California Elder Law Questions & Answers

Q: Can my mother's husband's adult kids take property that's in her name from her through POA?

1 Answer | Asked in Estate Planning, Family Law, Elder Law and Probate for California on
Answered on Feb 3, 2019
Richard Samuel Price's answer
A power of attorney only allows the agent to make financial transactions for the principal, and it terminates at the death of the principal. Your mother's husband's will and how the assets are held will determine who gets the assets at his death, not his power of attorney.

Q: California Trustee has stopped all gifting to relatives, despite long history of gifting before dementia. What to do?

1 Answer | Asked in Estate Planning and Elder Law for California on
Answered on Jan 29, 2019
Jeffrey Louis Gaffney's answer
The answer is in the Trust itself. The Trustee is obligated to follow the instructions of the Trust.

The Trustee may not have any choice about making the gifts. At the death of the Uncle, the Trust may have become irrevocable with instructions about the Aunt if she becomes a Special Needs person, with severe limits about what the Trustee can do with the money. The Trustee may just be worried there isn't enough money left to care for Auntie.

If the Aunt is still able to...

Q: hi my name is tanya i take care of an 88 year old women. her daughter pays all her bills. i suspect fraud with sister

3 Answers | Asked in Criminal Law and Elder Law for California on
Answered on Jan 27, 2019
Gerald Barry Dorfman's answer
You do not need a lawyer in order to report suspected elder abuse. For Alameda County, see the webpage at: https://www.alamedasocialservices.org/public/services/elders_and_disabled_adults/protective_services.cfm or else just call 510-577-3500

Q: Is there a conflict of interest when a lawyer supports beneficiaries' efforts to dissolve his clients' irrevocable trust

1 Answer | Asked in Estate Planning, Elder Law and Legal Malpractice for California on
Answered on Dec 31, 2018
Joel Gary Selik's answer
Yes there is a conflict of interest, but it is the transferring of the asset that is the most immediate serious issue.

Q: Can POA be legally signed after a stroke affected half brain & paralyzed left hand for my son Great G-Mom to sign?

2 Answers | Asked in Estate Planning, Elder Law and Probate for California on
Answered on Dec 27, 2018
Richard Samuel Price's answer
Someone that signs a POA must have mental capacity. Although California law presumes that someone has mental capacity, certainly under these facts there is a doubt as to whether she had the required mental capacity. You can file for a conservatorship or sue to invalidate the POA. Unfortunately, most if not all of your options will require litigation. You need an attorney.

Q: Good Morning My father I see has been taken advantage by my brother and I'm in need of your advice.

1 Answer | Asked in Criminal Law, Estate Planning, Family Law and Elder Law for California on
Answered on Dec 10, 2018
Dale S. Gribow's answer
More information is needed to fully understand the facts and to give an accurate answer.

However, you are always best advised to retain a LOCAL lawyer. What city are you all in? In other words, you do not hire an LA lawyer for a case in Palm Springs or OC and visa versa...

This may be Elder Abuse but further info would be necessary....and it is not my area of law.

Is your dad competent to share the facts with a lawyer? Does he have any proof?

Q: Can the sell of a property be rescinded if an ivalid P O A was used and the buyer is not a bona fide purchaser?

1 Answer | Asked in Elder Law and Probate for California on
Answered on Dec 6, 2018
Sally Bergman's answer
Very likely yes, you can rescind, but it will not necessarily be an easy or inexpensive process if your brother, broker and the purchaser do not agree with you. For certain, you need to retain the services of a trust and estates litigation attorney and the sooner you do that, the better.

Q: How can I rescind the sell of a property?

1 Answer | Asked in Civil Litigation, Contracts, Elder Law and Probate for California on
Answered on Dec 6, 2018
Bruce Adrian Last's answer
Dear Los Angeles:

If what you say is true, that your Brother had you Mother sign a Power of Attorney knowing that your Mother lacked capacity, then this is a serious matter indeed. Particularly if there is an "inside" deal involved. The issues is that your Mother, as the property owner, holds the cause of action which her conservator would bring on her behalf. (Or, if there is no conservator, the court can appoint a guardian ad litem.)

You should consult with an attorney right...

Q: Can I force my older mother (with dementia) to choose someone for power of attorney?

1 Answer | Asked in Elder Law for California on
Answered on Nov 21, 2018
Sally Bergman's answer
You can never "force" anyone to choose a particular individual for a power of Attorney. The person who is choosing an agent for a power of attorney must freely, and while mentally capable, choose an individual they have complete faith and trust in to act in their best interests. This also means that if your mother's dementia has progressed to the stage where she no longer has mental capacity, she cannot create a power of attorney or any other legal document. In that event, unfortunately, a...

Q: My mom has alzheimers and changed her will without telling anyone. What should I do?

1 Answer | Asked in Elder Law for California on
Answered on Nov 2, 2018
Sally Bergman's answer
You should immediately consult an elder law attorney so that a formal determination regarding your mother's mental capacity can be determined. It is important that this be one as close in time as possible to the time when she changed the will. A diagnosis of Alzheimer's Dementia does not necessarily mean your mother does not have mental capacity as many continue to be very capable for many years.

