What is a PVP Attorney?
So you’ve decided, for whatever reason, that someone in your life needs a conservatorship. You started investigating the proceedings and perhaps have heard of a number of strange terms: conservatee; incapacity; probate investigator; capacity declaration; or dementia powers. If you are filing in Los Angeles County, you may learn of something called a ‘PVP attorney’. What is a PVP attorney? Do you need one? How do you get one? What exactly does a PVP attorney do?
The abbreviation “PVP” is short for “Probate Volunteer Panel”, which is a panel of attorneys who register with the Los Angeles Superior Court to assist with the resolution of various probate proceedings. The PVP panel consists of attorneys who the court appoints in probate and family law matters, including conservatorships, guardianships and related proceedings. In a typical proceeding, a PVP attorney is appointed to represent the interests of the potential conservatee or ward.
In Los Angeles County, PVP attorneys are required to be members of the State Bar of California in good standing for each of the previous three years and have no pending disciplinary proceedings. The PVP attorney must also meet certain educational requirements and maintain proscribed levels of professional insurance. Within the panel, attorneys frequently designate special expertise and certain members are appointed to deal with particular issues such as special needs trusts, taxes, or complex litigation.
The PVP attorney’s compensation is usually paid either from the conservatee’s estate (if there are resources) or by the County of Los Angeles. As with any attorney, a PVP attorney is required to zealously represent the interests of his or her client. Having been appointed by the court, however, the PVP attorney is given a secondary duty: “The PVP attorney's secondary duty is to assist the court in the resolution of the matter to be decided.” Rule 10.85, Los Angeles County Superior Court Rules.
The interesting conundrum in conservatorship cases is this: the PVP attorney is appointed to defend the legal rights of a client, but those rights include the client’s right to form an attorney-client relationship with the attorney (i.e. the right to contract). If the allegations of the conservatorship petition are true, that the potential conservatee may not have legal capacity to enter into a contract, how can the attorney create an attorney-client relationship with his or her client? If the proposed client isn’t mentally competent, then how can an attorney rely on the client to state his or her desires? Likewise, if the conservatee is legally incompetent is it in his or her best interests to fight the conservatorship proceeding?
Thus the apparent rationale for the court proscribing a secondary role for the PVP attorney; the court wants the PVP attorney to assist the court with the resolution of the matter. The PVP attorney frequently functions like an arm of the court attempting to investigate the various allegations (especially in contested proceedings) and provide objective information about the status of circumstances affecting the welfare of the conservatee. Often the court looks to the PVP attorney to provide an objective, unvarnished assessment of the merits of the conservatorship proceeding.
Another frequently asked question is whether or not the proposed conservatee is entitled to retain an attorney of his or her own choosing. In my experience, the probate court generally prefers using the PVP attorney because of a level of trust associated with the PVP attorney for, among other things, having completed the educational requirements. The non-PVP attorney then must decide whether he or she believes that it is in the client’s best interest for them to continue as additional counsel. The risk posed by this non-PVP attorney is that if the client is found incompetent, he or she may have a difficult time being compensated for services or a demand may even be made for the return of previously paid compensation. A recent opinion of the California Court of Appeals, however, has advised that a prospective conservatee must be given an opportunity to explain why he or she wants to retain other counsel.
When performing his or her duties, the PVP attorney must balance the competing requirements to protect their client’s interests and their court-directed duty to resolve the proceeding. Generally, it is not in the best interests of a proposed conservatee to engage in protracted litigation regarding his or her mental state and most PVP attorneys (in my experience) work hard to find a resolution that is in the best interests of their client.
To paraphrase the Miranda warning, you did not need a PVP attorney but if you are a proposed conservatee, one will be appointed for you. If you are a party to these types of proceedings, how do you deal with a PVP attorney? In my bias opinion (as a current member of the PVP panel), it is usually in the best interests of all parties to fully cooperate with the PVP attorney. As charged by the Court, the PVP attorney has been appointed to “assist the court in the resolution of the matter ….”
June 15th is Elder Abuse Awareness Day!
Although elder abuse was first recognized in the 1970s as a problem in the United States, it is disappointing to see that it is still not a well-know public health issue, especially considering the magnitude of the problem. According to this report prepared for Congress, during 1996 there were 500,000 incidents of elder abuse in the United States. However, this same report asserts that elder abuse claims were vastly underreported, with only 16% of the incidents being reported to law enforcement agencies during the same time period. According to one AARP advisor "people over age 60 make up only one-eighth of the U.S. population, yet they constitute one of every three scam victims."
In an effort to revise this worldwide attitude, in 2006 the United Nations declared June 15th to be World Elder Abuse Awareness day. The International Network for the Prevention of Elder Abuse has suggested wearing purple as a sign of support to prevent the problem of elder abuse. In Los Angeles, celebrities including Ed Asner, Art Linkletter, Michael Reagan, Los Angeles Police Department Police Chief William Bratton, have contributed to the film Saving our Parents which was released in April 2008.
Elder abuse is generally considered to include any knowing intentional or negligent act that results in harm to a vulnerable adult. Such harm can include but is not limited to emotional abuse, physical abuse, sexual abuse, exploitation, neglect or abandonment. Elder abuse is frequently attributed to care givers but in my estimation it is often more common within families. I have encountered numerous situations where family members attempt to misappropriate a senior’s assets for their own benefit in disregard for the senior who is no longer able to raise an adequate defense.
Another commonly recognized form of elder abuse is known as self-abuse. The typical self-abuse situation involves a senior who is no longer capable of managing his or her daily needs and, without involved family or support, the senior tolerates living in dangerous conditions. In the course of my practice, I have encountered numerous elderly individuals living in squalor simply because they were no longer able to understand their conditions or manage their affairs. Sometimes the senior’s deficiencies are physical (failing eyesight, lack of mobility), sometimes the limitations are mental (dementia, Alzheimer’s disease) and sometimes the deficiencies causing self-neglect are manifold.
So what can you do to help prevent elder abuse? I am a big fan of old fashion values: stay close to your loved ones, friends or neighbors who may vulnerable. It is always a good idea to be wary of any new person or organization who becomes involved in an elder’s life. Ask questions and speak up if you have concerns. If the concerns appear serious, call your local law enforcement agency. In Los Angeles County, we are also lucky enough to have a 24 hour Elder Abuse Hotline, (telephone (877) 4-R-SENIORS), which allows you to make confidential reports of suspected elder abuse. If the situation is not resolved to your satisfaction, it may also be useful to consider legal assistance including possibly a conservatorship for the senior in need.
