Author Archives: Adam Peck

A Conservatorship is a judicially created relationship whereby an adult has been given the authorization and responsibility to care for another adult. General Conservatorships can be three basic types: 1) Conservatorship of the person; 2) Conservatorship of the Estate; and 3) Conservatorship of person and estate.

Conservatorship proceedings usually start when a person is so incapacitated that he or she cannot manger his/her own affairs. The person who is the caretaker is called the conservator, and the person who is being taken care of is called the conservatee.

While a valid power of attorney document can authorize the power of attorney holder to accomplish certain of a conservator’s tasks, a cannot prevent the ill person from contracting, conveying property or marrying. For example, a patient with Alzheimer’s disease may become subject to fraud from unscrupulous persons. While he or she could have given a valid power of attorney while he or she was well, he or she may be befriended, may marry, and convey his or her property to a new spouse. In that situation, the probate code provides that a conservatorship may be established, and the conservator may ask the court to set aside any contract entered into by the ill conservatee. The advantage of the conservatorship is that it can safeguard against fraud against the ill person.

The conservatorship proceeding begins with a petition filed with the court, followed by an investigation by a court investigator and a court hearing. Many factors can affect a conservatorship. For example, if the conservatee objects to the conservator’s appointment, he or she may object and the court will assign counsel for the conservatee for that purpose.

A conservator of the estate is required to provide accountings that give details of the conservatee’ assets, and how the conservatee’s money was spend. Additionally, the court will require that the conservator of the estate to post a bond. The conservator is paid by the conservatee’s estate and the court supervises the reasonableness of the payments to the conservator.

If there are several person who have filed petitions to become the conservator for the conservatee, the court will decide who shall become the conservator. Preference rules exist for making such a determination.

A conservatorship must continue until the court orders the conservator relieved from his or her duties. This can happen if the conservatee dies; if the estate is used up; if the conservatee regains his or her capacity; and if the conservator becomes unable or unwilling to act. In the last situation, the court will assign a successor conservator.

Conservatorships are time consuming, expensive, and should only be used when absolutely necessary says California Elder Abuse Attorney Steven Peck. Candidates for conservatorship can be, although not limited to, those who suffer from Alzheimer’s disease, stroke, head injuries, Parkinson’s and other debilitating disorders. A conservator can petition the court for approval of appropriate Medi-Cal planning transactions such as purchasing a home in order to “spend down” the conservatee’s property on exempt assets.

When the Senior Center gets a report of suspected abuse, they refer it to the Department of Health Services for investigation. But, there’s not enough staff to deal with all these cases, especially since she says our population is getting older and economic resources are dwindling says California Elder Abuse Lawyer Steven Peck.

“Investigations don’t get completed as soon as we’d like them to or they would like them to and there aren’t enough services available to in essence fix the problem,” says Peck.

Elder Abuse and neglect don’t only happen in the home, though. They can occur in institutions like nursing homes, assisted living facilities, or by caregivers.

That’s when legal advocacy becomes necessary through the Peck Law Group Elder Law and Nursing Home Abuse and Neglect advocates.

But as the problems grow, concerning the care and neglect of Elders, those who see it everyday say more programs and educating seniors might be the only solution.

Plaintiff conservator won a $99,900 compensatory jury verdict against certain defendants, but only one defendant was found liable under the elder abuse statute containing a mandatory fee shifting provision against unsuccessful defendants. (Welf. & Inst. Code, § 15657.5(a).) Later, the trial court ordered the same defendant liable for elder abuse to pay attorney’s fees of $320,748.25. Defendant appealed the fee award.

It was affirmed in Conservatorship of the Estate of Ida McQueen, Case No A126825 (1st Dist., Div. 4 Jan. 14, 2011) (certified for partial publication on other issues, fee discussion not published).

Entitlement was not an issue, once the appellate court rebuffed merit challenges to the elder abuse verdict. Appealing defendant argued that much of the time spent by the fee requesting attorneys was expended on other defendants and other causes of action.

Allocation or apportionment, however, is a matter for a trial court’s discretion, especially where a common core of facts or legal theories are involved–as it was in the instant case. (Thompson Pacific Construction, Inc. v. City of Sunnyvale, 155 Cal.App.4th 525, 555 (2007); Drouin v. Fleetwood Enterprises, 163 Cal.App.3d 486, 493 (1985).) The lower court did not err in refusing to allocate given that the various claims were “factually intertwined,” making it impracticable to separate the conjoined activities into compensable or noncompensable time units. (Fed-Mart Corp. v. Pell Enterprises, Inc., 111 Cal.App.3d 215, 227 (1980).)