When Families Fight: Financial Elder Abuse, Conservatorships, and Estate Litigation

Katya Valasek:

We're joined today by Matt Talbot, an attorney who specializes in trust law, conservatorships, financial elder abuse, and related probate matters, including estate planning. What ties these practice areas together?

Matt Talbot:

What really ties these practice areas together is usually the elderly, because what you're doing is you're working with either them while they're alive and they want to set up an estate plan, or maybe them when they're alive, but unfortunately they lack capacity and their care has to be managed, or perhaps when they've passed and now there's issues regarding the distribution of their estate. So in this instance, my practice tends to surround people in maybe their 70s, 80s, 90s. I've even had people in the 100s, you know, that are involved in a case. I have one right now, an elder, 102 and a half, actually, now that I think about it. So that's usually what ties it all together.

Katya Valasek:

I'm so excited to dig into what it is you do day to day, but I want to talk a little bit about how you got here before we begin. So you came out of law school in 2006, and you landed your first job through networking. While you were doing this, were you looking for a particular job in a particular area of law or were you just looking for a job?

Matt Talbot:

Really the latter. And I wish I had some sort of plan or Machiavellian scheme to get that great job out of law school. I went to a law school that wasn't quite as maybe ranked as higher than other law schools. So the opportunities to get these big firm jobs were not quite there. So I knew I wasn't going to go through the OCI process. And in that instance, I had to kind of figure it out. So a mentor friend of mine who unfortunately has passed away since, I met with him and he gave me the name of about 20 lawyer friends of his and I just cold emailed them or cold called them and I said, can I do an informational interview to learn more about your field? And then I met with 10 or 15 of them. Then when I passed the bar, I followed back up with them to see if opportunities existed. And I think two did. And I just took the first one and the first one just happened to be in probate law. I hadn't really had any focus on that, but I really enjoyed doing it the last 18 and a half years. And I'm happy that I fell backwards into it.

Katya Valasek:

When you started then, how long did it take you to feel like you had some confidence in what you were doing?

Matt Talbot:

It took a while. I'm not going to lie about that, in part because I went to a small firm and I had a lot put on me. You know, I started work on February 1st, 2007. And my first day going to court was February 2nd, 2007. And I just shadowed my boss at that time, but I kind of got thrown into the fire. I was given a trial that took place, I think in May of 2007, which I promptly lost. My boss said to do it again and I lost it the second time in June or July of 2007. So it was a very steep learning curve and it was tough to jump into that field. But the good news was that when you get punched and you get knocked down and you just keep getting back up, over time you figure it out. And when you have that experience, you quickly are able to get your reps in and feel more confident going forward with other types of cases. I got into 2008, 2009, 2010 time period.

Katya Valasek:

Tough start to lose twice. What was that case about?

Matt Talbot:

That case was an eviction matter. And there is some overlap between probate law and eviction law. I don't remember the case super well because it was 18 plus years ago. But in this field, oftentimes you have a property and that property has a tenant, but the tenant needs to be evicted so the property can be sold, distributed to the beneficiaries or at least the sales proceeds thereof. But eviction law is very complicated, especially in the Bay Area, very niche. And I'm sure I made every mistake in the book.

I remember I wrote all the questions in what I now see was a leading fashion, but at the time did not understand exactly what that meant. The other side didn't object, but the judge started objecting for them and complaining that I was doing the questions incorrectly, which was in retrospect a fair criticism. And so that's what it was, which was an eviction trial. And that's how I could do it two times because if you fail the first month and they still don't pay the rent, you can try it again the next month.

Katya Valasek:

Your boss gave you the opportunity to do it again. So did you feel like you were given support to help you find your footing after that initial loss or were you really on your own learning under trial by fire?

Matt Talbot:

I think that there was a balance to that. Certainly my former boss wanted to provide support, but I think it's tough sometimes. And I did have to learn things the hard way.

