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Legal Malpractice- Estate Law

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Georgia
An attorney helps amend a woman's will and trust. This woman had a previous diagnosis of advanced dementia and is now dead. The attorney was NOT informed of this by the adult son who arranged for this attorney. Subsequently, roughly a month after this woman's trust and will was amended, this woman is declared mentally retarded by two MD's, scores an 11 on her MMSE (Mini State Mental Exam), and is placed in a memory care ward. After the woman's death, the other surviving child of this woman finds out about the amendments. This attorney is then retained by the adult son who failed to inform the attorney his mother was in advanced dementia. The attorney client relationship ends quickly and the adult son is now represented by another attorney. What do you think the chances of success are of a legal malpractice claim against this attorney? Thank you for any advice or insight you may have.
 


Just Blue

Senior Member
Georgia
An attorney helps amend a woman's will and trust. This woman had a previous diagnosis of advanced dementia and is now dead. The attorney was NOT informed of this by the adult son who arranged for this attorney. Subsequently, roughly a month after this woman's trust and will was amended, this woman is declared mentally retarded by two MD's, scores an 11 on her MMSE (Mini State Mental Exam), and is placed in a memory care ward. After the woman's death, the other surviving child of this woman finds out about the amendments. This attorney is then retained by the adult son who failed to inform the attorney his mother was in advanced dementia. The attorney client relationship ends quickly and the adult son is now represented by another attorney. What do you think the chances of success are of a legal malpractice claim against this attorney? Thank you for any advice or insight you may have.
Is this a real situation? If so, who are you in all this?
 
Yes, this is a real situation. I am the adult child of the sibling that was excluded as a result of the amendments. I am my parent's agent for both their Probate and Superior Court cases against the brother that did this to my elderly parent.
 

quincy

Senior Member
Georgia
... What do you think the chances of success are of a legal malpractice claim against this attorney? Thank you for any advice or insight you may have.
How long ago did all of this happen?

It is difficult to predict with any sort of certainty the chances of success of any lawsuit, but it is especially difficult when few facts are known. One of the attorneys involved currently with the matter is in a better position to give you odds.
 
How long ago did all of this happen?

It is difficult to predict with any sort of certainty the chances of success of any lawsuit, but it is especially difficult when few facts are known. One of the attorneys involved currently with the matter is in a better position to give you odds.


The amendments were done by this attorney in late 2019. I will ask my father's attorneys what our chances are. I've been reluctant to ask because suing an attorney is a touchy subject and because they don't do legal malpractice law.
 

quincy

Senior Member
Good attorneys don’t like bad attorneys any more than the bad attorneys’ clients do, so you shouldn’t be reluctant to discuss attorney-malpractice with a lawyer. You should be able to get an initial consultation for free with a lawyer who can perhaps give you an idea of where your parent would stand legally in a claim against the brother or brother’s attorney.

Your parent or attorney will need copies of the deceased woman’s medical and mental health records.
 
Thank you for your time. I appreciate it. I wouldn't even be thinking about going after this attorney if not for the predatory way the trust was written: allowing my grandmother to continue to financially care for those "dependent" on her during her lifetime. Have a nice rest of your night.
 

quincy

Senior Member
Thank you for your time. I appreciate it. I wouldn't even be thinking about going after this attorney if not for the predatory way the trust was written: allowing my grandmother to continue to financially care for those "dependent" on her during her lifetime. Have a nice rest of your night.
With very few exceptions, legal malpractice claims will start with the existence of an attorney-client relationship. Although your parent did not have an attorney-client relationship with the brother’s attorney, your parent might fall into one of the exceptions, making a legal action possible against both the attorney and also against the brother.

You have a good night as well, Angela. I appreciate the thanks.
 

Taxing Matters

Overtaxed Member
What do you think the chances of success are of a legal malpractice claim against this attorney? Thank you for any advice or insight you may have.

What would the basis for the malpractice claim be? And what would be the damages? The only issue I see being raised here is that the client — your grandmother — was likely incompetent at the time she executed the amendments. And it seems that it is the amendments that you and your parent are unhappy with. So as a starting point, there would seem to be a good claim to make here to contest the amendments and get them tossed out due to your grandmother being incompetent at the time she signed them. That would seem to be more straightforward and easier than trying to go after her lawyer for malpractice.

The lawyer should not have done the amendments for her if he knew her to be legally incompetent at the time. Your uncle (at least I think it was your uncle, your post isn't entirely clear on that) hid that fact from the lawyer. So you'd need evidence that the lawyer otherwise knew that she was legally incompetent if the basis of the legal malpractice claim is based on him drafting documents for someone who was incompetent. Have you any evidence on that?

Note too that generally legal malpractice claims are claims made by the client against the lawyer for legal advice/representation that fell below the minimum standard of the legal profession. The client here is your mother, apparently, and thus as a starting point the malpractice claim would likely lie with her estate. There may be case law in Georgia that would let heirs/beneficiaries sue for malpractice in certain instances, but I've not checked for that and what limitations there may be.

You also have to show damages from the malpractice. If the problem created by the amendments can be remedied by simply contesting them and getting them invalidated then there would seem to be no damages to pursue.

See a lawyer who does legal malpractice cases in Georgia for advice on the legal malpractice angle and to what extent it may be worth pursuing when taking into account a possible contest of the amendments.
 

Zigner

Senior Member, Non-Attorney
I am my parent's agent for both their Probate and Superior Court cases against the brother that did this to my elderly parent.
What, exactly, does this mean? If you are not an attorney, you cannot represent your parents in court. I think you need to tread very carefully in this arena.
 

