Imagine that you are the trustee of your father’s trust and also hold his power of attorney. He is in his mid-80s, physically frail and depressed. He has been diagnosed with a neurocognitive disorder and two doctors have stated that he lacks capacity. You have observed that his memory is worsening.
While you are out of town, your sibling secretly arranges for an outside lawyer to meet privately with your father under circumstances suggesting undue influence. The lawyer has your father sign a $100,000 retainer agreement and then claims to represent him. When you return, your father has no memory of meeting the lawyer and no understanding of what he supposedly agreed to. What can you do?
This was the situation in Herren v. George, 109 Cal.App.5th 410 (Mar. 3, 2025). One daughter, Susannah, had been appointed attorney-in-fact and co-trustee under her father George’s estate plan. Her sister, Gabriella, arranged for attorney Herren to meet with George and obtain a signed retainer agreement. When Susannah discovered what had happened, she denied Herren’s request for payment of the retainer. Acting as a trustee and attorney-in-fact, Susannah sought an elder abuse restraining order against Herren under California’s Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code §§ 15600 et seq.), enjoining him from further contact with George.
After a hearing, the trial court found sufficient evidence that Herren had committed financial elder abuse and issued the restraining order. Herren appealed, arguing that Susannah lacked standing under the Act and that no order could issue without a judicial declaration of George’s incapacity. He contended that because the presumption of competence had not been rebutted, the court was powerless to issue protective relief. The Court of Appeal rejected these arguments and affirmed.
The decision is significant for two reasons.
First, the Court confirmed that no prior judicial finding of incapacity is required. A trustee or attorney-in-fact may seek an elder abuse restraining order without initiating a conservatorship or proving incapacity in a separate proceeding.
Second, the Court recognized that a retainer agreement itself is a property right. Even if no funds have yet changed hands, obtaining an elder’s signature on a contract through undue influence constitutes a deprivation of property under the Elder Abuse Act.
