Thursday, July 21, 2016

Mom Frozen Out of Public Benefits After Son’s Death

Can in-home supportive services caregivers collect unemployment benefits after their child dies?

In an ideal world, no parent would have a terminally ill child or have to bury a child. It’s just not the natural order of life. Yet, life isn’t ideal--or even fair.

In California, a parent of a terminally ill child may not only apply for assistance through the federal Social Security Disability Insurance (SSDI) Benefits program, but may also seek state-based assistance by applying to be an In-Home Supportive Services (IHSS) Caregiver for their child. The latter designation allows the parent to stay home to care for their terminally ill child while earning minimum wage.

Read more . . .

Monday, August 24, 2015

Does a New California Resident Need to Transfer an Out-of-State Conservatorship?

I recently moved to California with my adult, special-needs child. How do I set up a conservatorship?

Moving to a new state with a guardianship or conservatorship in place can present unique challenges for both the conservator and the ward. Accordingly, it is best to inform the courts of both the old and new jurisdictions as soon as practically possible.. Under California probate laws, this is accomplished by petitioning the court for a new conservatorship. Moving from the jurisdiction of California will require court permission prior to the relocation, as well as consent of all interested parties.

The first step, in most cases, is to seek permission from the court in which the current conservatorship or guardianship was originally entered. Often, this process requires notifying the ward’s next-of-kin of the intended relocation, affording interested parties the opportunity to object to the move on reasonable grounds.

If, however, the court or family members do not take issue with the intended relocation, the conservator (for adults) or guardian (for children) must transfer the out-of-state order to the California court as soon as possible. This is generally accomplished by submitting a completed GC-310 form . This form details the relationship between the proposed conservator and the ward, including whether the conservator has served in the conservatorship role (or similarly-titled role) in the past. The form also details the ward’s approximate assets, and whether the ward is suffering from dementia, in which case additional affidavits and paperwork will be required.

Much like the out-of-state guardianship or conservatorship process in the former jurisdiction, the court in the new location will require notification of all next-of-kin and interested parties, who may raise an objection to the appointment. A probate law attorney can help the proposed conservator implement a temporary conservatorship in California to ensure that the ward’s needs are met during the period in which  permanent conservatorship proceedings are being conducted.

If you are considering moving to or from California and would like to discuss your options in regard to conservatorship or guardianship, please do not hesitate to contact our knowledgeable attorneys at Berge & Berge. Serving clients in and around San Jose and Santa Clara Counties with concern and respect, we can be contacted at 408-985-9918.

Friday, July 10, 2015

Minimizing Liability for Conservators

I was recently appointed as a conservator in California. What can I do to avoid unnecessarily exposing myself to liability? 

Serving as a conservator is oftentimes a thankless and grueling job. However, the role serves a vital purpose in protecting California’s vulnerable children and adults from risk and harm. As a conservator, it is important to follow California’s guidelines to the letter – particularly with regard to the handling of assets and financial transfers on behalf of the ward, as any improper intentional misconduct could lead to significant liability and loss of the role of conservator.

One of the first steps in serving as a conservator is often obtaining a conservator’s bond – which operates to insure the conservatee in the event of loss. If the conservatee’s next-of-kin, and the conservatee himself, consent to the arrangement, the bond may not be necessary. 

From there, a conservator must notify the ward’s banks, financial advisors, and any other individuals or institutions involved in the assets of the estate. This is accomplished by providing Letters of Conservatorship, which are issued after the conservatorship is officially ordered. Attempting to rearrange assets or otherwise access the estate assets could quickly trigger liability for the conservator. 

From there, a conservator must arrange for an inventory of the conservatee’s entire estate, which must be filed with the probate court within 90 days. Another way to avoid liability is to ensure the inventory is completely accurate and includes all real and valuable personal property belonging to the ward. From there, the conservator must make and follow a Plan for Conservatorship, which will cover the methods and techniques the conservator will use to ensure the assets are properly managed and prudently invested. 

One of the most common ways in which a conservator could face liability to a conservatee’s beneficiaries involves the mismanagement of estate funds. As conservator, one must ensure the conservatee is adequately cared for, has all monthly obligations met, has appropriate medical coverage, and is able to live on a reasonable budget. If a conservator fails to properly maintain the conservatee’s assets and the conservatee begins experiencing harm in the process, considerable liability – and even criminal financial culpability – could result. 

If you have questions about the conservatorship process in California, please do not hesitate to contact the San Jose and Santa Clara estate planning attorneys at the Law Offices of Berge & Berge, LLP today: (408)985-9918. 


Friday, June 26, 2015

Basics of Conservatorship in California

I am concerned about my nephew, who has several special needs and medical issues. He is an adult, but does not have other family members to care for him or help him with finances. What can I do? 

Stepping up to fulfil the role of conservator for a beloved family member or friend is a truly selfless and caring act – however, there are a number of legal implications to consider. 

In California, conservatorship may be awarded to an eligible and qualified adult petitioner for the benefit of another adult who is incapable of managing his or her daily care and/or financial situation. The incapability may be due to a temporary situation or a permanent cognitive or health issue. There are generally two types of conservatorships available in California, which is explained more thoroughly below. Likewise, an interested individual must submit a petition for conservatorship in California probate court, which may invite unexpected objections from other family members. 

Types of Conservatorships in California

A probate conservatorship is the most common, and is governed by the laws of California’s Probate Code. Within this category are two sub-categories known as General Conservatorship and Limited Conservatorship. A General Conservatorship is often appropriate for an elderly individual experiencing mental incapacity, or a younger individual with impairments following a severe accident or illness. This arrangement is generally appropriate for the long-term, and allows a conservator to help the ward with daily living and financial issues. 

A Limited Conservatorship, as the name implies, is appropriate for a ward with a milder developmental disability who is able to care for his or her daily needs and finances to an extent, but may need assistance with more complex issues. This type of arrangement can be short- or long-term, depending on the ward’s needs – and the conservator’s role is much more limited in scope. 

Lastly, a Lanterman-Petris-Short conservatorship is available for the benefit of someone with a severe, irreversible mental illness requiring constant care, monitoring, and medication. These conservatorships are initiated by a government agency, and often under the strenuous objections of the proposed ward. If this is your situation, the county Public Guardian or Public Conservator may be able to help further. 

If you are facing a difficult situation with a loved one and would like to discuss your options under California’s conservatorship laws, please contact the San Jose and Santa Clara County estate planning attorneys at the Law Offices of Berge & Berge today by calling (408)985-9918. 

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