New California Case – In re Conservatorship of Gregory D. (California Court of Appeal, Second Appellate District, March 5, 2013, Case No. B237896).

Note: I will be further evaluating and reporting on the Court’s decision in this case as even if the decision is legally correct, the result seems wrong in the context of a conservatorship, a conservatee’s rights, the lack of certain factual findings, and the underlying action being one in equity.

Briefly, the Court held that the mother of an adult conservatee (the conservatee is the mother’s son) lacked standing to appeal the decision of the trial court (the probate court) relating to the son’s visitation terms, who would be providing care to the son, and the sharing of the son’s medical information with certain third parties.  Although the mother had standing to be involved in those proceedings at the probate court level, the mother lacked appellate standing because the mother’s claims on appeal related to her son’s rights or the deprivation of her son’s rights, not to any claim of injury to her own rights.

The Court held that the right to appeal is purely statutory.  Code of Civil Procedure section 902 defines “Who May Appeal” from a judgment.  Any party “aggrieved” may appeal from an adverse judgment.  The test is twofold — one must be both a party of record to the action and aggrieved to have standing to appeal.  One is considered “aggrieved” whose rights or interests are injuriously affected by the judgment.  Conversely, a party who is not aggrieved by an order or judgment has no standing to attack it on appeal.  Injurious effect on another party is insufficient to give rise to appellate standing.  A party cannot assert error that injuriously affected only nonappealing coparties.

“Linda’s opening brief raises the following assignments of error with respect to the November 18, 2011 order: (1) the visitation order, requiring Gregory to spend weekends with his parents, violates Gregory’s rights to liberty and privacy; (2) the order terminating My Life Foundation as the contracted provider of Gregory’s supported living services violated Gregory’s rights under the Lanterman Act (Welf. & Inst. Code, § 4500 et seq.) and was in excess of the court’s jurisdiction because there was no exhaustion of administrative remedies before My Life Foundation was replaced as Gregory’s provider; and (3) the order directing disclosure of Gregory’s records to his parents violates Gregory’s constitutional and statutory rights of privacy.”

The Court held that “Linda has not identified any of her own rights or interests which are injuriously affected by the November 18, 2011 order. Her assignments of error pertain solely to alleged deprivations of Gregory’s rights. However, Linda lacks standing to assert error that injuriously affects only Gregory, a nonappealing party. (Estrada, supra, 125 Cal.App.4th at p. 985.)”

The Court further held that “Linda’s status as Gregory’s concerned mother does not confer standing to appeal on his behalf. With respect to Linda’s role vis-à-vis Gregory, the July 2, 2009 order pursuant to settlement agreement contains the following recital: “’14. LINDA and JOSEPH agree that they shall not hold any title, occupation, or position in this matter, other than parent of GREGORY.'” (Italics added.) Gregory, an adult, is under the limited conservatorship of the Hitchmans. In addition, Gregory has his own counsel. He is represented by Attorney Gaulke, a court appointed attorney who is PVP counsel for the limited conservatee. Gregory declined to appeal from the November 18, 2011 order. Linda, who is not personally aggrieved by said order, lacks standing to assert error on Gregory’s behalf.”

More to follow . . . .

Dave Tate, Esq. (San Francisco).  Contact me if you need assistance with a court case or proceeding, a dispute, or a contentious administration.

Man sentenced for roll in forged will, Click Here For Article.

In will and trust contest actions California law holds that the intent of the decedent should control where his/her assets go. How do you determine the decedent’s intent? Certainly from the pre-death actions of the decedent and from admissible documents that can be authenticated and that aren’t out-of-court hearsay, but what about the decedent’s pre-death statements? Keep in mind that California Evidence Code sections 1260 and 1261 are hearsay exceptions that can be useful tools to bring in decedent’s pre-death statements.

Sections 1260 and 1260 provide as follows:

1260.
(a) Except as provided in subdivision (b), evidence of any of the following statements made by a declarant who is unavailable as a witness is not made inadmissible by the hearsay rule:
(1) That the declarant has or has not made a will or established or amended a revocable trust.
(2) That the declarant has or has not revoked his or her will, revocable trust, or an amendment to a revocable trust.
(3) That identifies the declarant’s will, revocable trust, or an amendment to a revocable trust.
(b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances that indicate its lack of trustworthiness.

1261.
(a) Evidence of a statement is not made inadmissible by the hearsay rule when offered in an action upon a claim or demand against the estate of the declarant if the statement was made upon the personal knowledge of the declarant at a time when the matter had been recently perceived by him and while his recollection was clear.
(b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances such as to indicate its lack of trustworthiness.

Dave Tate, Esq. (San Francisco)