When the Attorney Is the Threat: What Herren v. George S. Means for Trustees Protecting Vulnerable Elders

On May 3, 2024, a trust and estate attorney named Jaime B. Herren arrived at the home of an 86-year-old man named George S. He could not remember whether he had a girlfriend, whether his parents were alive, or where he lived. His short-term memory was "almost gone." He was legally blind. Two doctors had already declared he lacked the capacity to make medical or financial decisions. His round-the-clock caregiver was on duty. His trustee-daughter was out of town.

Herren demanded to be alone with George. When the caregiver protested, Herren threatened her with an elder abuse charge.

By the end of the meeting — which lasted up to an hour and a half — Herren had a signed fee agreement for $100,000.

George could not read the agreement — Herren had to point to the line where he should sign. She read him only the first two pages and summarized the rest. The agreement described her role as representing George in the "administration of [his] trust," though the stated purpose was to explore challenging the incapacity finding — a course of action that, as the court later found, represented "a complete divergence" from George's own estate plan. (109 Cal.App.5th at p. 431.) Days later, George said he had never met Herren. He was appalled that someone would ask him for that kind of money.

The question the Court of Appeal had to answer was not whether these facts looked troubling. It was whether they could give rise to an elder abuse restraining order at all — and whether a trustee could seek that order without first proving, in a separate proceeding, that the elder lacked legal capacity.

The First District said yes. On both counts.

For every trust and estate attorney who has considered taking on an elderly client, and for every trustee charged with protecting a vulnerable elder, Herren v. George S. redraws the line between legitimate engagement and financial elder abuse.

The Argument That Failed

Herren's lead argument on appeal was not frivolous, and it deserves to be stated fairly. Many attorneys would have made the same claim.

Probate Code section 810, subdivision (a) establishes a rebuttable presumption that all persons have the capacity to make decisions. Section 811 provides that a determination of incapacity must rest on evidence of a deficit in at least one enumerated mental function and a correlation between that deficit and the decision at issue. Herren argued that Susannah — George's daughter and successor cotrustee — could not seek a restraining order under the Elder Abuse Act without first rebutting this presumption of capacity. In essence: before you can claim someone was abused through undue influence, you must first prove the person lacked the capacity to make his own choices.

Several amici curiae made the same argument. Their concern was real: if the mere act of meeting with an elderly prospective client could be treated as elder abuse, attorneys would be chilled from serving an entire population of people who need legal help.

That concern deserves to be taken seriously. Trustees and attorneys alike should be troubled by any rule that discourages elderly people from retaining counsel.

But that is not what the court held.

No Capacity Prerequisite

The Court of Appeal reviewed the question de novo as a matter of statutory interpretation. (In re Dezi (2024) 16 Cal.5th 1112, 1128.) Its answer turned on the text of the Elder Abuse Act itself.

Start with the standing provision. The Act says a petition for an elder abuse restraining order "may be brought on behalf of an abused elder or dependent adult by a conservator or a trustee of the elder or dependent adult, an attorney-in-fact of an elder or dependent adult who acts within the authority of a power of attorney, a person appointed as a guardian ad litem for the elder or dependent adult, or other person legally authorized to seek the relief." (Welf. & Inst. Code, § 15657.03, subd. (a)(2)(A).) Nowhere in that language does the statute require a prior adjudication of incapacity. The Legislature listed who may file. It did not condition filing on a separate capacity proceeding. (109 Cal.App.5th at p. 425.)

Then the definition. Under Welfare and Institutions Code section 15610.70, subdivision (a), undue influence means "excessive persuasion that causes another person to act or refrain from acting by overcoming that person's free will and results in inequity." The first of the four factors courts must weigh is the victim's vulnerability — and the statute says evidence of vulnerability "may include, but is not limited to, incapacity." (Id., subd. (a)(1), italics added.)

