Title: April 25, 2007
Q. I got a divorce a couple of years ago. My ex-husband and I had a marital settlement agreement. We each kept a car, and each one of us had the responsibility to pay the debt on the vehicle that we kept. My ex-husband kept the truck, and I kept the car. Then he lost his job, failed to make the monthly payments on the truck. Of course, it was repossessed by the bank. The bank sold the truck for less than what was owed on it, and came after me for the balance. Can the bank do that?
A. Yes, it can. Your marital settlement agreement should have had a clause that said as follows: “if one fails to pay the debt owed on the vehicle, and the other party is sued for the balance, the party who was responsible for the debt shall indemnify the other for any expenses incurred as a result of a lawsuit against the other party”. That means that your ex-husband shall repay you for any expenses you incurred as a result of his failure to pay for the truck. However, if he is out of work, it may be difficult for you to obtain any money out of him. You will have to go back to Court and have the marital settlement agreement enforced against him under CCP 664.6 for material default.
Q. My mother-in-law has dementia. She owns a house and a couple of commercial properties that need to be managed properly. She can no longer take care of business. She does not have a power of attorney for financial affairs. My husband, her son, is willing to step up to the plate, but cannot do anything because no one accepts his authority to do anything. Is it too late for her to sign a power of attorney?
A. Yes, it is. She no longer has the mental capacity to sign a power of Attorney over to your son. If she was to sign one now, with her dementia, someone could challenge your son’s authority as having imposed his will on his mother, and used coercion to make her sign the power of attorney. At this point, the only thing he can do is to file a Petition for Conservatorship over her, with him as the Petitioner. However, he needs to make sure to have a recent physician evaluation as to the true mental condition of his mother, and that needs to be filed with the Petition for Conservatorship.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Showing posts with label conservatorship. Show all posts
Showing posts with label conservatorship. Show all posts
Monday, March 23, 2009
Legal Eaze #64 Conservatorship/Bankrupt Store Claim
Title: February 21, 2007
Q. My son is 38 years old. He is schizophrenic and manic-depressive. He cannot keep a job, and gets into trouble with the law all the time. He receives disability checks, but spends the money within 2 or 3 days after receiving it. The rest of the month, he is broke. He spends his money on beer, cigarettes and buys stuff for his “friends”. His friends are freeloaders who take advantage of his disability. He comes to my house just about every day to get fed, take a shower and get his clothes washed, but otherwise, I don’t know where he sleeps. He refuses to tell me. I tried to follow him but was unsuccessful. What should I do to help him?
A. It appears that your son may need a conservator. As his mother, you can file a Petition for Conservatorship over his person and his estate with the Superior Court. The Court will appoint an investigator (at your cost) to find out whether or not a conservatorship is the right way to go. If you are appointed his conservator (for the person and the estate), you will have the power to make decisions about how his money is spent, and where he will live, among other responsibilities. His care and well-being will be in your hands. A temporary Conservatorship might be granted by the Court (you have to file a Petition for Temporary Conservatorship at the same time as the Petition for General Conservatorship) until the Court investigator has completed a report. This process would be simplified if your son is willing to cooperate and agrees with your conservatorship over him.
Q. I purchased a diamond ring for my wife to give to her during the holidays. I bought it from a jewelry store that since went bankrupt. I paid several hundreds of dollars for the ring. My wife had the ring appraised and found out that the stone is a cubic zirconium, a total fake. I am furious at myself for having been fooled. My wife is furious at me for giving her a fake diamond ring. What do you suggest I do?
A. Since the company has filed for bankruptcy, you need to find out where the bankruptcy case was filed and file a claim with the Bankruptcy Court. If the store gave you a certificate of authenticity with the diamond ring, that can be used as proof that you overpaid for the CZ ring. It might be too late for you to file a claim, depending on how long ago the store filed bankruptcy, but it does not hurt to try.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Q. My son is 38 years old. He is schizophrenic and manic-depressive. He cannot keep a job, and gets into trouble with the law all the time. He receives disability checks, but spends the money within 2 or 3 days after receiving it. The rest of the month, he is broke. He spends his money on beer, cigarettes and buys stuff for his “friends”. His friends are freeloaders who take advantage of his disability. He comes to my house just about every day to get fed, take a shower and get his clothes washed, but otherwise, I don’t know where he sleeps. He refuses to tell me. I tried to follow him but was unsuccessful. What should I do to help him?
A. It appears that your son may need a conservator. As his mother, you can file a Petition for Conservatorship over his person and his estate with the Superior Court. The Court will appoint an investigator (at your cost) to find out whether or not a conservatorship is the right way to go. If you are appointed his conservator (for the person and the estate), you will have the power to make decisions about how his money is spent, and where he will live, among other responsibilities. His care and well-being will be in your hands. A temporary Conservatorship might be granted by the Court (you have to file a Petition for Temporary Conservatorship at the same time as the Petition for General Conservatorship) until the Court investigator has completed a report. This process would be simplified if your son is willing to cooperate and agrees with your conservatorship over him.
