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CONSERVATORSHIPS | LOS ANGELES ATTORNEY | CONSERVATORSHIP SIRKIN LAW
Los Angeles, Glendale, Woodland Hills, Pasadena
What is a Conservatorship? A Conservatorship is a legally created relationship where an adult (usually a parent or a child ) is given the legal authority and responsibility to care for another adult authorized by a court. The attorneys and lawyers at Sirkin Law Group, have helped establish Conservatorships for over 22 years, and can assist you with the conservatorship process in Los Angeles County.
WHO USUALLY FILES CONSERVATORSHIPS?
1. Children with aging or disabled parents file them to care for their parents.
2. Parents of special needs children file them when the child turns 18 or is over 18 years of age to be able to make decisions for their special needs child.
Types of Conservatorship:
Conservatorships are created in the Los Angeles County probate court and have three basic types:
1) Conservatorship of the person;
2) Conservatorship of the Estate; and
3) Conservatorship of person and estate.
GENERAL CATEGORIES OF CONSERVATORSHIPS IN CALIFORNIA
1. Probate Conservatorship.
2. Developmentally Disabled Conservatorship (called a Limited Conservatorship)
3. LPS Conservatorship (Mental Health). LPS conservatorships can only be initiated by the Pubic Guardian or the Hospital.
LEARN ABOUT ALTERNATIVES TO CONSERVATORSHIPS IN CALIFORNIA:
1. Getting a Professional Fiduciary.
2. getting informal help from family.
3. making a trusted person an agent in a power of attorney.
4. naming an "attorney in fact" or agent in a power of attorney on a specific account.
5. specifically making a spouse, or another person a representative payee of your social security.
6. having an advance health care directive.
7. When signing a power of attorney, limiting it so that the agent cannot gift to himself/herself.
8. estate planning and creatinga a revocable living trust.
9. Creating an irrevocable trust for asset protection purposes, to prevent yourself from giving away your assets, if you become influenced by another person, later in your life.
10. an estate management contract.
DO YOU HAVE THE RIGHT TO FILE FOR A CONSERVATORSHIP?
Generally, spouses, parents, children, relatives, friends, the public guardian, and professional fiduciaries can file for conservatorship. Spouses are given priority over others. A parent can file for conservatorship of a child. A child may file to conserve his or her parent.
If there are several persons who have filed, the case then is litigated and may include competing petitions for conservatorship requesting that each petitioner becomes the conservator. The court will will hold a hearing and decide who shall become the conservator. This type of hearing can be short or a full trial. Preference rules exist in California for making such a determination as to who has priority in appointments. Contested Conservatorship proceedings can take long and may result in trials.
WHO CANNOT BECOME A CONSERVATOR?
Generally, a creditor of the conservatee cannot become the conservator of the estate of the conservatee. Also, if a spouse is involved in a divorce proceeding, the spouse does not get priority and the court looks to see if it is even in the best interest of the conservatee to appoint the spouse. Also, if the Court orders a bond and the petitioner is not bondable, and the nature of the assets do not allow for a blocked account, then petitioner cannot become the conservator.
In situations like the above, a private professional fiduciary is most often suitable as a conservator.
HOW LONG DOES THE CONSERVATORSHIP LAST?
A conservatorship is life long process, must continue until the court orders the conservator relieved from his or her duties. This can happen if the conservatee dies, if the estate is used up, if the conservatee regains his or her capacity, or if the conservator becomes unable or unwilling to act.
In the last situation, the court will assign a successor conservator. If the Conservator dies, the Conservator of the estate still remains until he/she finishes his/her accounting. Read more about Conservatorship Accountings here.
Conservatorships are time consuming and expensive. They should only be used when absolutely necessary.
Candidates for conservatorships are usually disabled or elderly. Some conservatees may have Alzheimer's disease, dementia, Parkinson's, Huntington's disease, autism, or other diseases. Before 1980, many conservatees simply had the diagnosis of mental retardation. Once a Conservators is appointed, the Conservator can ask the Court for permission to do Medi-Cal planning for the Conservatee including substituted judgment petitions to protect the assets from Medi-Cal, and to purchase or sell property of the Conservatee.