That phrase — "may include, but is not limited to" — was the key analytical move. If incapacity were a prerequisite, the statute would say so. Instead, the Legislature made incapacity one permissive factor among many. A person can be vulnerable to undue influence without being legally incapacitated. That principle has stood for over a century: "'Soundness of mind and body does not imply immunity from undue influence.'" (Estate of Olson (1912) 19 Cal.App. 379, 386.) The court also cited the ABA/APA Assessment of Older Adults with Diminished Capacities (2d ed. 2021) at page 25, for the proposition that undue influence is a separate issue from capacity, though diminished capacity is a risk factor.

The Legislature's own declarations confirmed this reading. The Act states that "elders and dependent adults may be subjected to abuse, neglect, or abandonment" and that "mental and verbal limitations often leave them vulnerable to abuse and incapable of asking for help." (Welf. & Inst. Code, § 15600, subds. (a), (c).) Its purpose: "to enable interested persons to engage attorneys to take up the cause of abused elderly persons." (Id., subd. (i).) As the court in Estate of Lowrie (2004) 118 Cal.App.4th 220, 227, recognized, this language "suggests the Legislature intended a broad definition of standing in the context of elder abuse cases."

The holding is plain: a trustee or attorney-in-fact may seek an elder abuse restraining order on behalf of a vulnerable elder without first obtaining a court finding of incapacity.

Proving the Abuse: The Four Factors Applied

Standing to file is only half the battle. Susannah still had to prove that Herren committed financial elder abuse. Under the Act, financial abuse occurs when a person obtains "real or personal property of an elder or dependent adult by undue influence." (Welf. & Inst. Code, § 15610.30, subd. (a)(3).) Abuse may be found "when an elder or dependent adult is deprived of any property right, including by means of an agreement." (Id., subd. (c).)

The first question was whether a fee agreement is a "property right" at all. The court had little trouble here. "'The concept of property in California is extremely broad.'" (Estate of Sigourney (2001) 93 Cal.App.4th 593, 603.) A contractual right is "a chose in action, a form of property." (In re Marriage of Brown (1976) 15 Cal.3d 838, 845.) Courts have found property rights implicated where respondents restructured insurance policies with increased premiums (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 853–854, 861) and where an elder executed escrow instructions but never received title (Bounds v. Superior Court (2014) 229 Cal.App.4th 468, 472, 479–480). A $100,000 retainer agreement fits comfortably within this framework.

The court then examined the four factors of undue influence under Welfare and Institutions Code section 15610.70, subdivision (a)(1)–(4), reviewing the trial court's findings for substantial evidence. (Newman v. Casey (2024) 99 Cal.App.5th 359, 375; Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1134, 1137.)

Start with vulnerability. The record was stark. George was 86, with severe progressive dementia and macular degeneration that left him legally blind. He did not know whether his parents were alive. His short-term memory was "almost gone." Conversations about money distressed him. He was physically unstable, dependent on 24-hour care, and lonely. (109 Cal.App.5th at pp. 428–429.)

Into that vulnerability walked an attorney. Herren is a lawyer, and Gabriella introduced her to George as one — establishing apparent authority from the first moment. When the caregiver protested, Herren told her the conversation was "an attorney-client privileged conversation that you can't listen in on" and threatened the caregiver with an elder abuse charge. George witnessed every word. (Id. at pp. 429–430.)

The actions and tactics compounded from there. Herren knew George had a trust and that Susannah was cotrustee, yet she met with George while Susannah was out of town. She knew two doctors had found him incapacitated. She intentionally refrained from asking anyone for further information. The visit was not on George's calendar. She demanded the caregiver leave and threatened her. She did not read George the entire agreement. She had to point to the signature line. After the meeting, George looked drained, hungry, and tired, and he went to bed. Days later, he said he had never met Herren. (Id. at pp. 429–430.)