Q. I purchased a diamond ring for my wife to give to her during the holidays. I bought it from a jewelry store that since went bankrupt. I paid several hundreds of dollars for the ring. My wife had the ring appraised and found out that the stone is a cubic zirconium, a total fake. I am furious at myself for having been fooled. My wife is furious at me for giving her a fake diamond ring. What do you suggest I do?
A. Since the company has filed for bankruptcy, you need to find out where the bankruptcy case was filed and file a claim with the Bankruptcy Court. If the store gave you a certificate of authenticity with the diamond ring, that can be used as proof that you overpaid for the CZ ring. It might be too late for you to file a claim, depending on how long ago the store filed bankruptcy, but it does not hurt to try.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Saturday, January 3, 2009
Legal Eaze #6 Probate/ kid throwing rocks
Originally Printed: September 15, 2004
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She moved to Tehachapi in June 2003 and resides in Alpine Forest. She operates her law practice from her home office and also has a satellite office in Lancaster. She will answer legal questions posed to her by the readers, to the best of her abilities.
Q. When my father died several years ago, he had a will which had to go through Probate Court. Thousands of dollars of his estate were spent on attorney’s fees, accountant’s fees and court fees, not to mention that it took a couple of years for members of his family to receive their inheritance. I would prefer my children did not have to go through this long and expensive court process. Is there anything I can do now?
A. I am glad you asked. Yes, there is, and it is called a revocable living trust. As the trustor or settler, you can create a trust in which you transfer all your assets, including your residence. In California, all estates worth more than $100,000 must go through probate, unless the bulk of your estate is your residence which is held in a joint tenancy with your spouse, or your assets have been transferred into a living trust. You can control all your assets by naming yourself the trustee. If you are married, your wife can be your co-trustee. During your lifetime, you can change the terms or beneficiaries of your “revocable” trust. You must name a successor trustee who will enforce the terms of your trust after your death. After your death, your part of the trust (if you are married, it is called an AB Trust) becomes irrevocable, and it is the successor trustee’s job to distribute your assets to the beneficiaries designated in your trust. A knowledgeable attorney can help you with other estate planning tools that will avoid the necessity for conservatorship if you become disabled and incapable of making your own financial and health decisions. Often, such tools are encompassed in a Trust package which, compared to the cost of probate, is very affordable and simply a necessity for most families.
Q. A neighborhood kid has been throwing rocks at my dog for several months. A few days ago, my German shepherd escaped the backyard by climbing over the fence in pursuit of its tormentor. What is my liability?
A. When you dog escaped your backyard, you became liable for any injuries caused by your dog, under the Dog Bite Act, even if the injuries were not caused by a dog bite. However, depending on whether the child was old enough to understand the consequences of his actions in inciting your dog’s revengeful instincts, your liability may be lessened by the child’s contributory negligence.
Forward questions to maxinedev@msn.com , drop questions at the Tehachapi News, located at 411 N. Mill St., or send them to POB 1840, Tehachapi, CA 93581
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She moved to Tehachapi in June 2003 and resides in Alpine Forest. She operates her law practice from her home office and also has a satellite office in Lancaster. She will answer legal questions posed to her by the readers, to the best of her abilities.
Q. When my father died several years ago, he had a will which had to go through Probate Court. Thousands of dollars of his estate were spent on attorney’s fees, accountant’s fees and court fees, not to mention that it took a couple of years for members of his family to receive their inheritance. I would prefer my children did not have to go through this long and expensive court process. Is there anything I can do now?
A. I am glad you asked. Yes, there is, and it is called a revocable living trust. As the trustor or settler, you can create a trust in which you transfer all your assets, including your residence. In California, all estates worth more than $100,000 must go through probate, unless the bulk of your estate is your residence which is held in a joint tenancy with your spouse, or your assets have been transferred into a living trust. You can control all your assets by naming yourself the trustee. If you are married, your wife can be your co-trustee. During your lifetime, you can change the terms or beneficiaries of your “revocable” trust. You must name a successor trustee who will enforce the terms of your trust after your death. After your death, your part of the trust (if you are married, it is called an AB Trust) becomes irrevocable, and it is the successor trustee’s job to distribute your assets to the beneficiaries designated in your trust. A knowledgeable attorney can help you with other estate planning tools that will avoid the necessity for conservatorship if you become disabled and incapable of making your own financial and health decisions. Often, such tools are encompassed in a Trust package which, compared to the cost of probate, is very affordable and simply a necessity for most families.
Q. A neighborhood kid has been throwing rocks at my dog for several months. A few days ago, my German shepherd escaped the backyard by climbing over the fence in pursuit of its tormentor. What is my liability?
A. When you dog escaped your backyard, you became liable for any injuries caused by your dog, under the Dog Bite Act, even if the injuries were not caused by a dog bite. However, depending on whether the child was old enough to understand the consequences of his actions in inciting your dog’s revengeful instincts, your liability may be lessened by the child’s contributory negligence.
Forward questions to maxinedev@msn.com , drop questions at the Tehachapi News, located at 411 N. Mill St., or send them to POB 1840, Tehachapi, CA 93581
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