California Elder Legal Questions

If she has an existing estate plan, then it should name a conservator and a successor conservator for her in the event that one is required.  There are two types of conservatorships: of the person (health matters) and of the estate (financial matters).  The same person can be the conservator of the person and of the estate.  A petition for conservatorship is filed in the probate court where she resides.... Read More

California law presumes people to be competent, unless proven otherwise.  And even if someone is only intermittently incompetent, they are presumed to have been competent at the time of signing any documents.  So what do you have to prove that he is incompetent? A durable power of attorney may not be the proper document that you need to make financial decisions for your dad.  You could also become his conservator.  A conservatorship proceeding is brought in the probate court and a judge has to appoint you as the conservator.  That's better than a durable power of attorney in this situation.... Read More

You can sue in small claims court for up to $10,000.   First, write a demand letter asking that you be paid for what you are owed.  Here is a link from the courts to write a demand letter: http://www.courts.ca.gov/11145.htm   Second, file a complaint in small claims court.  Here is a link that may help you: http://www.courts.ca.gov/selfhelp-smallclaims.htm... Read More

Sometimes a trust will have a provision that explains what needs to be done to make the determination, but if it doesn't you may need to get a court to make that determination. If your mom is making bad judgments and you do not believe that she can properly handle her affairs you may want to consider filing for a conservatorship as well. Thanks,Jon... Read More

Hi Gustavo, If you believe that your parent's are at risk from your brother you may want to consider filing for a conservatorship. If a conservatorship would certainly prevent your parents from being taken advantage of and the court that oversees the conservatorship would look out for your parent's best interests. On a daily basis though you and/or one of your other siblings would have control over your parents and there finances and could ensure that they were taken care of appropriately. Please contact me should you want to discuss your options. Thanks,Jon... Read More

It is possible if the existing trust allows the agent to amend and the power of attorney grants him the power. Much less likely that the power would give him authority to create the trust, but possible. If your father was already ill all docs and any changes to the trust may very well be set aside. I have handled many cases involving these types of issues and one recently in which my client did amend the trust using a power of attorney. If you think that your sister has questionable intentions it might be wise to retain an attorney. A letter from an attorney putting her on notice may be enough to keep her from attempting to amend your father's trust. Thanks,Jon    ... Read More

Anonymous- Not surprisingly, fees will vary greatly and there's no concrete way to answer your question.  However, some thoughts to keep in mind: Fees are typically set either by the hour or by the project; when it comes to estate planning/ document preparation, a fixed fee for a basic plan seems to have become the standard; Fees are negotiable; A significant amount of the language in an estate plan is essentially boilerplate, based on case law or statutory requirements.  This benefits you as the consumer because the use of commonly defined and understood terms and structures will make the document(s) more understandable if/when questions are raised; Thus, what you're really paying for is the attorney's experience and ability to translate your wishes into legal terms that achieve your goals; You should be prepared to provide fairly detailed financial and personal information to the attorney, leaving this out is only asking for trouble; Depending on the nature of your assets, you may not need a full plan and may be able to distribute your estate without going through probate; Depending again on your assets/ liabilities and comfort level, there are a number of online legal services available, as well as a basic Will form on the California Bar website (www.calbar.ca.gov); I have had a number of clients prepare these documents on their own and then pay me for an hour or two of my time to review/ comment/ revise as necessary. Finally, although it's not related to fees per se, I offer the following thought: out of all of the estate planning documents I prepare, the Advance Healthcare Directive/ Power of Attorney/ Living Will is the most important and I encourage my clients to spend the most time on it.  Why? Your Will is not triggered (if at all) until you have died; Your Trust is a living document that may (usually) be changed at any time; Your Financial (Durable) Power of Attorney- it's only money; but your Healthcare Directive activates when you're still alive and life or death decisions must be made.  As such, it's not only an "instruction" sheet, it's a guide to help those you care for understand and accept the outcomes of their decisions. Best regards,... Read More

Normally a copy is as valid as the original as long as: The document states a copy is valid, and The copy is "complete"- i.e. all the pages are attached/ no blank spaces/ etc. Further, in CA, depending on when/ where the advance directive was signed by your mother, it should have either been notarized (Acknowledgement) or notarized and witnessed (if it was signed while your mother was in a care facility- they should have a patient ombudsman who routinely performs this duty).  For more information, you may want to contact the California Medical Association or visit their website - www.cmanet.org  Depending on your situation, you may also want to speak with her primary care doctor to see if they have a copy. Assuming your mother is legally competent (aware and able to understand the nature of the act she is performing/ document she is executing), you may just want to get a new directive. Finally, please keep in mind that the advance Directive is as much for the signer (your mother) as the one(s) designated to make the decisions on her behalf.  To that end, I strongly encourage you to communicate with other family members/ siblings/ etc. who might otherwise expect to have some say in the situation- keeping everyone on the same page generally helps minimize the additional stress of intra-family squabbles during what is already a very stressful time. Best of luck.... Read More

The answer is yes, anyone can sue but you won't get anywhere on this.  There is no obligation for a child to support his or her parent under California law.  Sorry.  Withdrawal of affection does not constitute elder abuse in CA.   However, depending upon the facts vandalizing your mother in law's property might be.  What exactly did he do?  Sharon Miller slmillerlaw@verizon.net  ... Read More

While you may have a case, the real question is does your grandson have the money to pay the charges?  Also i he did not sign anything confirming he owes you the money you are probably out of luck.   However, if he has money to pay it is a different story.  How much was the major purchase?   You also have a problem because he is living in Texas.  This makes litigation very expensive.    Sharon Miller slmillerlaw@verizon.net... Read More

You may want to contact your local Adult Protective Services or Department of Children and Families. Either entity can start an investigation into the elder's self-neglect. You should seek out an attorney who practices in the field of guardianship. He or she can help you become guardian of the elder. As guardian, you would be able to move your relative to an assisted living facility.  ... Read More

If your Dad is unable to make decisions, you will have to file with  the court for Temporary Conservatorship papers with the help of his physician.  After that, you may proceed with the full Conservatorship.  Your probably should apply for both Conservatorship of the Person and Estate.  Good luck.  ... Read More