This brief article describes conservatorships in California. In general, a conservatorship is established over an adult, while guardianships apply to minors.

There are generally two kinds of conservatorships: over the person and over the estate. Many times, one conservatorship case includes both types.

To establish a conservatorship over the person, the court must find that the proposed conservatee is substantially unable to provide for their food, clothing and shelter. The petition to create a conservatorship is usually filed by a loved one or family member who recognizes the elder's inability to provide for these personal needs. In Riverside County, California, for example, the petition may be filed by the Public Guardian's Office when no family member or other interested person is available to assist.

A conservatorship over the person should occur only when no reasonable alternatives are available. A future article will discuss such alternatives, but these include informal assistance from loved ones and powers of attorney for health care decision making. Sometimes, an elder unquestionably needs assistance but will not voluntarily agree to accept it. Their deteriorating mental faculties prevent them from recognizing the need and they simply refuse any help.

When the court orders the establishment of a conservatorship over the person, it will appoint a conservator and grant that person the authority to make all necessary decisions to properly provide food, clothing and shelter for the conservatee. Often, these powers will also include the authority to make medical decisions.

To establish a conservatorship over the estate, the court must find that the proposed conservatee is substantially unable to make sound financial decisions or to resist fraud or undue influence. The circumstances necessary to show this condition usually involve an elder who fails to timely pay bills, open the mail, or respond to bank notices. A conservatorship over the estate can also be necessary when a perpetrator manipulates an elder and wrongfully takes money or property.

Alternatives to a conservatorship over the estate must also be explored. If the elder still possesses legal mental capacity, then a financial power of attorney can be created that provides a trustworthy agent the authority to assist with banking needs, bill payment and other financial decisions.

When the court appoints a conservator of the estate, then that person will be granted all powers necessary to marshal the elder's assets, receive income and make disbursements - all in accordance with the reasonable steps required to care for and maintain the elder's estate.

It is not necessary that the conservator live in the same county or state as the conservatee. Logistically, this would be the preferred choice. However, the court recognizes that the conservatee's family members may not live nearby but would still be the best choice to carry out the conservatorship duties on behalf of their loved one.

The court will require certain periodic reports and accountings by the conservator to make sure that all tasks are being performed for the sole benefit of the conservatee. This ensures that the conservator does not take advantage of the elder and allows the court to make recommendations when necessary.

Conservatorships are often a necessary legal procedure to assist those who can no longer sufficiently care for themselves. An elder law attorney can assist to make the process as easy to navigate as possible.

By: George Dickerman
George F. Dickerman is an elder law attorney in Riverside County, California, practising law for 23 years. To learn more about elder law issues, including the topic of conservatorship, and to subscribe to a free newsletter that provides valuable information on how to assist your family members and loved ones, please visit http://Elder-Law-Advocate.com

This brief article describes what remedies are available, through conservatorships, when an elder has been unduly influenced into changing their trust's beneficiaries.

A person makes a family trust to accomplish a variety of things, both during and after their life. After death, their trust primarily serves to distribute their property and money to loved ones. During their lifetime, an elderly man or woman may become mentally incapacitated and require the establishment of a conservatorship so the court can appoint someone to have authority to make sound financial and healthcare decisions.

During this conservatorship process, it is often discovered that the elder had previously prepared a trust that named certain family members as beneficiaries. It may also be discovered that the elder, during a time when their mental capacity was questionable, made an amendment to their trust that disinherited their family members and named new beneficiaries. If this amendment were the result of undue influence, then the court can remedy the problem by ordering a "substituted judgment".

Most courts, including my hometown in Riverside County, California, will bend over backwards to honor a person's testamentary wishes as instructed in a trust document. Substituting the court's interpretation of that person's wishes, when two competing documents exist, is a difficult task and requires overwhelming evidence to prove the true intent of the elder.

The court will take into account many facts and circumstances in making its decision. Witnesses can be called to testify to the elder's mental state during the time that the original trust and amendment were created. However, the most compelling proof may be found in the elder's medical records at the time of the purported amendment.

During this time, the elder may have begun suffering from short or long term memory loss, or been diagnosed with dementia or some stage of Alzheimer's disease. Their doctor may have prescribed psychotropic medications - mood altering drugs to slow down the symptoms of mental incapacity.

Additionally, evidence of the relationships between the elder's family members (original beneficiaries) and the new (purported) beneficiaries can be presented. The new beneficiary may be a caregiver who has lived with the elder at their home in order to provide companionship care. This new relationship may have existed for only a few months before the trust amendment was made. An elder, with diminished mental capacity, can quickly be taken advantage of in this fashion. Discovering the identity of the person who drafted the trust amendment, how the elder was introduced to them and the circumstances surrounding the actual signing of the amendment, can provide significant proof of undue influence.

Substituted judgment is one of the remedies available to invalidate wrongful amendments to family trusts when an elderly victim is under a conservatorship. Time is of the essence and will require an elder law attorney who is experienced in issues involving elder financial abuse.

By: George Dickerman, Esq.
George F. Dickerman is an elder law attorney in Riverside County, California, practicing law for 23 years. To learn more about elder law issues, including substituted judgment, and to subscribe to a free newsletter that provides valuable information on how to assist your family members or loved ones, please visit http://Elder-Law-Advocate.com

This brief article describes conservatorships in California. In general, a conservatorship is established over an adult, while guardianships apply to minors.