Q: My wife has dementia, I have a POA. Can I sell our home to pay for her assisted living

1 Answer | Asked in Elder Law for California on
Answered on Oct 29, 2018
Sally Bergman's answer
A power of attorney properly executed by your wife at a time when she still had mental capacity should be sufficient to allow you to sell your home, although I would recommend you have it reviewed by an attorney before you get too far into a sale, only to find a title company unwilling to accept it. As well, you may want to consider consulting with an elder law attorney to evaluate other possible options other than selling your home. There are many different factors to consider.

Q: In what types of situations would setting up a special needs trust benefit someone recently diagnosed with Alzheimer's?

1 Answer | Asked in Elder Law for California on
Answered on Oct 20, 2018
Sally Bergman's answer
The (well) spouse of a person with Alzheimer's (ill spouse) should establish a testamentary special needs trust through his/her will to protect the ill spouse in the event the well spouse dies before the ill spouse. These types of trusts between spouses can only be established through a will. Any other type of special needs trust cannot be established once the ill spouse reaches age 65.

I do encourage families who have received this diagnosis to sit down with an elder law attorney...

Q: How to become my moms legal Gaurdian at her request am already her dopa

1 Answer | Asked in Family Law and Elder Law for California on
Answered on Oct 12, 2018
Carol A Fauerbach's answer
A "legal guardian" for an adult is referred to as a conservator. If your mom has already designed you as her agent through a durable power of attorney and advanced healthcare directive, and these documents are sufficient to allow you to handle her finances and make medical decisions on her behalf, then you may not require a conservatorship. However, if you find that these documents are not sufficient, your mom may lack capacity to amend those documents and a conservatorship may be needed. If...

Q: In California - if a party has filed an Amended Cross-Petition, how long does one have to respond?

1 Answer | Asked in Elder Law and Probate for California on
Answered on Sep 28, 2018
Richard Samuel Price's answer
When the petition is filed, the court will set a hearing date. You can file an objection at any time before the hearing. Or at the hearing, you can orally object and then the court should give a deadline for you to file written objections.

Q: BONA FIDE PURCHASER SCAM: If 5 people got together and expedited this scam, what is the legal term that describes it?

1 Answer | Asked in Elder Law for California on
Answered on Sep 26, 2018
Sally Bergman's answer
There's no question that you need to immediately contact an elder law attorney who handles financial elder abuse matters. I can't imagine that a title company ever insured title on all of these transactions.

Q: Do nursing homes have to be licensed to operate in California?

1 Answer | Asked in Elder Law for California on
Answered on Sep 22, 2018
Sally Bergman's answer
Nursing homes are highly regulated in California. There are several different types of licenses, depending upon the type of facility it is. For example, skilled nursing facility, assisted living, board and care, etc. You can find a lot of very useful information and resources at California Advocates for Nursing Home Reform at www.CANHR.org.

Q: How to prosecute a homeowners association president for embezzlement bank fraud and falsification of accounting record

1 Answer | Asked in Civil Litigation, Criminal Law, Real Estate Law and Elder Law for California on
Answered on Sep 21, 2018
Dale S. Gribow's answer
More info needed.

I try to do whatever I can to cut legal fees since what u r proposing is civil which usually means hourly fees.

Get police and DA involved so gov’t pick up costs.

Then you can get info through discovery from them.

OR get your homeowner’s Assoc E and O coverages involved and do on their dime

Q: My sister PoA had my mother into remove me from her trust, just after her home was sold. She then reinvested in her name

1 Answer | Asked in Civil Litigation, Elder Law and Probate for California on
Answered on Aug 28, 2018
Richard Samuel Price's answer
You don't have the legal standing to sue on any change of the trust while your mother is living. You will have to sue your sister after your mother passes for elder abuse, undue influence, or any other causes of action that you may have.

Q: WHAT TYPE LAWYER FOR MY CASE?

1 Answer | Asked in Elder Law for California on
Answered on Aug 18, 2018
Sally Bergman's answer
Sir, please try to delete your personal information from your question as it is not appropriate for any attorney here to contact you directly. You need to look for an attorney here and then contact them.

It does sound as though your son is attempting to establish a conservatorship over you, although I'm not clear how far that process has progressed. If so, the court will appoint an independent attorney to represent you, although you are always free to retain your own. There are some...

Q: my brother, the executor of my parents trust is sueing me 4 elder abuse & have me disinherited, i have no money 4 lawer

1 Answer | Asked in Elder Law and Probate for California on
Answered on Aug 16, 2018
Bruce Adrian Last's answer
Dear Oakland:

I take your question to be looking for an attorney to represent you on a pro bono basis, as it does not ask a legal question.

If you need assistance on finding an attorney, you might try your local county bar association. Most county bar associations operate an attorney referral services, and some include referrals for pro bono, moderate means, and other assistance for low income individuals.

More information on the Alameda County Bar Association's referral...

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