I think a lot of young attorneys do unfortunately go through that and it can be very frustrating at the time. I'd been generally successful in life. I was good in high school, so I went to a generally good college and then I got a decent LSAT score and I generally went to a good law school. And then I passed the bar on my first time and I thought, wow, I'm really good at this. And then I immediately failed. So that can be very challenging for people, especially if they don't have the support from the higher ups.

Katya Valasek:

You ended up working at that first firm for roughly eight years and then went on to start your own firm. One of the focus areas of your practice is conservatorships. Can you explain what that is?

Matt Talbot:

A lot of people have no idea what a conservatorship is, but they vaguely have heard of it because of Britney Spears. And to try to put it at the 5,000 view level as much as possible, it's where a judge appoints a person to make medical or financial decisions on behalf of another person. That's really the base of it.

And so the judge in L.A. appointed James Spears to make decisions on behalf of Britney Spears, claiming that Britney Spears did not have the full mental capacity to make her own decisions. And I can't speak to the specifics of that case, but I'm just using it as an example of what a conservatorship looks like.

Katya Valasek:

And how does a conservatorship differ from a guardianship?

Matt Talbot:

In California, a conservatorship is for a person who's 18 years or older, but a guardianship is for a minor 17 years or younger. They are really the same basic thing, but fundamentally it's just the age difference. And there's a lot of complexities relating to minors versus adults.

Katya Valasek:

It makes sense, that distinction, because everyone knows the thrill when they turned 18 of being able to sign for themselves and make certain decisions on their own. So to say that someone who is 18 or older still needs someone making decisions for them, that's a pretty complicated thing to try and prove, I would imagine. And it has big implications on the individuals that are being placed in conservatorships. Who do you typically represent in your practice?

Matt Talbot:

Well, for conservatorships, honestly, we represent every side of a conservatorship. I've represented a petitioning party, I've represented an opposing party, I've been on the panel where I'm court appointed to represent a conservatee. I took a case to trial once representing a conservatee who very clearly needed the conservatorship.

But as his court appointed attorney, I had to effectuate his objection. And the judge granted him a trial, and we went to trial and I did the best I could knowing that I was going to lose because he genuinely needed the conservatorship. So we've represented people from all angles. I have represented professional conservators who come in to manage the care of an elder if there's no family who can do it, or if the family is fighting, and there's no one that can be trusted to be the conservator.

Katya Valasek:

So these are complicated, potentially really emotional matters that are being litigated. What do you do to vet the authenticity of the claims, regardless of who you're representing?

Matt Talbot:

Well, it's important to vet the authenticity because the number one thing you don't want is to get to court, and then the other side is able to, in some way, destroy your client's credibility by saying that the claims are invalid. So we want to try to get as much evidence as possible. Whenever I file a pleading or I file a petition for conservatorship, we want to attach as much as possible in evidence to the pleading to prove the case isn't just what my client says, but it has independent verification from this medical paperwork, or from this financial paperwork, or from estate planning paperwork, or even from other parties.

Sometimes I'll have a declaration or declarations from third parties, other family members who support my client's claims. So we really want to have the broadest filing possible, or supplement. Sometimes the evidence comes in after the filing. We want to supplement it if possible.

Katya Valasek:

Do you use a lot of experts when you're establishing the authenticity of a claim?

Matt Talbot:

If the case goes to trial, then yes. We have had to hire experts to testify. I can think of a few instances right now off the top of my head why I hired experts to testify in a conservatorship trial. If it's before trial, we don't necessarily hire an expert, but we do want to get what I would view as a fact witness, the actual doctor who did the evaluation, the mental capacity evaluation, to prepare paperwork for the court. This is called a capacity declaration, and this is a standard document in all conservatorships. It's really important because we want to know, everybody wants to know, what the capacity of the elder is.

That provides guidance for the court, because what they're doing is taking away constitutional rights. It's imperative that it's based on valid medical paperwork, and the standard is a doctor who has two or more years experience diagnosing dementia.

Katya Valasek:

It sounds like even a pretty basic conservatorship case can be pretty complicated, but you've handled some really complex cases, including ones that cover kidnapping and take place across different jurisdictions. Can you tell me a little bit about one of these cases and what it is that makes that type of case so difficult?

