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Costa Mesa Trust Litigation Blog

How do court investigators fit into conservatorships

Caring for a loved one can quickly become complicated if that California resident is an adult who can no longer make decisions alone. In order to properly care for him or her, it will more than likely be necessary to establish a conservatorship. As is the case with all conservatorships, the court may assign a court investigator to look into a petition to help ensure that the rights of the conservatee are protected.

The investigator will set up at least one visit with the prospective conservator and conservatee to evaluate the situation. It may be necessary to have more than one visit in order for the investigator to provide the court with a thorough report. The court also tasks the investigator with determining whether the future conservatee understands what is going on. what it will mean for him or her and that he or she may attend the hearing and object to the conservatorship.

Tim Conway's daughter wants a conservatorship over father

California fans of the 1970s "Carol Burnett Show" could not help but remember Tim Conway. Since then, he has made appearances in television shows over the years, but now suffers from dementia. His daughter says that his wife wants to move him into what she believes is an inferior facility, so she wants a conservatorship over her father in order to ensure that he continues to receive the best care possible.

According to Conway's daughter, moving him to the facility favored by his wife would deny him access to health care professionals he needs, such as a speech therapist to help him with swallowing and a caregiver that is with him 24 hours a day. The court documents she recently filed indicate that Conway is largely unresponsive and unable to make decisions for himself. She wants to step in as his conservator and take care of her father in the manner in which she believes is best for him.

Do repeated questions have you concerned over your parent's mind?

You may feel immensely happy about the fact that your parent is living well into his or her elderly years. While you understand that you will likely lose that parent one day, you undoubtedly appreciate the time you have to spend with your loved one here and now. Of course, as your parent continues to age, you may notice some concerning behaviors.

Until recently, you may not have considered your parent to be in a position where he or she needed supervision or daily care. In fact, you may have just gone on an outing together not too long ago. However, you may have found yourself becoming frustrated with your parent lately as he or she keeps asking you the same questions over and over.

Is the trustee letting you look at the trust?

Several different tasks require attention when a loved one passes away. Perhaps one of the most important involves gathering all of a California decedent's estate planning documents, which may include a trust. If there is a trust, one of the first duties of a trustee is to provide the appropriate parties with a copy of the document.

Primary beneficiaries receive a copy. These are the individuals that receive an outright and immediate distribution from the trust, or individuals that receive principal and income from the trust right away. If an individual falls into this category, the trustee should provide him or her with a full copy of the document in order to understand what, how and when the individual receives distributions from the trust.

Issues in conservatorships: Protecting nursing home residents

Aging California residents may end up relying on family members to get them the care they need. In many cases, that means establishing conservatorships. One of the duties the conservator may need to perform in the first days and weeks would be to find a suitable nursing home facility since the conservatee may require more assistance than can be given at home or with the conservator.

More than likely, it would be the responsibility of the conservator to find that nursing home. Finding a quality facility that would meet the care needs of the conservatee may not be as easy as it sounds. It would also be the conservator's responsibility to ensure that the individual receives the care promised and does not suffer any harm due to neglect or abuse at the facility.

Removing conservators from conservatorships

Not everyone that a California court appoints to make decisions for someone else deserves that right. Some people make a good impression in court, but in practice, leave much to be desired. When it becomes apparent that conservatorships are more vehicles for taking advantage of vulnerable people rather than for protecting them, those conservators failing in their duties ought to be removed.

The primary duty of a conservator is to make decisions based on what would be in the best interests of the conservatee. Doing so includes properly managing money and assets, involving the conservatee in the decision-making process and pursuing all reasonable avenues before making a final determination on an issue such as living arrangements. When a conservator fails to carry out these and other duties, the vulnerable person suffers.

Are family conflicts a source of trust litigation?

No two California families are alike. Estate planning often takes this into consideration by allowing for many different options and designs when it comes to creating a plan, including leaving assets in a trust for the benefit of one or more family members. However, there may not be a foolproof way of keeping family conflicts from devolving into trust litigation.

These issues can arise due to a variety of reasons. One of the most common is unrealistic expectations. They expect to get more money or assets than they actually do.

Records may help you recognize an untrustworthy trustee

After your loved one's passing, you may have been pleased to learn that you had been named a beneficiary to a trust. The fact that your loved one thought of you and wanted to protect assets for your use through the terms of the trust may have given you a warm feeling and a sense of connection as your family member continues to provide for you after his or her passing.

While you benefit from the trust, you do not act as trustee. This means that someone else has the responsibility of following the terms of the trust and distributing assets to you and any other beneficiaries of that trust. While you may have felt comfortable with this arrangement at first, certain actions may have left you feeling wary of the trustee.

Special needs adults may need conservatorships

California parents of special needs children may wonder what to do after their child reaches the age of majority. At that point, the law considers the child an adult, which means that parents need to seek another way to continue to provide much needed care. Conservatorships provide many parents with the solution they need.

Before a California court will appoint a conservator for a special needs adult, it will need to ascertain whether it is necessary. The courts do not easily take away an individual's right to make decisions for him or herself. Instead, they will consider numerous factors before doing so. In fact, if possible, the court may favor a limited conservatorship, which allows the special needs adult the right to continue to make some decisions alone while having someone else make others.

Circumstances matter when trying to remove a trustee

California beneficiaries are not always happy with their circumstances. They may believe that the trustee of the trust to which they are entitled to distributions is not being fair. However, unless certain circumstances exist or the trust has a clause specifying under what circumstances a removal may take place, removing a trustee cannot be done simply because a beneficiary does not believe the trustee's actions are fair.

The trustee may be acting in accordance with the trust, and as long as nothing improper occurs, it may not be possible to remove the trustee. However, if a beneficiary believes something improper is happening, it may be possible. Without a removal process in the trust, it will be necessary to go to a California court.

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