San Diego Estate Planning Lawyer Blog

Currently there is a feud going on involving two of Walt Disney’s grandchildren and their share of the huge Disney fortune. Walt Disney died in 1966 leaving two daughters and 10 grandchildren. One of his daughters Sharon Disney had married and then divorced a real estate developer named Bill Lund who located and assisted in the purchase of the land which became the Disney World site. Sharon and Bill had two children Michelle and Brad. Sharon created an estate plan to leave her share of the Disney fortune to her two children from her marriage to Bill and one child from a previous relationship. She made her ex-husband as one of the four co-trustees of the childrens’ trusts. The trustees were to determine whether the three children were competent to receive the monetary distributions at ages 35, 40, and 45 and the yearly payments of income. The disbursements were approximately $20 million per child every five years.

To complicate everything, Sharon then died and her ex-husband remarried. Then in 2009 Michelle, Sharon and Bills’ daughter, suffered an aneurysm and her father began caring for her as the trustee of her trust. Family members sued in court to remove Bill claiming that he was trying to isolate her from family and friends and take over her estate. As time went on, the other co-trustees of Michelle’s trust also filed petitions in the probate court to remove Bill as a co-trustee. Eventually Bill agreed to resign as trustee in exchange for significant yearly payments.

The drama continues over the Disney fortune because Brad, the son of Sharon, is developmentally disabled and needs a conservator to manage his affairs. Michelle, his sister, does not believe that her father Bill and his new wife should be managing Brad’s estate. The huge attorneys fees are draining the estate.

Such family feuds that are occurring in the Disney family occur even in non-wealthy families. What this illustrates is that even with careful estate planning, there can be court battles. Beneficiaries file petitions to remove a trustee for not doing his job properly. Family members disagree as to who should be the conservator of a developmentally disabled beneficiary or a beneficiary who is incapacitated.

The attorneys at Scott C. Soady, A Professional Corporation handle all of the issues that are involved in the Disney estate: conservatorships, representation of beneficiaries, trust litigation including petitions to remove an existing trustee, and other estate planning issues that are involved when beneficiaries disagree about the trust distributions. If you need assistance, we always offer complimentary consultations on any estate planning issue.

Petitioning the probate court to be appointed the conservator of someone’s person or estate may be necessary when an individual has become legally incapable of taking care of himself or unable to handle his finances, and has not created a durable power of attorney for finances. The majority of the time, conservatorships are not contested and granted upon a showing to the court that the proposed conservatee is incapacitated and unable to manage their personal or financial affairs. Sometimes, however, conservatorships are contested.

Family members may disagree as to who should be the conservator. Sometimes the proposed conservatee has a lawyer and wants to contest the granting of the conservatorship. Other times the contest arises simply because of miscommunication among family members who may not understand what it means for an individual to be conserved.

Contested guardianships are similar to conservatorships in the sense that the majority of the time they are not contested. Like conservatorships, family members can fight about who would be the best guardian for minors who have lost their parents or minors whose parents cannot take care of them. If there is no agreement, then a trial may become necessary before a probate judge.

Both contested conservatorships and contested guardianships can be emotional and sometimes embarrassing when they play out in a courtroom. The courtroom can be a battleground for the “he said- she said” and avenging of perceived wrongs, whether large, small, real, or imagined. Often there is not a “winner.” The judge will determine who should be the conservator or guardian but no one comes out a “winner” when the family has to go through such turmoil.

Both of these types of cases often can be resolved with mediation. Mediation provides an opportunity for all parties to express their opinions, feelings, etc. and a mediator can often guide the parties to remember that the real issue is the welfare of the conservatee or the minor. Mediation is not done in a courtroom but in a neutral setting, usually the mediator’s office. It is voluntary and confidential with the goal being for all parties to express themselves and resolve the conflict between them.

The estate planning lawyers at Scott C. Soady, A Professional Corporation can assist you with your contested conservatorship or guardianship matter, whether it be through mediation or a trial in the probate court. Call us if you would like to schedule a complimentary consultation.