And the equity of the result spoke for itself. George's own trust named Susannah — not Gabriella — as successor cotrustee, and defined incapacity by reference to his treating physicians' declarations. His durable power of attorney gave Susannah broad authority to litigate on his behalf. The purported hiring of Herren to challenge the diagnosis of George's incapacity represented "a complete divergence from George's intent as expressed in his trust and DPOA, which were executed before his treating doctors authored letters stating he lacked capacity." (Id. at p. 431.)

Taken together, the four factors painted a picture the court found clear. In the court's words, "[t]his is not a situation in which a finding of elder financial abuse is predicated on the mere circumstance that an attorney met with a putative client who has diminished capacity." Rather, "the record contains ample evidence Herren committed financial abuse by exerting undue influence in meeting with George alone to secure his consent to legal representation and a $100,000 retainer fee, even though she knew he had been declared incompetent by two medical professionals." (109 Cal.App.5th at p. 431.)

What the Court Did Not Hold

The court drew a boundary. It acknowledged that "other cases with different facts may present the potential for tension between the interest in allowing attorneys to meet with and represent elderly people with diminished capacity, and the interest in protecting elders against the types of abusive conduct set out in the Elder Abuse Act." (109 Cal.App.5th at p. 431.) The court expressed confidence "in the ability of trial courts to carefully scrutinize the evidence presented by all sides." (Ibid.)

This is not a bright-line rule. It is a case-by-case standard. The facts here were egregious — the secrecy, the isolation, the known incapacity, the $100,000 retainer that contradicted the elder's own estate plan. Herren does not bar attorneys from serving elderly clients. But it gives trustees a powerful tool — one that works without a prior capacity adjudication — to protect vulnerable elders when an attorney crosses the line.

That tool has consequences for both sides.

What This Means for Attorneys

The engagement itself can be the abuse. Herren holds that the act of obtaining a fee agreement from a vulnerable elder constitutes financial elder abuse under Welfare and Institutions Code section 15610.30 if the agreement was procured through undue influence. The "property right" at stake is the retainer agreement itself. Attorneys who have always assumed that elder abuse requires something more dramatic — a property transfer, a change to a will — should reconsider.

Know what you are walking into. Herren knew, from documents Gabriella gave her, that two doctors had declared George incapacitated. She chose not to ask further questions. The court treated this deliberate lack of inquiry as part of the pattern of undue influence, not as a defense.

Do not isolate the elder from caregivers or fiduciaries. Herren met George while his trustee was out of town and without the caregivers' prior knowledge, then threatened the caregiver to get her out of the room. Each of those facts mapped directly onto the "actions or tactics" factor of section 15610.70.

Consider seeking court approval. Attorneys might seek court approval before engaging an elderly client in conservatorship or non-conservatorship settings. This may not be required, but it creates a contemporaneous record that the engagement was transparent and properly vetted.

Make sure the fee agreement matches the actual engagement. Herren's agreement described her role as representing George in the "administration of [his] trust," but the stated purpose was to explore challenging the incapacity finding. The gap between the written agreement and the alleged purpose undermined Herren's credibility and fed the equity-of-the-result factor.

Document your capacity assessment. Herren testified she had "no point of reference" for whether George was oriented to time, place, and situation. The court did not find that reassuring. If you are engaging an elderly client, document your assessment — and consider whether an independent evaluation is warranted before you proceed.

A published finding of elder abuse carries career consequences. Herren is a partially published opinion, and the finding of financial elder abuse by a named attorney is now part of the public record. The California Supreme Court denied review. The reputational and professional risks extend well beyond the restraining order itself.

What This Means for Trustees

If Herren chills attorneys from reckless engagement, it empowers trustees to act when an attorney crosses the line.

You have standing. If you are a trustee or attorney-in-fact for an elder, you may seek an elder abuse restraining order under Welfare and Institutions Code section 15657.03 without first obtaining a court finding of incapacity. The Act gives you the authority to act before the damage becomes irreversible.