HOW DOES THE COURT PROTECT THE ELDERLY AND DISABLED WITH A CONSERVATORSHIP?
Conservatorship proceedings and actions of conservators are court supervised. The Court requires that each Conservator of the estate post a Conservatorship bond for certain assets.
Family members are given notice of the proceeding and financial records of the conservatee are summarized in an accounting filed with the court. If the conservatee's residence is to be changed, parties will receive notice.
When a Conservatee needs psychiatric (called psychotropic medications) medications, the Court reviews a doctor's declaration regarding the need for the medication and makes the appropriate medication orders. The ability of the Conservator to administer dementia medication depends on the court's approval of administering such medication.
When a Conservator wants to sell real property or purchase real property, the court must give permission for such a transaction, especially when it involves moving the Conservatee from his or her home. Conservators must obtain an order to confirm the sale of real property from the court.
A PVP attorney (court appointed attorney) is sometimes appointed for the Conservatee. The role of this type of attorney is to advocate the wishes of the proposed conservatee when there is litigation, or when rights of the Conservatee are affected.
California Conservatorship Process:
Conservatorship proceedings usually start when a person is so incapacitated that he or she cannot manage his/her own affairs. The person who is the caretaker is called the conservator, and the person who is being taken care of is called the conservatee. Caregivers and Conservators can be different people. A conservator can hire caregivers and does not have to do caregiving.
The conservatorship proceeding begins with a petition filed with the court, followed by an investigation by a court investigator and a Conservatorship court hearing. Many factors can affect a conservatorship. For example, if the conservatee objects to the conservator's appointment, he or she may object and the court will assign counsel for the conservatee for that purpose.
A conservator of the estate is required to provide accountings that give details of the conservatee's assets, income and expenses, showing exactly how the conservatee's money was spent. Additionally, the court will require that the conservator of the estate to post a bond. The conservator is paid by the conservatee's estate and the court supervises the reasonableness of the payments to the conservator.
ARE POWER OF ATTORNEY DOCUMENTS ALTERNATIVES TO CONSERVATORSHIPS AND ARE THEY APPROPRIATE OR AVAILABLE?
While a valid power of attorney document can authorize the power of attorney holder to accomplish certain tasks of a conservator, a power of attorney cannot prevent the ill person from contracting, conveying property or marrying. For example, a patient with Alzheimer's disease may become subject to fraud or undue influence by unscrupulous persons.
While he or she could have given a valid power of attorney while he or she was well, he or she may be befriended, may marry, and convey his or her property to a new spouse. In that situation, the probate code provides that a conservatorship may be established, and the conservator may ask the court to set aside any contract entered into by the ill conservatee. Second and third marriages are common in California. The right to marry is one that the Conservatee retains unless the court terminates it with an order.
The advantage of the conservatorship is that it can safeguard against fraud or undue influence by a third party against the ill person. Conservatorships can get costly when there is litigation involved. Persons filing for conservatorship should consider the costs before filing.
What is a Contested Conservatorship or Conservatorship Litigation matter?
Contested Conservatorship (competing petitions) and conservatorship litigation can involve any of the following situations:
1. Objections to the initial appointment of a particular person as a conservator. Filing any objection to a conservatorship.
2. Removal of a Conservator for cause.
3. Actions requesting appointment of a successor conservator to which others object.
4. Disputes involving contested conservatorship accountings. These include formal objections to accounting by the conservator.
5. Determination of a undue influence on an elderly or disabled person. Elder abuse actions can be brought in conservatorship cases.
6. Objections to Proposed Actions by Conservator including substituted judgment actions and trusts.
7. Family mediations in determining the best conservator.
8. Requests to terminate a conservatorship or modify powers in a conservatorship.
9. Determination of rights to assets and disputes relating to ownership and title.
10. Conservatorship trials.
Many times, appointment of a professional fiduciary or professional conservator in Los Angeles, can curtail the expense of a litigated conservatorship. If you need a referral to a professional fiduciary or would like an introduction to professional conservators, please call us. Probate Conservatorships can be complex. Call us for individual conservatorship advice.
Call us at 818-340-4479 for more information on conservatorship and contested conservatorship and conservatorship litigation matters. Los Angeles Conservatorship Attorney.
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