Coming up next week is National Autism Day which was established to raise awareness about autism. Wear blue to show your support.

The incidence of autism is on the rise with approximately 1 in 110 children in the United States being diagnosed with the disease, according to the Center for Disease Control and Prevention. Autism is a developmental disorder which affects social and communication skills and sometimes motor and language skills.

From an estate planning perspective, here are come things to consider if you have a child with autism. Many people with autism receive government benefits. Failure to have a will or trust that incorporates a special needs trust or a stand alone special needs trust can jeopardize your child’s ability to receive government benefits when you die.

1. A Special Needs Trust. A special needs trust is one that is designed to manage inheritances and other resources while maintaining the child’s eligibility for such public assistance benefits as Medi-Cal and SSI. The trust is usually created by the parent, grandparent, or other person to benefit the beneficiary. If drafted properly, the SNT provides for benefits to the beneficiay without affecting their eligibility. The Trust holds title to the trust property rather than the child so the assets do not belong to the SNT beneficiary and the beneficiary can never be the trustee with any control over the assets. The Trust can provide for such needs as transporation, education, rehabilitation, medical appliances, computer equipment, and a higher degree of medical or dental care than what the beneficiary is getting through public benefits.

2. Be aware of cash bequests to special needs children. If grandparents or other family members want to help while they are still living, they cannot give the child a cash bequest because it might disqualify the child from receiving governmental assistance benefits. Custodian accounts set up in the child’s name can affect their eligibility for public assistance as can 529 Plans for their education. Making a special needs child the beneficiary of a life insurance policy can also affect the child’s eligibility. Therefore parents of special needs children need to alert family members who may be thinking of making gifts or making the child the beneficiary of their trust, IRA, or life insurance policy.

3. A Limited Conservatorship. A limited conservatorship is similar to a regular conservatorship but it is limited to reflect the needs of an individual who has developmental disabilities. California law provides that a limited conservator may be appointed for those individuals with developmental disabilities that prevent them from performing some tasks necessary for their personal needs or management of their finances. Autism is a condition that may make a limited conservatorship appropriate.

Watch for our next blog with more specific information about special needs trusts.

In the last blog, we discussed the duties of a conservator of the person. As the conservator of the estate of an individual, you also have duties and responsibilities.

Basically the conservator of an estate acts similar to a trustee. The conservatee's "estate" is all the money and property owned by the conservatee. The conservator must inventory all of the assets of the estate and have them appraised. The conservator must file an Inventory and Appraisal describing the property and its value. The conservator must determine what income the conservatee is receiving each month. If the conservatee has some investments, the conservator will have to evaluate each investment and determine if it is a wise investment or whether some other investment would be more advantageous for the conservator. Although you have the obligation to manage the assets, you cannot make risky investments. You also must keep the estate's money and property separate from yours or anyone else's.

The conservator also has to make a decision as to where the conservatee will live. It should be the least restrictive place and should be appropriate, safe, and comfortable. If the conservatee is in a residential care facility, you may have the duty of taking care of the conservatee’s home, and renting it if the conservatee is moved to another place. You also pay all the bills for housing, food, clothes, transportation, and medical care. The conservator of the estate is also the person responsible for filing taxes.

When you have been appointed by the Court to be a conservator of the estate, the Probate Court requires that you keep track of all the income the conservatee is receiving and all of the expenditures made on behalf of the estate. A checking account should be set up in the name of the conservatorship. Detailed records have to be kept, documenting each expense with receipts, and filing an accounting with the court after you have been acting for a year. Thereafter you have to file an accounting every 2 years. You will also have to file a final accounting once the conservatee has passed away or the conservatorship otherwise terminated. If the conservatee dies, you the have the duty of distributing the assets of the estate.

Scott C. Soady, A Professional Corporation can help you petition the court to be a conservator of the person or the estate and help you through the process which often can last years. Contact us with any questions about conservatorships or to schedule a complimentary appointment.