There are generally two kinds of conservatorships: over the person and over the estate. Many times, one conservatorship case includes both types.

To establish a conservatorship over the person, the court must find that the proposed conservatee is substantially unable to provide for their food, clothing and shelter. The petition to create a conservatorship is usually filed by a loved one or family member who recognizes the elder's inability to provide for these personal needs. In Riverside County, California, for example, the petition may be filed by the Public Guardian's Office when no family member or other interested person is available to assist.

A conservatorship over the person should occur only when no reasonable alternatives are available. A future article will discuss such alternatives, but these include informal assistance from loved ones and powers of attorney for health care decision making. Sometimes, an elder unquestionably needs assistance but will not voluntarily agree to accept it. Their deteriorating mental faculties prevent them from recognizing the need and they simply refuse any help.

When the court orders the establishment of a conservatorship over the person, it will appoint a conservator and grant that person the authority to make all necessary decisions to properly provide food, clothing and shelter for the conservatee. Often, these powers will also include the authority to make medical decisions.

To establish a conservatorship over the estate, the court must find that the proposed conservatee is substantially unable to make sound financial decisions or to resist fraud or undue influence. The circumstances necessary to show this condition usually involve an elder who fails to timely pay bills, open the mail, or respond to bank notices. A conservatorship over the estate can also be necessary when a perpetrator manipulates an elder and wrongfully takes money or property.

Alternatives to a conservatorship over the estate must also be explored. If the elder still possesses legal mental capacity, then a financial power of attorney can be created that provides a trustworthy agent the authority to assist with banking needs, bill payment and other financial decisions.

When the court appoints a conservator of the estate, then that person will be granted all powers necessary to marshal the elder's assets, receive income and make disbursements - all in accordance with the reasonable steps required to care for and maintain the elder's estate.

It is not necessary that the conservator live in the same county or state as the conservatee. Logistically, this would be the preferred choice. However, the court recognizes that the conservatee's family members may not live nearby but would still be the best choice to carry out the conservatorship duties on behalf of their loved one.

The court will require certain periodic reports and accountings by the conservator to make sure that all tasks are being performed for the sole benefit of the conservatee. This ensures that the conservator does not take advantage of the elder and allows the court to make recommendations when necessary.

Conservatorships are often a necessary legal procedure to assist those who can no longer sufficiently care for themselves. An elder law attorney can assist to make the process as easy to navigate as possible.

By: George Dickerman
George F. Dickerman is an elder law attorney in Riverside County, California, practising law for 23 years. To learn more about elder law issues, including the topic of conservatorship, and to subscribe to a free newsletter that provides valuable information on how to assist your family members and loved ones, please visit http://Elder-Law-Advocate.com

Civil cases for elder law trials can be heard by a jury or non-jury (i.e., a judge). Which is better?

Almost always, a trial by jury should be the preference of the elderly client's attorney. Although the number of jurors who hear a case may vary from state to state, twelve persons typically comprise a jury. A jury of ordinary citizens is more likely to experience sympathy for an elderly client than would a single judge hearing the case. A judge may have heard thousands of cases before and, as a result, is more likely to be somewhat hardened at the individual acts that the elderly plaintiff has suffered.

A jury, on the other hand, has not seen nor heard of such atrocities before, and may react more sympathetically than an experienced judge.

It is almost always a dangerous proposition to place the decision-making authority (verdict or judgment) into the hands of just one person. A judge may have a host of personal issues that affect his or her judgment. Their father or mother may have been terrible to them while they were growing up, and those many dreadful experiences may alter their ability to judge the facts fairly.

Where there are twelve jurors, the law requires that at least nine agree upon whether the defendant is liable. If at least nine jurors cannot agree, then the term "hung jury" applies and a mistrial will be found. If the elder-plaintiff desires to continue with his or her case, then a new trial will be required.

Although these ordinary citizens may initially gripe and moan at the prospect of having to appear for jury duty (quite understandable), most of them who are actually selected as jurors and hear the case are quite pleased with the experience and insight that they received into the actual courtroom workings of the judicial process.

This too, is in contrast to a judge who has been there and done that for twenty years and no longer sees the trial as a fresh experience and learning process. An old-time judge may have one goal: to get the case off his/her bench and reduce the caseload.

In certain cases, the elderly plaintiff may not have the right to a jury trial. These are called equity claims where, for example, the elder is seeking to quiet title to a parcel of real property and wants the court to determine ownership rights. The elderly plaintiff may be asking the court to impose upon the defendant what is called a constructive trust, and return legal title to the plaintiff. This too, is a claim in equity and the law generally does not provide the right to a jury trial.

In California though, even cases involving conservatorships can offer the right to a jury trial. A jury can be used to determine whether the elder needs a conservator to manage his/her finances. Although not often utilized, a jury trial can be held to decide this single issue. If a jury determines that a conservatorship is necessary, then their task is over and they will be dismissed. The case is then turned over to a judge who rules upon the remaining conservatorship issues.

When the right to a jury trial exists, the smart tack is to take advantage of the reasonableness and common sense of twelve ordinary citizens. Usually, at least nine out of twelve will get it right.

By: George Dickerman
George F. Dickerman, Esq., is an elder law attorney in Riverside County, California, practising law for 23 years. To learn more about elder law issues, and to subscribe to a free newsletter that provides valuable information on how to assist your family members or loved ones, please visit http://Elder-Law-Advocate.com.