Recent Case Alert

​Conservatorship of Moore

Filed September 30, 2015, Second District, Division Six

Cite as B253538

After doctors diagnosed 82-year-old Lester Moore with dementia and alerted his daughter that he could no longer manage his own affairs, his attorney William Salzwedel prepared documents in which Moore modified his trust to disinherit family members, and appointed Salzwedel as temporary trustee and agent under a durable power of attorney, replacing Moore’s daughter. Salzwedel also vigorously opposed the daughter’s petition for a conservatorship and an adjudication of her father’s capacity to execute the documents. Before Salzwedel’s ultimate removal as trustee and attorney he paid himself $148,000 in trustee fees, representing 32% of the estate, and incurred $32,000 in litigation expenses. The court surcharged Salzwedel $70,000 in attorney’s fees and $25,000 in expert medical fees incurred in unsuccessfully opposing the daughter’s petition, all of which were found to be excessive and of no benefit to Moore’s estate.

The Court of Appeal affirmed. An attorney cannot put on blinders and follow the orders of a client he knew suffered from mental impairment. To the extent that the trust did not stand to benefit from the litigation there was no basis for recovery of legal expenses from trust assets. Salzwedel put his own financial interests before those of his client and failed to safeguard his client's person and financial interests. It was irrelevant that Moore did not object to the fees, or that they were incurred before adjudication of his capacity. The client's wishes or objectives did not trump the attorney-trustee's duty to prudently spend trust money and avoid conflicts of interest. Also, since Salzwedel served as both attorney and trustee, he was required to obtain advance approval of his fees from the court. The court referred Salzwedel to the State Bar for possible discipline.

http://www.courts.ca.gov/opinions/documents/B253538.PDF