If you have been nominated and approved by the court as the conservator of the person of another individual, you have certain duties and responsibilities.

As the conservator of the person, it will be your responsibility to see to the personal needs of the conservatee. One of these needs is the living arrangements for the conservatee. This may be the conservatee’s own home with caregivers, an assisted living facility, or a locked facility that specializes in patients who have Alzheimers or other memory issues. The conservatee has been adjudged to be incapable of taking care of himself, so it is your duty to select an environment that is safe, physically and emotionally. You also are responsible for seeing that the conservatee has clothing, food, and medical care. This may mean purchasing clothes and hygiene items for the conservatee, grocery shopping if the conservatee is living in his or her own home, and seeing that the conservatee gets to doctors’s appointments. It also can involve transporting the conservatee and seeing that the conservatee has recreational activities. If there is a separate conservator of the estate of the individual, you have to work with the conservator of the estate since that person will be approving the expenses and paying the bills.

You also have ethical obligations to the conservatee. You will have to respect the wishes of the conservatee and realize that even a conservatee has the right to make or change a will, get married, and have a lawyer. If possible, you should consult with the conservatee about decisions you are making and make efforts to promote independence. Medical treatment should be in keeping with the conservatee’s wishes if he or she is able to communicate their preferences. The court will also require that you periodically file a Level of Health Care Plan outlining where the conservatee is living, how the person's needs are being met, and whether the environment in which the conservatee is living is the least restrictive in view of the circumstances.

A great resource for any conservator is the Conservator’s Handbook which you can purchase from the San Diego Probate Court. It is also available online. Every situation that could arise while acting as a conservator is addressed in detail.

If you are contemplating petitioning the court to be someone’s conservator, the estate planning lawyers at Scott C. Soady, A Professional Corporation can assist you and answer any specific questions you may have pertinent to your situation.

A fiduciary is an individual who acts in a position of trust such as acting as a guardian of estates,conservator of estates, personal representative of estates, or as an agent under powers of attorney.

A fiduciary as a trustee of a trust has the responsibility of administering the trust as set forth in the trust document, including safeguarding the trust assets, investing assets, accounting to the beneficiaries, and distributing assets as the trust document provides.

A fiduciary can also act as a conservator of an estate of the conservatee, where they are responsible for protecting and managing the conservatee's asset, receiving income, paying bills, and filing tax returns. The duties of a fiduciary acting under a power of attorney are similar. All are positions which require a high degree of honesty and integrity,

Last week in Federal Court in San Diego, a private professional fiduciary pled guilty to wire fraud and money laundering, admitting that she misused her position as a court-appointed professional trustee to steal trust funds from conservatorships, family trusts, and estates. It is estimated that she bilked as much as $2.5 million from accounts between 2006 and January, 2011.

To avoid being a victim of abuse by another who is acting as a fiduciary, make sure you choose an individual who is honest and trustworthy and if you select a private professional fiduciary, make sure that individual is a member of the Professonal Fiduciary Association of California and is licensed with no disciplinary actions filed with the California Professional Fiduciary Bureau. This did not help the victims of the fiduciary recently indicted, however, as she was a member of the Professional Fiduciary Association of California and had no disciplinary record.
Report suspicious activity on the part of a professional fiduciary to the Dept. of Consumer Affairs. For assistance determining is there is abuse with a private individual acting as a trustee or in other fiduciary role, contact us at Scott C. Soady, A Professional Corporation for a complimentary consultation.

A probate conservatorship often becomes necessary when an individual cannot take care of himself or handle his own finances. A petition has to be filed in the San Diego Probate Court, usually by a family member, seeking to become a conservator of the person or the estate. The conservator of a persons makes decisions about where the conservatee will live, health care, food and recreation. A conservator of the estate is the individual handling the financial affairs of the conservatee. Establishing a conservatorship is costly, sometimes contentious, and often not necessary.

