Category: Conservatorship

Happy smiling retired couple during on-line meeting with an Elder Law Attorney.

Transfer on Death Deeds – Revised California Law

The law on transfer on death deeds was set to expire this year. Instead, it was revised, and the law will stay in effect until 2032. A transfer on death deed allows an individual to pass their real property onto a beneficiary after they die without the expense of a probate or a trust. Transferrable real estate includes most condominium interests and residential properties with four or fewer dwelling units.

While this procedure does avoid red tape and expenses, the availability of those deeds can be a financial elder abuse trap for the vulnerable or cognitive challenged older adult. Although the changes to the law now require the signature of two disinterested witnesses, I have seen many brainwashed older adults transfer property to another after that individual has convinced them that they are the appropriate recipients. Often, they foster a belief system that their natural heirs are unworthy. The requirement that the transferers signature on the deed be notarized remains in effect, but notaries do know if someone has been unduly influenced into transferring their property unless the perpetrator is there breathing down the older adults whose hand is shaking from fear when they sign. Elder abusers are usually more savvy having groomed their victim over time.

Like with a trust or a will, there will still be an opportunity to challenge the deed as the heirs must receive a notice of the deed, the deed and the death certificate. The beneficiary must record the affidavit verifying notice to the heirs. If you receive a notice and you believe that there was elder abuse or undue influence involved, call an attorney immediately as there is a limited amount of time to mount a challenge.

Young woman talking aggressively to a scared elder woman.

Fighting Families

Trust litigation is very taxing. I just had a mediation, and the Judge described the probate courts as “family law on steroids.” There is no typical case, but they all seem eerily similar. Most all involve older adults, usually parents, who have been taken to a new attorney by an adult child who unduly influences said parent into disinheriting the other children. Worse, often that parent is isolated from the other children and is turned against them because the “bad” kid has their ear 24/7. While it is bad enough that the heirs have had their bequests stripped from them, what is truly tragic is that the older adult has had their dignity smashed; a whole life of love and kisses in bits and pieces like a fragile mirror after a tumultuous earthquake.

To do this takes a lot of moving pieces.

Here’s the recipe:

Step 1. Make sure that your parents are cognitively challenged, and vulnerable.
Step 2. Find a willing attorney (that is not me)
Step 3. Drag your parent to the “willing” attorney, and on the way fill her head with horror stories and make her fearful of her other children. I have a good one. Tell her that your siblings want to lock her up in a facility and steal her money. That should do the trick. Once the deed is done, move in with her and isolate the rest of her kids from her. Tada! Just like magic.

So what can you do about it? Unless you’ve lucked into a good Probate Judge, sometimes nothing. Can you imagine going to court (with a conservatorship or elder abuse petition) and having the Judge either kick the can down the road while your time with mom fades away or defer it to a court appointed counsel who either does not understand the subtleties of undue influence or for some inexplicable reason sides with the what seems to be the obvious ne’er -do-well? In the latter circumstance, it seems that the “bad” kid must be really good at bamboozling not just the demented.

Old people can get brainwashed easily. Period.

If you get a thoughtful Judge, you can petition the court for an emergency conservatorship and get a visitation order. In one case recently that is exactly what happened. The trouble is that mom may not abide by the order having been told repeatedly that you are evil. In another case, the isolation was so bad, that my client got custody of her father and was made his temporary conservator.

What if you know that mom is incapacitated, and you know that the changes to her trust are the result not only of undue influence but that she did not have the capacity to make the purported changes? Can you fix this during her lifetime?

The answer is yes and more importantly if you wait until after she dies, you may have waived your right to contest. During mom’s life you can either petition the court for a conservatorship and seek to reform the trust though a substituted judgment proceeding within the conservatorship proceedings, or you can file a petition to invalidate the trust if there is no conservatorship proceeding.

If you do neither you can lose your standing to challenge the trust after mom dies under the doctrine of latches according to Drake v. Pinkham 217 Cal.App.4th 400 (Cal. App. 2013).

In Drake v. Pinkham the Third District Court of Appeal held that that a beneficiary may have had standing if, as the beneficiary alleged, the settlor was incompetent at the time she brought her trust contest. The court suggests that an aggrieved beneficiary may be able to bring a pre-death trust contest if the beneficiary can ultimately prove the settlor’s incompetence.

More importantly the court found that by the daughter failing to take this action during mom’s lifetime, she could not pursue a trust contest post death because she was barred by the doctrine of latches (an equitable doctrine that is a sorry Charlie you waited too long).

The key lesson of Drake is that beneficiaries cannot simply wait until Mom is deceased to contest trust amendments that disfavor them if they know (or should know) of the amendments and also know (or should know) of mom’s incapacity.

Britney Spears California conservatorship case

What is significant about the Britney Spears California conservatorship case?

Britney Spears California conservatorship case
What is significant about the Britney Spears Case

Two very compelling issues in the Britney Spears California conservatorship case deserve attention.

It is important for the public to be aware and to make sure that you or your loved one does everyone you/she/they can avoid this from happening. If it does, you really need a strong advocate.

The first is that she was precluded from hiring her own counsel. Instead, the court disallowed her choice of Attorney Adam Streisand (Yes, Barbara Streisand’s son). Instead she was forced to accept a court appointed counsel (CAC) who, despite what his client wanted, was instrumental in keeping Ms. Spears from hiring Mr. Streisand.

Because the CAC makes money representing Ms. Spears (or any proposed conservatee) that is a serious conflict of interest. In every California conservatorship case, a proposed conservatee (someone who is the subject of the action like Ms. Spears), must get personally served with a “citation.” This is like a summons and complaint. It serves to ensure that the person whose civil rights will be impacted has due process.

