Attorney Helping With Various Future Planning Issues
When planning for your future and creating your estate plan, there are numerous legal issues that present tremendous complications and challenges. It is important to work with an experienced lawyer who can help you understand the choices you’re facing and help you make smart decisions for your future.
At the Law Offices of William M. Nassar & Associates Inc, we have decades of legal experience helping clients throughout the Inland Empire of California. We can help you with guardianships, conservatorships, powers of attorney and other critical life-planning legal instruments.
A guardianship occurs when the court orders a person other than a child’s parents to have custody of the child, to manage the assets the child will inherit, or both.
Guardianship Of The Person
A guardian has the same responsibilities to care for the child as a parent would. The guardian has full legal and physical custody of the child and is responsible for making all the decisions about the physical care of the child that a parent would make. A guardian can be a relative, friends of the family or any other person suitable to raise the child.
Sometimes a guardianship is needed when one or both parents are still alive but unable to care for their child due to a mitigating circumstance. A legal guardian is appointed by the court to care for a child when the parents are unable to.
Guardianship Of The Estate
A guardianship over the estate is set up to manage the assets (such as money or property) a child will inherit when they reach age 18. If one parent has passed away, the court will usually appoint the surviving parent to be the guardian of the child’s estate until they reach age 18.
Guardianship Of Both The Person And The Estate
The same person can be appointed as the guardian of both the person and the estate; however, the court may appoint different guardians for each.
Choosing A Guardian
For many parents, the most difficult part of planning an estate is selecting a guardian in the event that something happens to them. When appointing a guardian, the court will usually consider the guardian who was named by the parent(s) first, however, it may choose an alternate guardian if it is in the best interest of the child. There are a lot of considerations to take into account when selecting a guardian. You will likely need to discuss this at length with your spouse and with your prospective guardian(s).
A conservatorship occurs when the court appoints a person or an organization (the “conservator”) to care for an adult (the “conservatee”) who cannot care for themselves or manage their own estate.
A conservator may be responsible for the care of the person, for the management of the person’s estate, or for both the person and the estate.
A probate conservatorship is bound by the laws in the California Probate Code. There are two types of probate conservatorships:
- General – for adults who cannot take care for themselves or manage their own assets.
- Limited – for adults with developmental disabilities who cannot fully take care of themselves or manage their own assets. (The conservatee under a limited conservatorship does not need the higher level of care or assistance as would be necessary under a general conservatorship.)
When the court determines that the conservatee has immediate needs that cannot wait until a general conservator is appointed, it may appoint a temporary conservator for a limited period of time until a general conservator is chosen. A temporary conservator may be responsible for arranging for the temporary care, protection and/or support of the conservatee, and/or managing the conservatee’s estate (within certain limits).
Mental Health (“Lanterman-Petris-Short” or “LPS”) Conservatorships
An LPS conservatorship is used for the care of an adult with a serious mental health illness who needs special care. This type of conservatorship is only for adults who are severely disabled as a result of a mental illness listed in the Diagnostic and Statistical Manual of Mental Disorders. Examples of such conditions include schizophrenia, bipolar disorder and many others. The conservatee usually cannot or will not agree to specific living arrangements or treatments that are in their best interest.
This type of conservatorship must be started by a local government agency. It will last for a one-year period and must be restarted the following year should a longer timeframe be deemed necessary.
The LPS conservator must make decisions in the best interest of the conservatee. The conservator can be appointed to make decisions for the care of the person and for the management of the estate. The conservator can consent to mental health treatment and specific living arrangements for the conservatee, even if the conservatee refuses. The conservator can also consent to the use of psychotropic drugs as part of treatment, but the conservatee can refuse to take them if he or she is found to have the capacity to understand the situation and make the decision knowingly.
Powers Of Attorney
A power of attorney is a legal document that authorizes someone else to act on your behalf. The instrument creates an agency relationship between the principal (the person signing over the power) and the agent, or attorney in fact (the person receiving the authority).
There are numerous types of powers of attorney that are used for different goals. Powers of attorney can be used to give the agent decision-making authority in areas of finance, health care and other important areas.
General Power Of Attorney
As the name suggests, a general power of attorney is a general granting of authority to the agent to act on the principal’s behalf.
Durable Power Of Attorney
A durable power of attorney is durable, meaning it remains in effect even after the principal becomes incapacitated. This is distinguished from the general power of attorney which terminates upon the incapacity of the principal.
Limited Power Of Attorney
A limited power of attorney does not grant a general authorization to the agent, but rather an authorization that is limited in scope. The authority in a limited power of attorney is usually granted for one specific area of the principal’s finances, like handling tax payments or a specific real estate transaction.
Springing Power Of Attorney
The springing power of attorney is an effective tool in California. Most people do not want to hand over decision-making authority until they absolutely have no other choice. But if people wait until they are incapacitated, they will not have the requisite soundness of mind to make a legally viable transfer of this authority to an agent. The springing power of attorney solves both of these problems by only becoming effective in the event of the principal becoming incapacitated.
For all of these powers of attorney options, there are various pros and cons that should be discussed, and subtle nuances in drafting to make sure they will be legally effective. Attorney William N. Nassar can walk you through the process to make sure your needs are met and your interests are protected.
Contact Our Firm Today
It is important to talk with a lawyer to get a sense for whether you want to work together and to make sure you are comfortable with the representation you will receive. To set up a time to talk with our lawyer, call 866-204-7554 or email the firm today.