There are several ways that a conservatorship can be avoided. One way a conservatorship can be avoided is to create a living trust. When you create a revocable living trust, you designate someone to act as successor trustee of your trust if you become incapacitated. You also execute a durable power of attorney and health care documents which designate someone you trust to act as your agent in case of incapacity. Even if you don’t have a trust, you should obtain a durable power of attorney and health care directive. Young adults, newly married individuals, and anyone else that can’t afford a trust or doesn’t have the assets to warrant a trust, should at least execute these two documents. These documents prepared in advance of any incapacity, can avoid court intervention.

If the only reason a conservator is needed is for a family member to have access to social security, disability benefits, etc. a family member can ask the agency to allow them to act as a representative payee and therefore a conservatorship is not needed. Federal agencies which allow this to be done are the Social Security Administration, VA, and Dept. of Defense. You must explain why a payee representative is necessary and provide a doctor’s statement explaining the incapacity.

California Probate Code §3100 also may be used in some cases. This section allows a spouse that does have capacity to petition the probate court to be able to make a decision or transfer a community property asset for the spouse that lacks capacity. Often this arises in the context of qualifying for Medi-Cal.

If you need to plan in advance for incapacity, contact us at Scott C. Soady, A Professional Corporation. We can help you understand if there are alternatives to avoid a conservatorship or if conservatorship does become necessary, we can assist you with filing the necessary paperwork to be appointed conservator of the person or the estate.

There are several types of conservatorships, one of which is a limited conservatorship. These types of conservatorships are set up for an individual who is developmentally disabled and unable to provide for his or her personal needs and/or financial affairs. Developmental disabilities include such conditions as autism, cerebral palsy, and mental retardation that was diagnosed before the individual's 18th birthday.

Many disabled people can do certain things on their own and do not need a regular conservatorship. With a limited conservatorship, the Court has the authority to give the conservator some or all of the following limited powers: determining where the conservatee will live, giving or withholding of medical treatment, determining the ability of the conservatee to contract, controlling social and sexual relationships, giving or withholding of consent to marry, and making decisions about education. The limited conservator also can be granted the authority to see the conservatee's private papers and records and manage their finances.

Limited conservators are usually the parents or siblings of the conservatee but the Court can appoint other interested persons who petition the Court. Once a conservator is appointed, he or she will take care of the conservatee's food, shelter, clothing, and medical treatment and if appointed conservator of the estate of the conservatee, will also manage that person's assets, collect income, and pay the bills.

In San Diego, the San Diego Regional Center is notifed of the petition for limited conservatorship and will conduct an interview and prepare a report for the Court. In addition, the court appoints an attorney for the proposed conservatee to protect his or her interest.

Once the limited conservatorship is established, it is supervised by the Court, within one year of the appointment and thereafter, every two years. Limited conservatorships can be terminated if the conservatee dies or the conservatee becomes able to take care of himself.

For more information or to schedule an appointment for a limited conservatorship, please contact us. Your intitial consultation is complimentary.

There are 3 types of probate conservatorships that can be obtained in the San Diego Probate Court. The first is the general conservatorship of a person where the Probate Court gives a responsible person (the conservator) the ability to take care of another person (the conservatee) or to manage someone’s financial affairs. With a conservatorship of the person, the conservator takes care of the conservatee's health care, housing, food, clothing, and other personal needs. A conservatorship of the estate pays the conservatee's bills, taxes, asssets and manages other aspects of finances.

A limited conservatorship is one that is set up for a developmentally disabled adult. If an adult with developmental disabilities is unable to care for himself or herself or their property in certain ways but not to the extent of needing a regular conservatorship, a limited conservatorship may be appropriate. The difference between a limited conservatorship and a general conservatorship is that a limited conservatorship is only available to adults with developmental disabilities. This could be something like autism, a brain injury at birth such as cerebral palsy or mental retardation, or other disability that arose before the age of 18, which is expected to continue indefinitely and constitutes a substantial handicap. The handicap could be in the area of self-care, receptive and expressive language, learning, mobility, self-direction, capacity to live independently, or economic self-sufficiency. Some of the powers that can be granted to the limited conservator are the power to decide living arrangements, the power to a sign a contract, and the power to make decisions about education or health care.