What is due process? It is, among other things, the right to counsel to defend yourself against allegations. In fact, on the citation, paragraph 6, it literally says :

“You have the right to appear at the petition and oppose the hearing. You have the right to hire an attorney of your choice to represent you. The court will appoint an attorney for you If you are unable to retain one.“ (emphasis added.)

Next, this CAC, her supposed advocate, agreed that she should not be allowed to have copies of certain documents filed on her behalf and filed by her father, who initiated this conservatorship.

Imagine that. Your attorney, who you did not hire, who gets paid from your account by court order, does not have to share documents with you? If I did that or any of my colleagues did that in a conservatorship case in California, we would be disbarred.

This CAC can and does bill Ms. Spears thousands of dollars every month.  She does not want to be in a conservatorship (and does not want her father involved), and it was only when the public began to take notice and apply media pressure that the court appointed counsel woke up and began to advocate for her freedom.

This started out as a temporary conservatorship. Perhaps, and I do not profess to know, there was an emergency (see my blog on California Conservatorships) but we all know that Ms. Spears has been working tirelessly and certainly the exigent circumstances have seen better days as must this conservatorship.

California Conservatorship Attorney

How to Obtain a Conservatorship in California

Before we go over how to obtain a Conservatorship in California, we need to understand some terminology. In California, unlike other states, we call a protective proceeding for an adult a conservatorship. While a protective proceeding for a minor is called guardianship.

They serve the same purpose – to manage medical and or financial affairs for someone who is unable to, due to age or infirmity. This impaired individual is appointed a guardian or protector by the court who can step in as (the “conservator”). Guardianship in California is a vehicle used to assist those 18 an under. To make things even more confusing there are 3 different types of conservatorship proceedings.

A General Conservatorship:

Most often used in the cases of an elderly person whose mental or physical capacity has been severely compromised due to aging.

A Limited Conservatorship:

Generally set up for those who have developmental disabilities, such as individuals with autism, epilepsy, cerebral palsy, or mental retardation that began before their 18th birthday.

A LPS conservatorship:

(Also known as a mental health conservatorship is part of the Lanterman-Petris-Short (LPS) Act 1967.) An LPS Conservatorship is the legal term used in California. It gives the conservator the responsibility for overseeing the comprehensive medical (mental) treatment for an adult conservatee who has a serious mental illness. Conservatees in LPS Conservatorships are usually adults who require very restrictive living arrangements and/or require extensive mental health treatment. LPS Conservatorships must be started by a local government agency.

In order to get a conservatorship, you must file certain papers with the court. The goal is to obtain an order from the Judge and letters of conservatorship that the newly appointed conservator can use with banks and doctors, etc. The paperwork and the court appearances required to put things in order can be overwhelming.  In order to get a hearing, one must typically wait 60 days. In emergency situations, you can get a hearing in as little as 5 court days. This is called a temporary conservatorship. If successful, you will be provided with temporary letters to use until the hearing on the permanent (resulting in permanent letters).

Even though this seems like a daunting process, don’t let that keep you from taking charge of a dangerous or life-threatening situation. At the Law Offices of Susan B. Geffen, we have the knowledge and skills to file the necessary paperwork to accomplish our client’s goals.

Steps for filing for a Conservatorship:

1. File a Petition For Conservatorship with the court:

The petition must include information about the proposed conservator. This includes potential conservatee, relatives, and the petitioner (person filing the case in court). It must also include reasons explaining why the conservatorship is necessary and should be granted. As well as, why the possible alternatives are not available in this case.

2. File a Confidential Supplemental Information Form:

This form details why the proposed conservatee is unable to care for their own personal and financial needs.

3. File a Confidential Conservatorship Screening Form:

The Confidential Conservatorship Screening Form must be filled out by the proposed conservator. The form includes questions about the conservator’s relationship to the conservatee, about the conservator’s criminal background, and any other relevant information.

4. File a Duties of Conservator Form:

This form outlines what the conservator will be doing for the conservatee. This includes information such as taking care of the conservatee, keeping records and accountings of finances, providing information to the court, etc. The proposed conservator must read and sign this form to acknowledge that they have received this information along with the Handbook for Conservators. Click here for an online copy

5. Serve Notice on the Conservatee:

You must inform the potential conservatee of the proposed conservatorship by delivering a citation and a copy of the petition. The citation must be delivered by an individual who is NOT a party in the conservatorship. This means that the proposed conservator cannot deliver the citation. A family member or professional may deliver the citation.

6. Provide Notice to the Conservatee’s Relatives:

You must mail a copy of the petition along with written notice about the court hearing on the conservatorship petition to the conservatee’s spouse/domestic partner and close relatives. These documents must be mailed by someone other than the petitioner.

7. Obtain a bond.

The bond protects the conservatee’s assets.  If the conservator engages in theft, fraud, misrepresentation, or improper handling of assets a claim can be made against the bond.  The conservatorship bond amount is determined by the judge and is based on the worth of the financials or estate of the person you are caring for. You won’t have to pay the entire bond amount to get bonded, but you will have to pay an annual premium for the bond, until the bond is released from the court. You will pay for a small percentage of the total bond amount. For example, if the court requires you to provide a bond in the amount of $100,000, you will not have to pay $100,000. Depending on your approval with the surety company, you might only need to pay around $400 – $500.

At the Law Offices of Susan B. Geffen, we have handled dozens and dozens of general and limited conservatorships. Susan B. Geffen is not only an elder law attorney but holds a Master of Science degree in gerontology from the University of Southern California. Giving her a unique insight into the struggles that both a concerned family may have about a loved one’s ability to continue to care for themselves.