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Newport Beach Estate Litigation Law Blog

Conservatorship in California for disabled loved one

There is nothing you wouldn't do for your loved ones. That's why when looking into how to make their transition from child to adult easier, you don't hesitate to look at all the options. If you have a child or loved one who is disabled in some way, you may be wondering what their path may look like as they move into adulthood. If they are semi-self-sufficient, you may be looking at a way to allow them to be more independent.

A conservatorship can help to make this dream a reality for a disabled loved one. A limited conservatorship is a court proceeding in which a judge may give a responsible person (such as the disabled's parent or caretaker), called a limited conservator, certain rights to care for another adult. This adult has some type of who has a developmental disability that prohibits them from living a totally normal life, but this conservatorship would grant them more independence, albeit supervised independence.

Financial elder abuse isn't acceptable

Elders can require care and attention at a certain point in their life. This can happen gradually over time, or suddenly in one single event, such as after an injury or illness. Often, family members suddenly realize that their relative is no longer able to account for their finances and independence like they once could. This can be an extremely emotional experience for everyone involved, and it can have serious financial consequences.

Sadly, sometimes families don't realize that the elder person has reached this state until they discover that someone has been financially abusing the senior.

Are you alleging that there has been negligence by a trustee?

Being a person who is affected by, or has an impact on, a trust, will or other estate plan can be a blessing or a burden. Oftentimes, there are multiple parties involved in the estate plan, will or trust administration. Not always do these people see eye-to-eye. It's possible that someone involved in the will, trust or estate plan does not do as intended.

If actions are negligent in terms of the contract agreement, the law or other governing agreement, one could allege negligence by a trustee, executor or conservator. In doing so, one would seek to potentially overthrow that person's access to the administration of the estate plan or to have them pay for damages incurred to a beneficiary or the estate, trust or will itself. Most often, people want to see negligent conservators removed from a position of power in terms of the estate, trust or will.

Trust contention by disinherited person to see Supreme Court

When a loved one or a family member passes away there can be a swirl of activity concerning their trust, will or status of their estate. The process can be seemingly cut and dried if the person left a valid will, trust doctrine or estate plan. However, even with these documents in place, it can still leave some questions as to the details of the trust administration or other estate plan or will. The California Supreme Court has agreed to hear the final appeal on the issue of trust contention and a disinherited person's ability to contest.

Trust and probate litigation can be a very two-sided issue. Usually a party either wishes to contest and another party wishes that they wouldn't contest. Depending on the details of the trust plan or other document, there could be grounds for contention. To contest a will would be to claim that the language, content or administration of such is otherwise invalid, or incorrect. The California Supreme court will decide if in Barefoot v. Jennings, if a disinherited person has the ability to contest a trust amendment.

Understanding methods of avoiding probate

Because the probate process can be costly and time consuming, most families generally wish to avoid the process. Because of this, it is helpful to be familiar with some methods available that may help families avoid probate. The overall estate planning and probate process is essential for estate planners and families to be familiar with.

One method of potentially avoiding the probate process is joint ownership of property. Jointly owned property with the right of survivorship allows property to be taken as joint tenants. When one of the joint tenants dies, the surviving tenant takes the deceased party's portion of the property. There are several different forms of joint property with rights of survivorship including joint tenancy, tenancy by the entirety or community property. Each type can be set up through a written document.

Do you know these common myths about estate planning?

Because many people do not want to think about the prospect of their or their loved one’s death, they avoid thinking about estate planning. However, this leads to many misconceptions about the topic. Planning your or your loved one’s estate is crucial to ensuring that an estate goes to the desired recipients. The more you know about estate planning, the better. Here, we will address several common falsehoods about the subject.

  • I’m not elderly—I don’t need an estate plan

Options to avoid probate can be helpful to understand

The probate process can be costly and time consuming. As a result, family members and estate planners may want to be familiar with potential methods to avoid probate.

To begin with, it is helpful in the first place to be knowledgeable about what to watch for and potential problems that can pop up when estate planning and executing estate planning documents. Otherwise, there are a variety of different methods that may help families avoid the financial and time-related costs associated with the probate process. One option is a simplified form of probate that can be initiated through a spousal property petition that transfers assets from a deceased spouse to a surviving spouse. If one spouse has given away community assets then a community property claims dispute may also be made.

Understanding financial elder abuse

Financial exploitation of elder people in California and across the nation is a serious issue. Financial elder abuse is especially a concern for older individuals who suffer from cognitive impairments, which is why elder Americans and their family members should be familiar with these concerns.

Elderly financial abuse is considered widespread and can have serious consequences for victims and their families. The National Adult Protective Services Association reports that one in nine seniors reported that they have suffered some type of abuse or been neglected or exploited in the past year. In addition, one in twenty seniors reported they have suffered from some type of perceived financial mistreatment.

The duties of an executor

Knowing what an executor does is important for families in California to understand. In addition, it is helpful for families to understand executor liability and what to do if an executor violates his or her fiduciary duties.

By definition, the executor is responsible for the disposition of property and possessions of the estate as noted in the decedent's will or other estate planning documents. Serving as the executor for the last will and testament of the decedent can be overwhelming, but it is an honor the executor will likely take very seriously. The executor has the significant responsibility of making sure the decedent's last wishes are fulfilled concerning the disposition of their property and possessions.

What is a conservatorship, and how is one set up?

Families in California considering a conservatorship for an elderly loved one may have many questions. It is important that they understand the basics of conservatorship, so they can make informed choices. A probate conservatorship is a court case during which a judge appoints a party as conservator. A conservator can be either an individual or an organization who is appointed to manage the finances of an individual that no longer possesses the capacity to do so for themselves.

There are generally two types of probate conservatorships: limited and general conservatorships. A general conservatorship is for individuals who cannot care for themselves or their finances and is most commonly sought for elderly individuals. A limited conservatorship is for developmentally disabled individuals who cannot care for themselves or their finances. Individuals in general conservatorships typically need a higher level or care. In addition, a temporary conservatorship can be appointed in exigent circumstances.

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