A third type of conservatorship is one under the Lanterman-Petris-Short Act for persons who are gravely disabled. “Gravely disabled”means a person, who as a result of a mental disorder or chronic addiction is unable to provide for their personal needs for food, clothing, or shelter. Usually this type of conservatorship is necessary for an individual who is seriously mentally ill or needs specialized care.

The process of establishing a conservatorship can be complicated and lengthy. If you need help with your conservatorship matter, feel free to call Law Office of Scott C. Soady, A Professional Corporation for a free consultation.

In December 2008, Peter Falk’s daughter petitioned the court in Los Angeles county to become the conservator of her father. Falk, noted for his role of Columbo on TV, has apparently been diagnosed with Alzheimer’s disease and dementia. His daughter Catherine claims her father requires full time custodial care for his health and safety and is unable to take care of his finances. The Los Angeles court appointed an attorney to evaluate Falk who has filed a report saying there is no grounds for a conservatorship. Falk’s wife of 32 years also opposes the conservatorship.

Conservatorships are probate proceedings where a judge appoints a responsible person called a conservator to care for another adult who cannot care for himself or herself or handle his or her finances. Any person who wants to be a conservator can petition the court to become the conservator. Usually it is the individual’s spouse or other relative although it can be a friend or even a state or local agency. The court will not grant a petition for conservatorship if there are other ways to meet an individual’s needs such as with a durable power of attorney, a spouse that can handle the care and finances, or a revocable living trust in place.

It will be interesting to see what the L.A. probate court does in the case of Peter Falk. Another hearing on the matter will be held soon. If you have questions about conservatorships or how to avoid them, call the experienced estate planning lawyers at Law Office of Scott C. Soady, A Professional Corporation for a complimentary consultation.

The San Diego County Courts hear many cases where a conservatorship is sought of an individual’s estate or person. When an individual cannot take care of his or her financial or personal affairs, it may be necessary to have the probate court appoint a conservator of the estate or of the person. A conservator of the estate is responsible for handling the finances of the conservatee. The individual appointed has broad powers to manage assets, write checks, make investments, etc. A conservator of the person is an individual appointed to make decisions about the conservatee’s personal needs such as health care, residence, food, clothing, etc.

A conservatorship can be an expensive process and may not always be necessary. Before the court appoints a conservator for an individual, it must be shown that no other alternatives are available to the proposed conservatee. These alternatives are durable powers of attorney, trusts, or the voluntary acceptance of assistance.

1. A power of attorney is a written document whereby one person (the principal) appoints another ( the agent) to act on his behalf upon incapacity. Powers of attorney for finances and for health care may provide a viable alternative to a conservatorship.

2. If the individual had a properly prepared revocable living trust, the successor trustee can step in and manage that individual’s affairs if the trustor becomes incapacitated. This needs to be done in advance of the incapacity however. Once the proposed conservatee lacks capacity, a trust cannot be created.

3. If the person who needs help with personal decisions will accept the help of relatives or friends about such things as medical care, food, clothing, and shelter, a conservatorship of the person may be avoided.

For more information about setting up a conservatorship or avoiding one by the preparation of a revocable living trust, contact us at Law Office of Scott C. Soady, A Professional Corporation.

If you live in San Diego, there is a lot of free information available to you on a variety of legal issues. Here are some “clicks’ that may answer many questions you have:

1. Our website at Law Office of Scott C. Soady, A Professional Corporation has many articles in the area of estate planning and divorce. Our estate planning blog has current postings as well as archived postings going back to 2002.

