Financial Elder Abuse involving an Attorney

Occasionally an attorney will have a meeting with a prospective elderly client who is exhibiting signs of frailty, e.g. poor vision, short-term memory loss, labored speech, listlessness, etc. The prospective client may want to engage the attorney to draft a trust or amend an existing trust. While an attorney can certainly represent an elderly and frail client, they should be vigilant that such frailties do not impede the client's ability to know and understand the consequences of their actions. In a recent published appellate opinion, an attorney was found to have committed financial elder abuse.

A daughter and a former spouse scheduled a meeting for an attorney to visit with an 86 year-old because they were unhappy with his estate plan, namely his trust. During the meeting, the attorney obtained the man's signature on a $100,000 retainer agreement. The attorney had determined that the man had capacity during the meeting. The attorney then sent a letter to the co-trustees to request payment of the $100,000 retainer. The man's other daughter, a co-trustee, then filed an elder abuse restraining order against the attorney.

"The petition described the alleged abuse as follows. George, a wealthy 86 year old, has major neurocognitive disorder and lacks capacity. Gabriella, Gabriella's husband, and George's former wife Dalyla are unhappy with his estate plan, so Gabriella had Herren meet in secret with George, and now Herren is seeking payment of a $100,000 retainer. After the meeting, George was agitated and upset, and he experienced high blood pressure, rumination, poor sleep, diarrhea, and paranoia. His caregivers were afraid, and his chef quit. Dr. Sutherland reported the Herren incident to the county Adult Protective Services agency (APS)."

"The trial court ultimately issued a restraining order against Herren. In finding that Herren engaged in elder financial abuse, the court concluded the evidence established that Herren obtained a property right from George by undue influence (§ 15610.30, subd. (a)(3)), and that she knew or should have known the taking would be harmful to George (§ 15610.30, subd. (b)). The order prohibited Herren from abusing and contacting George, and ordered her to stay 100 yards away from him and his home."

The attorney naturally appealed this decision. On appeal, the California Court of Appeal upheld the trial court's decision.

"In the published portion of this opinion, we reject Herren's contentions that a restraining order could not be sought or issued under the Elder Abuse Act without the trial court first adjudicating George's competence. We also conclude that substantial evidence supports the finding that Herren committed financial abuse of an elder. (See §§ 15610.07, 15610.30, subd. (a)(3), 15610.70, subd. (a).) In the unpublished portion of the opinion, we reject Herren's other challenges to the elder abuse restraining order."

Herren v. George ____ Cal.App.5th ____ (2025)