San Diego Conservatorships Attorney
Most of the time, when someone is seeking a conservatorship, the person seeking the conservatorship (the “conservator”) has the best interests of the “conservatee” at heart. That said, the would-be conservatee also has rights at stake. Any time there are potentially competing interests involved in a matter, it is important to have independent advice from a lawyer.
Conservatorship: Why do I need a lawyer for a conservatorship?
Are there legal processes which can be accomplished without a lawyer? Certainly, there are some. Despite this, there is still a substantial risk that mistakes will be made by a non-lawyer which can be avoided with the assistance of a lawyer. Some mistakes made by non-lawyers can be difficult to remedy. The job of an attorney is to efficiently complete a legal task and ensure that it will “stick;” that is, the legal task will be difficult to undo and the goal achieved by the legal task will remain.
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Many legal tasks, such as establishing a conservatorship, require a fair amount of paperwork. This can be overwhelming for a non-lawyer. But even before embarking on the drafting of paperwork, the lawyer will ensure that there is a legal basis to proceed on a conservatorship. A conservatorship of the person may be created for a person who is unable properly to provide for his or her personal needs for physical health, food, clothing, or shelter. The facts underlying this standard must be able to be established, and those facts need to be proved by admissible evidence. An experienced attorney knows they type of evidence which will comply with the requirements of the Evidence Code.
To obtain a Conservatorship, you must petition the Court requesting that they appoint you Conservator over the person with mental capacity issues (i.e. the Conservatee).
A conservatorship of the property (estate) may be created for a person who is unable to resist fraud or undue influence, or who is substantially unable to manage his or her own financial resources. “Substantial inability” may not be proved solely by isolated incidents of negligence or improvidence. Often, would be conservatees give some cause for concern about their abilities to manage their property, but a lawyer knows the standard under which a court will agree that he or she is “unable” to do so to the point where a conservatorship is an appropriate measure.
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A person over whom a conservator is appointed may lose the right to vote, in addition to losing the ability to make other more mundane personal decisions. Abridging a person’s constitutional rights is always a serious matter. A would-be conservatee has the right to oppose a petition for a conservatorship. They may hire an attorney, or the court will appoint one if the conservatee is unable to afford one. If on the advice of counsel, the conservatee disagrees with the petition, he or she may demand a jury trial.
A non-lawyer does not belong at counsel table in a jury trial. The proving of allegations before a jury is a highly specialized legal skill.
Conservatees do not lose all rights or all voice in important decisions affecting their lives. All conservatees have the right to be treated with understanding and respect, the right to have their wishes considered, and the right to be well cared for by their conservators.
Conservatees generally keep the following rights: to control their own wages or salary from working; to make or change a will or trust; to marry; to receive personal mail; to be represented by a lawyer of his or her choosing; to ask a judge to change conservators; to ask a judge to end the conservatorship; to vote (unless a judge decides he or she is not capable of exercising this right); to control personal spending money if a judge has authorized an allowance; and to make his or her own medical decisions (unless a judge has taken away that right and given it exclusively to the conservators).
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When you hire an attorney to assist with the prosecution of a petition for conservatorship, your attorney will advise you on your duties, the limits of your authority, the conservatee’s rights, your dealings with the court, and many other matters. Your attorney will tell you when you must ask for prior court approval to take an action, when you may do so (and why it might be a good idea), and when prior court approval is not required. All legal questions should be discussed with your attorney, not the court staff or clerks, neither of whom are authorized to give legal advice.
Your lawyer will also help prepare your inventories, accountings, petitioner, and all other documents to be filed with the court, and will also see that the persons entitled to be notified of your actions are given proper notice. Your lawyer will also advise you about legal limits on estate investments, leases, and sales of estate assets, loans, lawsuits against others involving the conservatee or his or her property, and many other matters, and can prepare or review documents needed in these matters. You should communicate frequently and cooperate fully with your lawyer at all times. When in doubt, contact your lawyer. Other nonlegal questions may be answered by calling on local community resources.
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As the conservator, you will have a number of different legal responsibilities to fulfill on behalf of the conservatee. These include: Prudently managing the conservatee’s investments; obtaining court approval for fees, borrowing, loans and gifts; keeping estate money and property separate from your or anyone else’s money or property; managing interest-bearing accounts and other financial instruments; pursuing claims against others on behalf of the conservatee; defending claims against the conservatee’s estate; collecting all public and insurance benefits to which the conservatee is eligible.
Evaluating the conservatee’s ability to manage cash and other assets by him or herself;locating the conservatee’s estate planning documents (if any); preserving property mentioned in the conservatee’s estate planning documents; guarding against inappropriate disclosure of the conservatee’s financial information; informing family members about the conservatee’s tangible personal property; considering factors bearing on whether to dispose of any of the conservatee’s property; obtaining property, casualty, and liability insurance; just to name a few.
Some would be conservators are not likely to be appointed a conservator due to: the proposed conservator’s financial entanglements with the proposed conservatee; the financial well-being of the proposed conservator; the criminal history of the proposed conservator; prior history of civil litigation; the type of people living in the home of the proposed conservator.
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In the end, the goal is to provide for the conservatee the services that he or she is no longer able to perform and to do so in a way which is proper for both the conservator and the conservatee.