust estate, . . . plus another $32,288.21, or another 6.81% of the conservatee's reported trust estate, in related professional and litigation fees."
"The expert witness expenses ($27,515.13) were also excessive. Appellant retained Edward Hyman, Ph.D., a psychologist, from Northern California who billed at the rate of $495 an hour. Doctor Hyman charged $6,000 for travel time and billed 23.25 hours ($11,508.75) on January 6, 2012 for "report writing" and a psychological assessment. The trial court found that appellant could have hired an medical expert from UCLA to make the psychological evaluation for $2,500. Appellant also paid a "celebrity psychiatrist," Dr. Carole Lieberman, $7,500 to evaluate Moore but the doctor never wrote a report or testified. In an e-mail, appellant admitted that Doctor Lieberman's fees were shocking and that Doctor Hyman's travel fees were an embarrassment. Appellant paid another attorney-doctor, Alan Abrams, $3,000 to review some medical records. The trial court found that $2,500 was a reasonable fee for Moore's psychological evaluation and that "everything else was wasted money and wasted time."
Predictably, the appellate court upheld the "$96,077.14 judgment surcharging him for excessive attorney's/trustee's fees ($70,044.99), medical expert fees ($25,015.13), and costs ($1,017.02)."