This document discusses estate planning considerations for attorneys, including: - Setting up powers of attorney, trusts, and beneficiary designations to allow access to accounts and assets if the attorney becomes incapacitated or dies. - Nominating a practice administrator to take control of client files, trust accounts, and other practice assets and liabilities. - Ensuring client matters are properly handled and concluded and that the practice administrator is properly appointed and compensated in such situations. - Addressing statute of limitations and notice requirements for malpractice claims against an incapacitated or deceased attorney.

1. INCAPACITY, DEATH,
AND THE PRACTICE OF
LAW
Mina N. Sirkin
SIRKIN LAW GROUP, P.C.
21550 Oxnard St. #300, Woodland Hills, CA 91367
818-340-4479
Probate Attorney Los Angeles
Copyright2016MinaSirkin

2. Basics
• Wills
• Trusts
• Power of Attorneys for Asset Management
• Power of Attorney for Health Care
• Assignments to Trust
• Transfer of Real Estate
• Nomination of Practice Administrator
• Nomination of Conservator of Person / Estate
Copyright2016MinaSirkin

3. Special Problems with Access
to Attorneys’ Accounts
1.General Account of a Law Corporation: Needs a signer on
the Account (Coordinate Trust and Corporate Power of
Attorney to cover these)
2.General Account of a Sole Proprietor: Needs a signer on the
account and an assignment to the trust. (Coordinate Trust
and Power of Attorney to cover these)
Attorney-Client Trust Accounts:
• Attorney-Client Trust Accounts need a Practice
Administrator Nomination in Estate Planning Documents for
someone to be able to access them upon incapacity or death
of the attorney
• Non-licensed Spouse cannot access Attorney-Client Trust
Accounts
Copyright2016MinaSirkin

4. Asset Based Planning
• IRA Accounts:
• 401k
• Life Insurance (Unless in a Trust)
• Beneficiary Designations
Second or Third Spouse Issues:
• Beneficiaries of all accounts and insurances need to be
checked
• Prior Dissolution Orders should be visited
Copyright2016MinaSirkin

5. Practice Administrator
• Protects in Incapacity and at death
• May be nominated by in a writing (Will/Trust/Power of
Attorney/ PLUS stand-alone nomination)
• The process of appointment involves a Petition to appoint a
Licensed Person as Practice Administrator to take control of
files and assets (Probate code 9764)
• Must specify value of of the assets
• Requires a bond
• The Practice Administrator cannot be the attorney
representing the personal representative or trustee in the
administration
Copyright2016MinaSirkin

6. Duties of the Practice
Administrator
• B&P 6185
• Take control of all operating and client trust accounts,
business assets, equipment, directories, and premises
• Of Deceased or Disabled Bar Member
• Take Control and Review Files
• Contact Each Client and Discuss options
• Contact Opposing Counsel and ask for time for new counsel
• Determine Liabilities of Practice and pay them from the assets
of the practice. If insufficient, ask the estate administrator for
additional funds, or ask the court for an order
• Employ any person necessary to assist
Copyright2016MinaSirkin

7. More
• Create a plan of disposition
• Sell the practice subject to approval of personal
representative
• Reach agreements with successor counsel, subject to approval
of the personal representative, for division of fees for work in
progress
• May act as successor counsel
• May ask for Instructions from the Court
Copyright2016MinaSirkin

8. Logistics
• Corporation Attorney Client Trust Accounts require an order
appointing the Practice Administrator to access the account
• Order must specify the name of the corporation and the name
of the practice administrator who can access
• The practice administrator must still obtain permission of
personal representative, unless waived in the order
Copyright2016MinaSirkin

9. How is the Practice
Administrator Paid?
• From the assets of the practice, with a court order
• If not sufficient, paid from the estate or trust, with a court
order.
• PROBLEMS:
• Insufficient assets
• Maintaining the malpractice insurance
Copyright2016MinaSirkin

10. Decedent Estate Malpractice
Statute of Limitation
• Latest: 1 Year from the date of death even if no probate or
trust
• Or 4 months from the date of Letters Testamentary/Letters of
Administration
• Or 4 months from the date of publication by trustee, if
Trustee published a notification
• Late Discovered claims must apply to the court, but still
subject to the time bar
• Claims against the deceased member: Creditor must file a
claim
• Practice Administrator must communicate with the personal
representative so he/she can give notice to the creditors
Copyright2016MinaSirkin

11. Incapacity & Malpractice
•The statute of limitations on claims against a lawyer in California is either 1
or 4 years if the claim arises out of a civil matter. California Code of Civil
Procedure section 340.6.
HOWEVER: Plaintiffs can sue later, if:
(1) The plaintiff has not sustained actual injury. (2) The attorney continues to
Copyright2016MinaSirkin

12. Have Questions?
Mina N. Sirkin, Esq.
Board Certified Specialist, Estate Planning Probate & Trust Law
SIRKIN LAW GROUP, P.C.
21550 Oxnard St. #300
Woodland Hills, CA 91367
(818)340-4479
Email: MSirkin@SirkinLaw.com
Los Angeles Probate Lawyer
Copyright2016MinaSirkin