Matt Talbot:

Well, any conservatorship is so complicated because of the paperwork and the hurdles that have to be jumped, especially after Britney Spears. They modified a lot of the laws, making it even more difficult, so it gets more and more complicated every year.

As far as the kidnappings, that's correct. I have handled maybe about six or seven cases involving kidnappings, and it may be that in the world somewhere there's strangers that pop out and grab people and put them in a car and run away. I can't speak to that. My understanding of kidnappings is that it's usually a family member taking a mother or a father who is vulnerable away from a sibling for power or control reasons.

One example I can think of off the top of my head, the elder was moved into a sibling's home. I want to say about a two-hour drive from where my client lived in California. My client had not seen their parent in about two years. At that time, we had to go get conservatorship. We had to win the trial, which took multiple days because there was so much testimony that had to be taken. We had to take the elder's testimony, and she was very clearly demented. We put her on the stand, and she couldn't remember how many kids she had, their names, things along those lines. It was evident almost immediately that she lacked capacity. Then we had to get a court order seizing her from this home and returning her to her home. Then there's added complexity there because there was a trust, modifications have been made to her trust, and she's worth several million dollars. It's a very complex situation, not an emotionally basic one. That took quite some time.

There was an appeal, then we had to settle the appeal, and there were a lot of motions and fighting on discovery. This case would take me maybe two hours to explain the whole thing, so I'm trying to stay top level.

Katya Valasek:

I mean, essentially, you are dealing with families in crisis, people fighting over control, or genuinely just worried about a loved one and their future. How do you navigate this emotional landscape while staying focused on the legal work?

Matt Talbot:

You know, it's funny. I was talking with my therapist about that just last night, and the fact that I have a therapist in part is because of the complexity of this type of field. People don't come into my office and say, I'm having a great day, generally. You know, they come to my office and they say, my mom has dementia, and my dad just died from cancer. I don't know what to do. Can you help me? Or my dad just died, and it turned out that he did the deathbed will and cut me out and gave everything to my brother. Things along those lines. In this instance, it is very emotionally challenging, and as I sit here today, I can recall cases that I failed or I lost, and I can remember going home and crying that evening because I felt like I let down my client.

What I have come to after doing this for 18 years and running my own firm for 10 years, and talking with my therapist for a number of years at this point, is that I cannot do the best job for my client if I'm emotionally invested in the case. You don't want your mechanic emotionally invested in the car. You don't want your surgeon emotionally invested in the person that they're doing the surgery on. You want them focused. They're going to do whatever they do. They're going to get their job done.

But this field is so much more different than an auto mechanic field or a surgeon field because of the emotion. So I have to divorce myself to that, and really the best way, honestly in my experience, the best way is just to become dead to it from repeated cases.

Katya Valasek:

How far into your career were you when you realized that having a therapist to talk through the emotions would be beneficial to you as an attorney?

Matt Talbot:

In retrospect, it's later than it should have been because I've only been talking to my therapist for, I want to say maybe about two, three years now, and there were definitely times five, 10 years ago, cases I can think of right now that were really so stressful to me, lawyers that I dealt with that were so stressful to me. And I just internalized that. And I think a lot of lawyers internalize that because a lot of lawyers deal with stressful things.

If it's a family law case, divorce is very stressful. If it's a personal injury case and someone got injured in a car accident and they broke their ankle, well, that's very stressful too. My dad always said that I was the only lawyer he saw that seemed to enjoy his job. I think a lot of lawyers internalize the stress of their clients through the secondhand trauma and they don't deal with it in a very prudent way. And that was perhaps me for so many years.

Katya Valasek:

So I know you didn't plan on a career in this practice area, but was the emotional component to practicing law on your radar as you were going through law school or was it more of a surprise once you got into practice?

