First draft

Business & Professions Code §____

Section 1 – Name and Findings

(a)   This Act shall be known as and may be referred to as:  “……..”

(b)  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

Business & Professions Code §____ is enacted to read as follows:

(a)   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.^[1]

(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.

(e)    There 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:

    (1) Belief was unreasonable under the circumstances, and it would have been obvious to a reasonable person that the belief was unreasonable, or

    (2) 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.