& Professions Code §____
Section 1 – Name and Findings
This Act shall be known as and may be referred to as:
The Legislature finds that …. [assisting perps in getting instruments
signed increases the risk of neglect and worse harm.
Insert here links to research showing significant correlation between
financial abuse of elderly and increased mortality].
Section 2 - Legislation
& Professions Code §____ is enacted to read as follows:
Once a lawyer has perceived information on the basis of which a reasonable
person would have a serious question about the competence of a client, the
lawyer has no less duty to take cognizance of the client’s mental function
deficits than other vendors of personal services who are not mental health care
providers. The duty to take cognizance is part of the attorney’s duty of
care to the client.
(b) For the
purposes of this statute, an attorney shall be deemed to have had knowledge that
the attorney’s client is incompetent to execute an instrument or that the
client’s execution of the instrument is the product of fraud, menace, duress
or undue influence, if on the basis of the information received by the attorney,
it is obvious to a reasonable person that the client is not competent to
execute the instrument or that the client’s execution of the instrument is the
product of fraud, menace, duress or undue influence.
(c) An attorney
violates the attorney’s duty of care to a client if the attorney knowingly
assists a client to execute an estate planning instrument at a time when the
attorney knows that the client is incompetent to execute the instrument or that
the client’s execution of the instrument is the product of fraud, menace,
duress or undue influence.
(d) It is the
intent of the Legislature in enacting this section to overrule Moore v. Anderson
Zeigler Disharoon Gallagher & Gray (1st Dist. 2003) 109 Cal.App.4th 1287.
shall be a rebuttable presumption affecting the burden of proof that a lawyer
reasonably believed that the lawyer's client was competent at the time in
question for the purposes in question. This presumption shall be
rebuttable by clear and convincing evidence that the lawyer's:
Belief was unreasonable under the circumstances, and it would have been obvious
to a reasonable person that the belief was unreasonable, or
Failure to investigate the client's competence reasonably under the
circumstances was either intentional or with a reckless disregard for the high
probability of serious harm.
Cf the definition of “bad faith” in Welf. & Inst. Code