Document vulnerability. The four-factor test under section 15610.70 gives you a roadmap. If your elder beneficiary shows signs of cognitive decline, isolation, or dependency, document it. Medical opinions, caregiver observations, and contemporaneous notes matter — they are the evidence a court will weigh.

Watch for the warning signs. Secrecy, isolation, haste, and a result that contradicts the elder's own estate plan. These are the same factors the court examined in Herren, and they are the factors courts will examine in the next case.

Act quickly. Susannah filed the petition five days after Herren's visit. The temporary restraining order kept Herren away from George while the case proceeded to a full evidentiary hearing. Speed matters when an elder is vulnerable.

A fee agreement is a property right. The court confirmed that a retainer agreement can constitute deprivation of a property right under section 15610.30. Trustees should be alert to any third party who obtains financial commitments from a vulnerable elder — whether the commitment takes the form of a contract, a fee agreement, or any other binding obligation.

Why This Ruling Is Surprising

Step back from the practice points. Most elder abuse restraining orders are not sought against attorneys. Most financial abuse claims under the Act involve caregivers, family members, or third parties who take property from a vulnerable elder. Herren v. George S. may be the first published California decision holding that the act of engaging a client — obtaining a fee agreement — can itself constitute elder financial abuse.

That alone makes this case worth reading carefully.

The Elder Abuse Act was not written with attorneys in mind. Its legislative declarations speak of elders "subjected to abuse, neglect, or abandonment" and of "mental and verbal limitations" that leave them "incapable of asking for help." (Welf. & Inst. Code, § 15600, subds. (a), (c).) The Act was designed to protect a vulnerable population from exploitation. The court in Herren applied that framework to an attorney engagement — and concluded that the same four-factor undue-influence test that courts use against lay exploiters applies with equal force when the person obtaining the property right is a licensed attorney.

That is a significant extension of how most practitioners understood the Act. The trust in this case had its own mechanism for addressing capacity disputes — a provision allowing any trustee or beneficiary to petition the court. Herren argued this provision showed that the proper avenue was a judicial capacity determination, not an elder abuse restraining order. The court rejected that argument. The implications for practitioners who serve elderly clients are real, and they are immediate.

The court acknowledged the tension. It said that "other cases with different facts may present the potential for tension between the interest in allowing attorneys to meet with and represent elderly people with diminished capacity, and the interest in protecting elders against the types of abusive conduct set out in the Elder Abuse Act." (109 Cal.App.5th at p. 431.) It expressed confidence "in the ability of trial courts to carefully scrutinize the evidence presented by all sides." (Ibid.) But it did not draw a bright line. The standard is case-by-case, fact-by-fact — and the facts in Herren were extreme.

What remains to be seen is how trial courts apply this ruling to less extreme facts. Herren involved secrecy, a known incapacity finding, isolation of the elder from his caregiver, and a $100,000 retainer that contradicted the elder's own estate plan. The next case will not look like this one. The question for every practitioner — attorney and trustee alike — is where the line falls when the facts are closer to the boundary.

But this case was not close to the boundary. George S. said he had never met Herren. He mentioned something about a $100,000 "bill for work" but could not remember what kind of work. He was appalled that someone would ask him for that amount of money. (109 Cal.App.5th at pp. 420, 430.) His trustee-daughter filed the petition five days later. The Elder Abuse Act gave her the standing to do it without first adjudicating George's capacity — and the court found substantial evidence that the abuse had occurred.

Watson Law Group, APC represents trustees and fiduciaries in trust and estate litigation across California. If you have questions about the implications of Herren v. George S. for your practice or your fiduciary duties — or if you need to evaluate whether an elder abuse restraining order is appropriate to protect a vulnerable beneficiary — contact us.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Every trust dispute and elder abuse matter involves unique facts and circumstances. If you are facing questions about elder abuse restraining orders, trustee standing, or the protection of a vulnerable elder, you should consult with a qualified attorney licensed in your jurisdiction.

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