Title: June 6, 2007
Q. My husband and I have a basic living trust. Our former residence is listed in the living trust but our new home here is not. Can I just type up an amendment to the living trust dropping the old one and inserting the new one? If so, how do I change our new property on the official records?
A. No, you cannot just type up an amendment to the living trust dropping the old one and inserting the new one. You need to have a Transfer Deed prepared, transferring the property from your name as individual owners to your name as trustees of your trust and have that transfer deed recorded with the county Recorder. This document needs to be notarized as well.
Q. My mother who is frail and elderly moved in with my brother last year. I think she is being abused by him. Can you define elder abuse and what can I do to help?
A. Elder abuse occurs when someone causes harm or risk of harm to an older adult. There are several forms of abuse, including physical abuse, sexual abuse, emotional abuse, financial abuse and neglect. Depending on what kind of abuse your mother is a victim of, you can file a Petition for Conservatorship, requesting that you become your mother’s conservator, and insist that your mother be placed in a home for the elderly, if you cannot take her into your home. It also depends on your financial ability to provide for your mother’s needs. People over 80 years old, especially women, are at a greater risk of experiencing elder abuse. If she is dependent on your brother to provide for her basic care, she is particularly vulnerable. Contact resources in your area, or your mother’s doctor to report your concerns. If you feel that your mother is in imminent danger, call the police. If you are not aware of an immediate danger to her health, or financial affairs, check with welfare and social service governmental agencies. Most cities and counties, according to state law, will investigate and protect vulnerable adults. The Adult Protective Services Agency, a component of Human Services state agency is typically responsible for investigating reports of domestic elder abuse. She is your mother and you should have a say in how she is being cared for and treated. It might be a mistake to talk to your brother about this situation.
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 petition for conservatorship. Show all posts
Showing posts with label petition for conservatorship. Show all posts
Tuesday, March 24, 2009
Monday, March 23, 2009
Legal Eaze #67 Marital Settlement Agreement/Power of Attorney
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
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
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
Friday, February 27, 2009
Legal Eaze #24 medicated son/ bankruptcy
Title: June 15, 2005
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. Our son resides with us. He is 22 years old and he suffers from schizophrenia. He has refused to take his medication on numerous occasions which is causing him to become aggressive, loud and obnoxious. He is a pretty big guy and my wife is sometimes fearful of him when she is alone with him in the house. He has never harmed her but sometimes I feel like it is only a matter of time before he does. I go to work every day and am away from our home from 7 a.m. through 7 p.m. five days a week. I don’t want my wife to feel like I am abandoning her and I don’t want her to be hurt by our son. What should we do?
A. You son need to be committed to a mental institution. What are you waiting for to do so? Are you waiting for your wife to be injured by your son? If your son refuses to take his medication, and that is the only thing that keeps him from acting out, then he is “an accident” waiting to happen. Until he realizes that taking his medication is what will keep him out of the hospital, he needs to be kept under control at all times. The medical staff at a hospital or a mental institution has the know-how to control a schizophrenic. You may also need to file a Petition for Conservatorship with the court in order to have the right to make medical decisions for your son. You may also need to manage his financial affairs, if he has any to manage, and becoming his conservator will give you that power.
Q. My credit card bills have become unmanageable. I am only working part-time now and I cannot keep a roof over my head and feed my family while continuing to pay for all our credit cards. My wife is eight months pregnant and cannot work anymore until she gives birth to our third child. What should I do?
A. File for bankruptcy, if you not done so already. I would advise you to hurry because the new bankruptcy laws will take effect in October 2005. Soon, it will be far more difficult for credit card debt to be discharged. In fact, many will be forced to file a Chapter 13, which entails repaying debt over time. Financial management classes will also be mandatory. The new bankruptcy laws will be disastrous for people who reached financial bottom through illness. Unfortunately, Congress members listed too closely to the credit card industry’s complaints. One can only expect that debtor’s prison will be reinstated next.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. Our son resides with us. He is 22 years old and he suffers from schizophrenia. He has refused to take his medication on numerous occasions which is causing him to become aggressive, loud and obnoxious. He is a pretty big guy and my wife is sometimes fearful of him when she is alone with him in the house. He has never harmed her but sometimes I feel like it is only a matter of time before he does. I go to work every day and am away from our home from 7 a.m. through 7 p.m. five days a week. I don’t want my wife to feel like I am abandoning her and I don’t want her to be hurt by our son. What should we do?
A. You son need to be committed to a mental institution. What are you waiting for to do so? Are you waiting for your wife to be injured by your son? If your son refuses to take his medication, and that is the only thing that keeps him from acting out, then he is “an accident” waiting to happen. Until he realizes that taking his medication is what will keep him out of the hospital, he needs to be kept under control at all times. The medical staff at a hospital or a mental institution has the know-how to control a schizophrenic. You may also need to file a Petition for Conservatorship with the court in order to have the right to make medical decisions for your son. You may also need to manage his financial affairs, if he has any to manage, and becoming his conservator will give you that power.
Q. My credit card bills have become unmanageable. I am only working part-time now and I cannot keep a roof over my head and feed my family while continuing to pay for all our credit cards. My wife is eight months pregnant and cannot work anymore until she gives birth to our third child. What should I do?
A. File for bankruptcy, if you not done so already. I would advise you to hurry because the new bankruptcy laws will take effect in October 2005. Soon, it will be far more difficult for credit card debt to be discharged. In fact, many will be forced to file a Chapter 13, which entails repaying debt over time. Financial management classes will also be mandatory. The new bankruptcy laws will be disastrous for people who reached financial bottom through illness. Unfortunately, Congress members listed too closely to the credit card industry’s complaints. One can only expect that debtor’s prison will be reinstated next.
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