Conservatorship Walnut Creek CA
Looking for assistance with a Conservatorship in Walnut Creek, CA?
If someone does not have a revocable trust and a Durable Power of Attorney for Financial Management then they will need a Conservatorship which is supervised closely by the courts.
What are you going to do when you find out that a loved one is still alive but not competent to think properly or they can no longer communicate to others what they want or need?
If the possibility of incompetency exists, then the reality of the situation should be dealt with directly and promptly. It is becoming an increasingly more common situation in our modern society, that most of us will eventually become incompetent and not able to manage our own affairs at some point in our life. These issues should be considered any time when their competency becomes doubtful. This might be in the form of not being ability to understand when people speak to them, manage their home or financial affairs, when they cannot keep up with, supervise, and make competent decisions that are in their own best interest at this time.
It is much better if these issues are addressed before the person looses their ability to continue to manage her own affairs.
If a person is not able to keep up with what is going on in their life or they are unable to recognize people that they normally have contact with, then we suggest that one or two family members schedule a doctor’s appoint for the person.
You should consider bringing them to a licensed medical physician and have a written competency evaluation report prepared.
It might be a good idea to ask in advance if this particular doctor’s office customarily provides competency evaluations and issues written letters if it is determined that the person is no longer able to take care of themselves or they are diagnosed as being incompetent.
Rex Crandell Firm can help you file a Conservatorship in Walnut Creek, CA
How do you know someone needs a Conservatorship?
When a person is unable to comprehend and make the necessary decisions in their lives, the California Probate Code uses the term that the person “lacks competence”.
When a licensed medical physician makes a written competency report indicating that the individual is not competent, in the doctor’s written opinion, then many things need to change regarding the care and supervision of the person.
Does the person have a Revocable Living Trust?
Are most of their assets labeled in the name of the trust?
If so, then you should read the trust instrument to find out what it says about a competency determination.
A creator of a revocable trust that names themselves as the initial trustee cannot continue to act in the capacity of a trustee when they have been declared not competent. In addition, the person would not have the right or legal ability to sign or enter into any type of contract or agreement if they are incapacitated.
You should re-read the trust instrument to see what it says about the process and who will step into the office of successor trustee when a determination of non-competency has been issued by a medical doctor or by other specific terms spelled out in the trust. This section should be read before contacting a medical doctor to examine the person for competency issues. The specified successor(s) trustee will take over the office of trustee for the trust (as written in the trust document) assuming that the successor(s) trustee is ready, willing and able to assume the trustee’s duties and responsibilities.
What happens with the assets that are not labeled in the name of the Trust?
For assets that are not labeled in the name of a trust there will need to be some procedure to manage those assets if a non-competency determination is properly issued. These assets frequently could include pension plans, annuities or IRA accounts that are governed by a beneficiary statement with the asset holding entity. Other assets that are labeled in the person’s individual name and do not show the trust as the owner will also fall into this category of asset, like bank accounts or real estate held in the person’s name alone and not in the name of the trust.
If the person does not have a Durable Power of Attorney for Financial Management, then a court supervised conservator will need to be nominated, appointed and confirmed by the local probate court. Then the appointed conservator will need to make regular reports to the court because the entire process is done under court supervision to protect the rights, assets and health for the incapacitated person.
You would be well advised to attempt to avoid the costs, regulation and time involved in the court supervised Conservatorship path when there is any way to avoid it.
When the person becomes incompetent and they had previously created a revocable trust and labeled most of their assets in the name of the trust, then a court supervised conservatorship can be avoided for management of all assets in the trust.
If the person had previously prepared and signed a Durable Power of Attorney for Financial Management and a determination of incompetency has been medically issued in writing, then the person specified in the Durable Power of Attorney for Financial Management document will then step in and begin managing the assets that are not held in the name of a trust. When the person becomes incompetent and they had previously signed a Durable Power of Attorney for Financial Management form, then all assets that are not in a trust will be managed by the named financial manager without court intervention. Again, if one exists, then the provisions should be read, evaluated and understood, especially by the person named in the document to take over the financial management duties. Normally, the provisions are written in a way that is understandable to most people.
You should also hire an attorney to be your legal advisor to help the family keep within the proper legal bounds when dealing with these types of situations. Now days, when well-meaning but mistaken family members do not follow the legal rules law enforcement officials may try to prove criminal elder financial or physical abuse took place. A well meaning but not informed about the laws in this area can create personal liability for the care giver for not following proper procedure.
Rex Crandell Firm can help with a Conservatorship in Walnut Creek, CA
Our firm highly recommends everyone creates an Estate Plan so their assets and their loved ones are protected!
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