Matt Talbot:

I think it was a surprise about 10 years or so, eight or 10 years into practice, in part because when you talk about law school issues, what they learn is usually more about the estate planning side. The estate litigation side is not as well known in my experience. When you're in law school, you learn what is a trust? What is a will? What is a power of attorney? You don't necessarily have dealings with how do you handle a client sobbing in your office because she's going through this thing or that thing. You don't deal with what do you do when lawyers are sending you emails with discovery and you have to get this all done and your client is freaking out and is struggling to focus on it and the lawyers are harassing you over email. That is not the type of thing that a lot of law schools focus on.

Katya Valasek:

How do you handle a client crying in your office? And how has that changed since you started?

Matt Talbot:

I think I've become maybe a little ruder to it, which is, you know, in the beginning, your heart goes out to them and you want to try to help them 100%. You want to do what you can. But after a certain while, you realize that maybe you're better off as a professional.

Obviously, you want to show sympathy, but maybe you're better off as a professional with emotional distance. You want to support them 100%, but sometimes the emotional impact of the situation makes them want to do things that are actively worse for their case. And you have to be the person giving bad news or a reality check. You know, I want to really go after my brother and I really want to prove this thing and that thing. Well, I'm sorry, but to do that, you don't have the facts. You don't have the evidence. And it would be not the smartest idea. Or if you just indulge their emotions, that's not always in their best interest.

Katya Valasek:

Switching gears here a bit, you mentioned the Britney Spears conservatorship case earlier. That brought a spotlight to conservatorship abuse. This idea that someone can wrongly lose control of their life or finances can be terrifying to imagine. Is that something you've seen in your practice or is it more of a misconception?

Matt Talbot:

I have not seen that often. I'm certain that there are circumstances where it has occurred. Britney Spears obviously felt that way. And I do think that that was abusive. Trying to base a type of law or the legislature's approach on a type of law from one obviously extreme circumstance, in my view, is not the best. The vast majority of conservatorships are people just trying to help out loved ones. They're not abusive. They're not antagonistic. There is conservatorship litigation, as I indicated. And in those types of cases, a conservatorship is set up maybe over the objection of someone else. I'm sure that the losing side says, conservatorship abuse, this is abusive. And the winning side says, no such thing as conservatorship abuse. What are you talking about?

But I will say that conservatorship litigation is much smaller percentage-wise than people might think. And I think conservatorship abuse is much smaller. Most of these cases are based on the genuine need for managing care of an elder, the genuine mental incapacity, and the lack of estate planning documents that would provide the authority necessary to make decisions on behalf of an elder, thus requiring a judge to appoint an agent to make decisions.

Katya Valasek:

If you're involved in a case and you are not representing the individual who they're trying to put under conservatorship, do you owe that person any sort of duty if you're involved in the matter through someone else who's involved in the litigation? Or are you solely focused on the person you're representing?

Matt Talbot:

I really view that I'm solely focused on the person I'm representing. My responsibility is to zealously advocate for my client's interest. In California, especially after Britney Spears, now under the law, they will appoint an attorney for every proposed conservatee.

Before Britney Spears, it was most proposed conservatees. Now it's every proposed conservatee. And now, under the new Britney Spears laws, that conservatee's attorney has to do exactly what the conservatee wants, no matter how stupid or ill-advised it may be.

But in this instance, I've had situations where I'm court-appointed, as I indicated, and I had to object on behalf of the conservatee's son helping out the conservatee, even though it was just a son trying to help his dad. And so I did that, and we went to trial, and it was a bit of a waste of everyone's time in a sense, but it provided due process. If I'm representing someone else, I now know that the conservatee's counsel will be there to manage the objections and the fighting and the zealous advocacy of the proposed conservatee.

Katya Valasek:

Do you think that this change is an important one, and for the better?