Taxing Matters

Overtaxed Member
If the grandmother was even only lucid for a short time during the creating and signing of the amendments, the new will could be judged valid. Proving the grandmother wasn’t lucid could be difficult.

While true, in this case the grandmother was evidently examined by two doctors just 10 days after signing the amendments and found to be considerably memory impaired and placed into a memory care unit. If her condition as determined by the doctors was enough to meet the definition of legal incompetence and considered unlikely to have lucid moments that testimony by those doctors would likely be very compelling. It's not often you get such a good set up for a challenge to competency of having relevant examinations done so close to the execution of a will or trust.
 

zddoodah

Active Member
An attorney helps amend a woman's will and trust. This woman had a previous diagnosis of advanced dementia

Previous to what? Previous to the attorney working with the woman? When did all this occur?

Subsequently, roughly a month after this woman's trust and will was amended, this woman is declared mentally retarded by two MD's

I doubt very much that, in 2021, any medical doctor would "declare" a person to be "mentally retarded."

After the woman's death

Which occurred when?

This attorney is then retained by the adult son who failed to inform the attorney his mother was in advanced dementia.

We're talking about the same attorney who prepared the will/trust amendments? For what purpose did the son retain the attorney?

the adult son is now represented by another attorney.

Represented for what purpose?

What do you think the chances of success are of a legal malpractice claim against this attorney?

A malpractice claim by whom and for what? In the overwhelming majority of cases, the only person with standing to sue an attorney for malpractice is the attorney's client, and a malpractice claim requires that the plaintiff plead and prove that the attorney failed to exercise a degree of care commensurate with that of a reasonable attorney in the area where the attorney practices. You haven't given any reason at all to believe this attorney did that, so what malpractice do you think this attorney may have committed?

I am the adult child of the sibling that was excluded as a result of the amendments.

So...you're a grandchild of the deceased woman whose will and trust were amended? And the person to whom you referred as "adult son" is your uncle and your mother or father's brother?

I am my parent's agent for both their Probate and Superior Court cases against the brother that did this to my elderly parent.

Parent's agent or parents' agent? Your writing bounces back and forth between singular and plural, so it's impossible to tell. Do you mean that your parent(s) executed a power (or powers) of attorney that allow(s) you to control the litigation? What is the nature of the "probate and superior court cases"? What do you contend that your uncle "did . . . to [your] elderly parent"?

the predatory way the trust was written: allowing my grandmother to continue to financially care for those "dependent" on her during her lifetime.

I don't understand how a trust "allowing [your] grandmother to continue" caring for dependents can be considered "predatory."
 

Just Blue

Senior Member
Previous to what? Previous to the attorney working with the woman? When did all this occur?






Which occurred when?



We're talking about the same attorney who prepared the will/trust amendments? For what purpose did the son retain the attorney?



Represented for what purpose?



A malpractice claim by whom and for what? In the overwhelming majority of cases, the only person with standing to sue an attorney for malpractice is the attorney's client, and a malpractice claim requires that the plaintiff plead and prove that the attorney failed to exercise a degree of care commensurate with that of a reasonable attorney in the area where the attorney practices. You haven't given any reason at all to believe this attorney did that, so what malpractice do you think this attorney may have committed?



So...you're a grandchild of the deceased woman whose will and trust were amended? And the person to whom you referred as "adult son" is your uncle and your mother or father's brother?



Parent's agent or parents' agent? Your writing bounces back and forth between singular and plural, so it's impossible to tell. Do you mean that your parent(s) executed a power (or powers) of attorney that allow(s) you to control the litigation? What is the nature of the "probate and superior court cases"? What do you contend that your uncle "did . . . to [your] elderly parent"?



I don't understand how a trust "allowing [your] grandmother to continue" caring for dependents can be considered "predatory."
:cool:
 
Georgia
An attorney helps amend a woman's will and trust. This woman had a previous diagnosis of advanced dementia and is now dead. The attorney was NOT informed of this by the adult son who arranged for this attorney. Subsequently, roughly a month after this woman's trust and will was amended, this woman is declared mentally retarded by two MD's, scores an 11 on her MMSE (Mini State Mental Exam), and is placed in a memory care ward. After the woman's death, the other surviving child of this woman finds out about the amendments. This attorney is then retained by the adult son who failed to inform the attorney his mother was in advanced dementia. The attorney client relationship ends quickly and the adult son is now represented by another attorney. What do you think the chances of success are of a legal malpractice claim against this attorney? Thank you for any advice or insight you may have.

Hi there. There appears to be a ton of responses to my thread since late last night. I went with Quincy's advice and actually called up my parent's attorney. They believe the chances are good of a legal malpractice lawsuit against this attorney and are going to refer us to an attorney. Simply because I asked and people have taken the time to respond to me: 1.) I am not a lawyer nor do I claim in any way to be. For the non lawyers on here, it simply means my parent has given me control over the litigation by making me their agent. 2.) My grandmother WAS declared mentally retarded by two MD's who signed off attesting to the fact that she required the level of care to that extent in order to get her in a memory care unit. The timing was coincidental. My grandmother suffered a fall and was removed from my uncle's care to be hospitalized. While there, they did the MMSE on her after several incidents where she was found to be playing with feces sadly. 3.) For the lawyers on here inquiring about damages, we're honestly not entirely sure. It's very complicated because we're having to pursue the trust amendment in superior court which will take time for discovery to reveal everything my uncle has done. I do know that as a result of this attorney helping my grandmother give my uncle Durable POA over her, he was able to contact them and cash her out of two annuity policies worth just a little over $460k alone of which my parent was an equal beneficiary of if that helps your analysis of this potential case of not. Thank you for your time. I wasn't expecting all these subsequent replies but felt I should give you more details because you took the time to reply back to me.
 

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