Probate & Conservatorships

In recent years, attorneys have been called on to fight the growing problem of elder abuse.  Elder abuse may take many forms, from mistreatment in a nursing home, to financial abuse by a caregiver or family member.  Elder Law attorneys can prepare documents to allow one or more persons to become the agent for an incapacitated or vulnerable senior.  The person who is in charge is usually referred to as an attorney-in-fact or agent, under a Durable Power of Attorney.  If the senior did not prepare these documents prior to being mentally incapacitated, then the Elder Law attorney may need to establish a conservatorship for the senior.  A conservatorship is a legal proceeding, similar to a guardianship, where another person becomes responsible for the senior.

In California we have two types of conservators:  a conservator of the person, who is responsible for the day-to-day decisions, such as where the person will live, and what health care will be needed.  The second type is a conservator of the estate, and this is the person who manages the money.  Conservators must report to the court on a regular basis as to the well being of the individual, and how they have handled the financial affairs.

For those persons who did not prepare any documents, upon their passing the Elder Law attorney may be called upon by the family regarding the transfer of the estate.

The legal process available for transferring assets is called probate.  A typical probate will take approximately six months, and many take longer.  If the estate is held only in cash assets, of less than $100,000.00, the estate may be transferred through a simpler method.  If the estate contains only real estate, there is a proceeding called a summary probate, which is a much faster process.