What You Should Know About Court Proceedings
What Is Elder Law Litigation?
It is an area of the law that addresses lawsuits that involve elders, the people who are responsible to them and, often, their family members. It deals with various types of disagreements that rise to the level where court intervention becomes necessary. An attorney who practices in this field is generally experienced in presenting cases in a courtroom to a judge or jury on significant questions involving the personal and property rights of elders.
The litigator is the lawyer who is seasoned in representing parties from the inception of a matter where the rights of the elder come into question through the legal process, trial, and beyond, to appeal. The Elder Law litigator advocates for the rights of the elderly party.
Litigation begins with a civil complaint that the defending parties must answer. The attorney has tools available to discover the facts that will be used to prove the matter to a judge or jury. The litigator must have confidence and training in the art of presenting the case in a clear and conceivable fashion, using the facts developed in support of the case. The litigator should be able to present options to the client for resolution of the matter through communication with the opposing party, alternative dispute forums, or through trial.
The following are some examples of different types of cases where an Elder Law litigator will have special knowledge and experience to address and resolve legal issues that arise.
Probate Litigation
Probate litigation involves a variety of issues related to aging, disability,, and death, including legal disputes over wills, powers of attorney, living wills or advance directives, estate proceedings, and administration of an estate. Litigation can involve contests over the validity of a last will and testament, capacity to execute estate planning documents, undue influence and duress claims, breach of fiduciary duty claims, accountings, surcharges, and removal of those who serve in a fiduciary position. Very often there is disagreement among family members as to their rights to control or receive property which belongs or belonged to the elderly relative.
An experienced Elder Law litigator will provide essential representation in these areas of probate litigation. Such proceedings can be complex and require knowledge and experience that one would find in an Elder Law litigator. Knowledge and experience in courtroom procedures and how to effectively resolve such disputes along with the tools, confidence, and training in the art of providing clear and concise representation in contested probates are essential to representation of parties contesting a probate matter.
Guardianship and Conservatorship Litigation
Guardianships (called conservatorships in some states) are legal processes, utilized when a person has become incapacitated and can no longer make or communicate safe or sound decisions about his or her personal affairs or property.
In some states, conservatorship is used to appoint a responsible person, called a fiduciary, to manage the property of an individual who consents to the appointment. Establishing guardianship is a legal process that results in the transfer of considerable rights from an incapacitated individual to his or her guardian. Guardianship should only be considered after alternatives to the appointment have proven ineffective or are unavailable.
Representation by an experienced Elder Law litigator is critical to protect the due process rights of the alleged incapacitated person. State statutes and court rules govern the proceedings. A guardian may be a family member, friend, a professional, or a public or private entity appointed by the court. A guardian’s authority is defined by the court, and the guardian may not operate outside that authority. In any type of guardianship, the court may limit the guardian’s authority to assure as much autonomy as possible, with the guiding principle being the least restrictive alternative.
Guardianship and conservatorship proceedings may be contested as to incapacity, the nature and extent of the guardianship, who shall serve as guardian, the guardian’s authority, or questions concerning the guardian’s actions. Additionally, management of the ward’s assets and the medical decision making process could be areas of contention for interested parties. An experienced Elder Law litigator will provide representation in these and other aspects of guardianship litigation, complex and disputed guardianship administration as well as in litigation involving breach of fiduciary duty claims, accounting, surcharge, and removal of fiduciaries. One advantage the litigator has over other Elder Law attorneys is his or her familiarity with the guiding principles of guardianship and how a court generally interprets and applies the standards which need to be proven in order to provide the least restrictive means of protecting vulnerable elders.
Trust Litigation
A trust is generally used as a way of managing assets both during the life of the primary beneficiary or beneficiaries and after the death of the grantor. Many issues may arise in the course of the life of a trust. For instance, one might question whether the trust document represented the express wishes of the grantor, or creator, of the trust. There could be evidence of undue influence or duress exercised over the grantor by others in the creation of the trust. Or perhaps there is a question of the grantor’s capacity to make complex decisions as is required in the formation of a trust.
The person who manages the trust, the trustee, has certain duties required by his or her position in relation to the lifetime and remainder beneficiaries. Often questions arise as to how responsive a trustee must be to the demands of the beneficiaries and whether the beneficiaries have a right to make demands upon the trustee. If the trustee does not act fairly or prudently, or breaches his or her duty to those beneficiaries, whether those duties arise under the trust document or the law, liability might result.
While the attorney who drafts the trust may be most familiar with its terms, that attorney might not be in a position to respond to the questions raised or to represent some or all of the parties involved in litigation over such issues. This may be a result of conflicting responsibilities or his or her level of comfort to address questions raised inside a courtroom.
That is where the Elder Law litigator steps in. An attorney familiar with courtroom procedure will feel comfortable establishing pleadings, pursuing discovery, and taking the matter to mediation and trial. He or she should have the experience to guide you through the lawsuit and explain each step along the way. The litigator will have a different vantage point from the drafting attorney in order to address the client’s options for eventual resolution.
Elder Law Advocacy and Litigation
The elderly and infirm often fall prey to those willing to take advantage. Exploitation of the elderly is a growing problem in our society. People are living longer, thus the occurrence of dementing illnesses is much greater now than ever before. That means there are potentially more vulnerable elders in our communities than there had been in the past.
Those who exercise undue influence or place elders under duress to achieve financial advantage can be related to their victims, distantly known, or strangers. Sometimes those who are duped are not aware that they have been taken advantage of. They may be embarrassed to step forward or feel powerless to correct the situation because of dependence on the very person who has done them wrong.
It takes an attorney who can properly analyze the relationships, the financial records, the factual situations, and the hardships to get results for the vulnerable elder. Success is often dependent upon the experience of the attorney in the courtroom. The Elder Law litigator is the attorney who is equipped to investigate and bring the issues to a resolution that is in the best interests of the elder.
This information is provided as a public service and is not intended as legal advice. Such advice should be obtained from a qualified Elder and Special Needs Law attorney.