Matt Talbot:

I think it is an important one, because before there was a dispute, I would say, over the role of conservatee's counsel. For example, in Alameda County, the conservatee's counsel there always zealously advocated for the interests of the elder. But in Contra Costa County, where my office is, and I practice in both of these counties, but in Contra Costa County, prior to the Britney Spears change, the conservatee's counsel generally tried to determine the best interest analysis. And what that meant is, what is the best interest of the elder, even if it's not what they want? So these are two very distinct things. And so there was this fight, and there was this dispute in the industry. Now it's become more clear. I personally was on the best interest side. So I feel that the Britney Spears laws perhaps were not as good, but at least what they did is provided clarity for the role of conservatee's counsel. So there's no more issues and no more disputes over what their job is going to be, because I can think of at least two instances in which someone tried to fire me as conservatee's counsel because they felt that I was doing a bad job by not advocating solely and exclusively for the elder's benefit.

Katya Valasek:

You mentioned you work in multiple counties in California. What is it like working across different jurisdictions? Does this ever complicate how you advocate for your client?

Matt Talbot:

Oh, 100%. There's 58 different counties in California, and God knows how many counties in other states. I can think of one case right now, conservatorship, where I was court appointed, my client was kidnapped to Oregon, then they had a trial in Oregon whether she should be up in Oregon or returned to California.

The judge there found that she should be returned to California. So then she was returned to California for us to fight here over the interests of the elder. So there you're seeing a lot of disputes over what state, and I don't know conservatorship law in Oregon, but I presume that they were fighting up there under that process and then sending back down.

And we also have cases here where I might have a trust proceeding in one county and a conservatorship proceeding in a different county, because the code sections on venue and jurisdiction for different types of cases, whether it's probate, trust, conservatorship, et cetera, can lead to different counties for the relevant venue. For example, right now I have a case with a conservatorship proceeding in Santa Clara County. However, the trust proceeding would be in Riverside County, which is in Southern California versus Northern California. So sometimes these counties aren't even next to each other, and that's fairly common. We recently had five, we had one day where we had five court hearings in five different counties in the same day. So things are all over the place.

Katya Valasek:

This is like a civil procedure issue spotting final exam happening in real life. I want to turn now to your work in financial elder abuse. What does that look like?

Matt Talbot:

Financial elder abuse in its basest elements is the taking of assets from someone 65 years or older for improper use. Improper use is really what is the fight. People will say, well, I took it for a proper use. Mom wanted me to have this. Dad wanted me to have this. In my experience, financial elder abuse is usually tucked into something.

What I mean by that is we have a trust litigation on some issue, and then there's this issue, that issue, and also, by the way, there's financial elder abuse that we're dealing with, because they took money from mom before she died. There's sometimes civil financial elder abuse that's filed in the civil departments, not the probate departments. I end up with some of those cases. But in my experience, standalone financial elder abuse cases are more rare than it being a part of a larger constellation of litigation issues.

Katya Valasek:

Who are the typical perpetrators? Is it usually family?

Matt Talbot:

99.9% of times, it's family. And no one is ever an elder abuser. Everyone is the protagonist in their own story, and so they're always of the belief, well, mom wanted me to have this money. But then the other side of the story is, well, you stole that money. It's very common. And those cases tend to settle fairly simply because it's a dollar amount. Oh, you took $100,000 from mom. Why don't you just return $50,000? We'll do a settlement. And it's not even sometimes a return of money. It's just you're going to get $200,000 out of the trust, but you took $100,000. And we'll call it an advance, and we'll redo the math.

Katya Valasek:

How do these cases typically come to your attention? You said they're folded into something else, but is it family members who notice something's off with the finances, or is it banks or other professionals who raise a flag if they see something that doesn't seem to be the right math?

Matt Talbot:

In my experience as family members, I don't have as much experience with banks, although every now and then there is something involving banks. I know there was a case involving Wendy Williams, where Wells Fargo got involved with her finances. But I think that's because she was a celebrity. Most banks, I don't know if they're mandatory reporters off the top of my head, but most banks don't seem to care as much. They're just like, oh, okay, you have the appropriate authority. You can withdraw this money. That's fine. Thank you. They're not going to get into the weeds of determining the propriety of the withdrawal. So it falls to the family members to say, well, my brother just took $100,000 from the bank account. We need to investigate this further.

Katya Valasek:

If a person has already passed or is no longer able to articulate their desires for their finances, how do you go about determining whether financial abuse occurred?