2. The San Diego County Clerk/Recorder's office has information on its website about recording documents and you can also download samples of commonly used forms such as affidavits of death, grant deeds, quitclaim deeds, property tax exemption forms, and preliminary change of ownership forms. You can access information about your property tax bill or download an application to lower your propery taxes. You can also check the Grantor/Grantee index online for deeds and other recorded documents and order copies on line or pick them up at one of the offices in Kearney Mesa, San Marcos, downtown, Chula Vista, or El Cajon.

3. The California Courts Self-Help Center has information about how to find lawyer referral services, where all the courts are located and their calendars, and frequently asked questions about a variety of topics. There is information about small claims court, conservatorships, elder abuse, landlord/tenant issues, divorce, and traffic tickets. You can even download the Judicial Council legal forms and get information on how to fill them out.

4. At the California State Bar website you can find a lawyer, look up a specific lawyer’s disciplinary record, and get basic information about a number of legal topics. Consumer pamphlets are available on all sorts of topics such as estate planning, probate, small claims court, getting arrested, minors and the law, seniors and the law, and divorce and child custody.

If you need information on estate planning issues, remember Law Office of Scott C. Soady, A Professional Corporation offers a free in-house consultation. E mail us or call us with a question or to set an appointment.

In San Diego, California, we have two probate courts: San Diego in the Madge Bradley Courthouse and in Vista at the North County Courthouse. For your convenience, included in this article is a link to the probate court page for the San Diego Superior Court website.

In Los Angeles, California, Britney Spears case was transferred from a Commissioner to a Judge due to an objection by one of the parties in a recent article. In San Diego, this is also the procedure and if one of the parties does not agree [stipulate] to the Commissioner hearing the case then it is transferred to a Judge. In San Diego, there is a form which is normally signed by all parties prior to the case proceeding.

Our law firm of Law Office of Scott C. Soady, A Professional Corporation, LLP can assist you with your conservatorship, probate and estate planning needs. Please feel free to call or e mail our firm

In San Diego, there are many conservatorship cases. These are heard in the San Diego Probate Court. In the case of Britney Spears, since she lives in Los Angeles, her case is heard in the Los Angeles Probate Court. This case highlights the need for an experienced and competent attorney in the area of conservatorship. Our law firm of Law Office of Scott C. Soady, A Professional Corporation, LLP, can assist with this. Please e mail or call us to set up a complimentary and confidential appointment.

In a recent article in People, the issue of attorney fees and costs was discussed. In addition, the conservatorship is reported until July 31, 2008. In Probate Court, there can be many hearings and necessary pleadings. The attorney fee and cost award was $58,000. In addition, the Court ordered a payment of $2,500 for the father of Britney Spears as the conservator and also that she cannot leave California without permission from the Court or her father.

Conservatorship cases can be very complicated and this case is an illustration of the costs, fees and powers which a Court has over a person who is declared unfit to care for themselves.

San Diego has similar proceedings to Los Angeles in regards to conservatorship. Britney Spears, last week, had her father and attorney appointed as a conservator. This was in the Los Angeles Superior Court and the process of filing for temporary conservatorship is a complicated and complex procedure. Our firm of Law Office of Scott C. Soady, A Professional Corporation, LLP can assist with the preparation of these pleadings and represent you if your relative is in the same position as Britney Spears.

A conservatorship can be of the person or of the estate. Conservatorship of the person is for making decisions regarding housing, medical care and others which are needed when a person is incapable of making these decisions for themselves. Conservatorship of the estate is for making financial decisions. In the case of Britney Spears, this means control of her entire financial empire as she has many assets and debts. Normally a bond is necessary for the conservatorship of the estate. For your convenience, a link has been placed to a company which issues bonds for San Diego, California.

In San Diego, California, there are only a limited number of courts in which a conservatorship action can be brought properly. It is essential to consult with an experienced and competent attorney as was done in the Brittany Spears case. If you have any questions regarding a conservatorship please call our office directly. Please feel free to e mail us as well