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.

There are few circumstances when your loved one should execute a financial power of attorney that gives their agent the immediate authority to make financial decisions. Financial powers of attorney are one of the easiest ways to commit elder financial abuse.

The preferred method is to require that the agent's authority is granted only after two qualified medical doctors declare in writing, under penalty of perjury, that the elder is mentally incompetent and unable to make sound financial decisions.

Although still not foolproof, this requirement gives a great deal of protection against financial exploitation. A bad guy must now involve two doctors in order to carry out the rip-off.

It is always possible that the perpetrator will simply have the elder execute a new power of attorney that revokes all prior powers and gives the agent the immediate authority. When family members and friends are actively involved in the elder's life, the crook will have much more difficulty in accomplishing this without being caught.

When the elder has no immediate family or friends, the odds of being financially abused are greatly increased. However, there are still some preventive measures that can be taken to reduce the risk.

Speak with bank personnel and other financial institutions where the elder's money is invested. Show them the power of attorney and explain that its purpose is to protect the elder in case someone tries to take advantage. Point out the added protection that requires two qualified medical doctors confirm the elder's lack of capacity before the power of attorney is effective.

Ask them to red-flag the elder's accounts by placing a computer notation that the bank personnel should question any substantial withdrawals or unusual activity.

In my city and state (Riverside, California), for example, a law exists that makes all bank employees a mandated reporter. This requires bank personnel to report any reasonably suspicious activity to local law enforcement. In states where similar laws exist, bank employees will receive some training to identify the signs of financial exploitation in order to comply with their mandated reporter requirements.

Many family members hesitate on broaching the subject of powers of attorney, in fear that their elderly loved one may take offence and tell them to mind their own business. Every family has their own unique dynamics. However, you can ease some of the awkwardness by doing some of your own research and sharing it with your loved one. Many counties agencies have informational brochures that explain the purpose in creating powers of attorney and how they can assist in financial matters.

Delaying the discussion often results in no action being taken. Then, when the need arises, it is often too late because the elder no longer has the requisite mental capacity needed to execute the power of attorney.

There is no surefire way to avoid financial exploitation of an elder. However, through education, discussion and assistance with the financial institutions involved, and with the help of a qualified elder law attorney, a power of attorney can be put in place that affords piece of mind that the chances of financial abuse are minimized.

By: George F. Dickerman, Esq.
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 powers of attorney for financial and healthcare decision making, 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

In California personal injury claims are often handled by attorneys, because of the complexity of seemingly simple cases. The common compensation system for wrongs still exists, but has been modified by law. Some states are called no fault and have substantially different laws. In California there is one major change that was made. More likely than not the change came about as a result of the insurance industry. Basically the idea is that people that are uninsured should not benefit at the expense of those that are insured.

In California your rights are reduced if you are driving a car and have no car insurance for the car you are driving. There are a few exceptions, but as a rule you must have car insurance if you are going to drive in the state of California to be able to make a full claim.

Personal injury claims are actually relatively broad claims that include more than just a claim for personal injuries. A personal injury claims is usually a claim that involves seeking reimbursement for medical expenses incurred treating injuries resulting from the negligence or intentional action of another, it also involves seeking compensation for the pain and suffering, if the injured person was married at the time of the event that caused the injury the spouse is entitled to make a claim for loss of consortium.

Loss of Consortium means many different things as defined by the California Supreme court, but in the vast majority of cases it has been reduced to a claim for diminished ability to engage in sexual relationships. Many claimants and potential claimants forgo the right, because exercising the right necessarily means the opposing party that caused the accident is entitled to inquiry about the sexual relationship between the couple and have his or her attorney ask written and oral questions pertaining to the sexual relationship. The injured party is also entitled to seek reimbursement for out of pocket expenses incurred in seeking medical treatment, such as transportation, over the counter drugs, neck braces, and other such items. The injured is also entitled to compensation for the time lost from work.

The claimant will not automatically receive compensation for all these things, this where attorneys come in. First the claimant has to prove that if he or she was driving the car that he or she was insured. If the driver was driving someone else's car, it is okay as long as the car was insured. In some cases there are exclusions for the particular driver, it is not unusual for spouses to exclude each other to get lower insurance rates when one of them has a poor driving record or criminal convictions for driving under the influence of alcohol. Some drivers create fancy schemes to get the vehicle insured and be able to obtain registration as well. Among undocumented workers there are many unregistered vehicles and many schemes as well where the driver is often not the registered owner or insured.

What results when these drivers are uninsured is that they lose their right to what are called general damages. General damages in short means the right to compensation for the pain and suffering. Sometimes the injured party failed to pay on time and the insurance was canceled, sometimes the payment was lost, and sometimes they forget to pay or mailed payment to the wrong place. These are not viable excuses an attorney cannot fix these errors.

By: Arnold Hernandez
Speak with a personal injury and wrongful death attorney today. San Diego Attorney, wrongful death, personal injury, Labor Overtime.