Matt Talbot:

That's really the toughest part of that, determining was it a loan? Was it a gift? Did they take it over the objection of the elder? What were the communications surrounding these types of cases? Oftentimes there is no written communication and it's just a he said, she said type of situation. Usually if the client believes that there's some concern about misappropriation, I put it on the other side. What I mean by that is we assume that it's inappropriate and say to them, you need to prove that this was appropriate and if they can't, then that's what leads to a deal.

Katya Valasek:

And what sort of things are you looking for from them to prove their case?

Matt Talbot:

The best thing would be some sort of writing. Something that says, I want my son to have this money. I want my daughter to have this money. There's nothing in writing and there's no clear evidence. I think both sides at that point are thinking trial is going to be tough. We don't know this is going to go. Let's just try to cut a deal.

Katya Valasek:

Do you approach situations where you realize that the claim of financial elder abuse is unfounded in any specific way to try and preserve the family dynamic, especially if it's not a large sum of money involved? Or do you zealously represent your client regardless of what you think the outcome is going to be?

Matt Talbot:

Well, I'll advise my client on whether they want to move forward. So I might say to them, you need to think very carefully if you actually want to go down this path because it's going to be a nuclear bomb on relationships. Maybe they don't care because maybe the relationships are already estranged or frayed, but they need to at least be advised of it. And that oftentimes costs to go to trial can eat into winnings, especially with appeals. I won a trial in 2023 that's still up on appeal. So even if you go and you win and you have some smashing victory, my client doesn't receive a penny in that case because it's been up on appeal for two years.

So I want to make it clear to the client because I don't want the client getting stuck in a morass of litigation and then blaming me for it later. If they want to proceed, then that's fine. We'll proceed and we'll do an investigation.

You talked about whether things are founded or unfounded. What I try to do at the outset is what's called subpoenas. And these are demands to banks to receive financial institution information. And the bank statements will be provided to us directly and we can analyze them and determine how founded these allegations genuinely are. My client says $100,000 was stolen, but if we look to the bank statements and we can't find it, then maybe there you go. There's nothing that can be done.

Katya Valasek:

Your practice involves families where there may have been no planning. There may have been unclear communication of wishes or plans. How has your career influenced the way you interact with your own family?

Matt Talbot:

I have had breakfast with my parents every Saturday morning for as long as I can remember, as much as possible, because I want to try to have the best possible relationship with them because I see the most broken families. I see brothers that won't talk to brothers. I see fathers suing sons. I see every type of disaster in a family.

And in this instance, it informs me that I think it's imperative to maintain the best relationships. I've also hired an attorney to, and this is a little complicated, but enter into a contract with my siblings to control for distribution after our parents pass, which hopefully many decades in the future, many, many years in the future, but to essentially give up rights of partition in California to basically make it so we can't sell our parents' house. Because I've seen so many instances in which the family home, there's a forced sale for whatever reason, and then they lose the family home and that's devastating to their family. And I would feel devastated if I lost my own family home. And I don't want to be in that situation with my siblings if I can avoid it.

Katya Valasek:

After years of navigating these complex cases and falling into it accidentally from the start, what advice would you give to someone entering the field? If they cold called you and asked for an informational interview about what you do?

Matt Talbot:

I do have people who reach out to me and I'm happy to say now what I say to them to the extent possible, go to court, which is very easy. You can go on Zoom, there's 58 different counties. You can get the links and you can watch what happens and you can learn.

I had a trial last week and I had a young staff member at my office, just sit there for the first hour or so. And I said, you're either going to love this or you're going to hate it, but you'll learn if this is the type of law that maybe you want to do. I really think that if you're interested in doing probate litigation, conservatorships, estate litigation, that type of complicated work, you need to know if being in court is something that interests you and you need to know what that looks like. You need to know if you hate it, you hate talking in public, which is what a lot of it is. You get nervous on your feet quickly. You get stressed out. That's fine. That still happens to me. I was in a court hearing just this morning and I had stress. It's very common, but I would just say, go to court as much as possible just to watch and understand things.