Do You Need Information About Legal Guardianship

If you would like to have legal guardianship over an incapacitated individual, you need to petition the probate court that has jurisdiction regarding your case. The probate court that serves the area where the person you want guardianship over resides is the court with jurisdiction.

There are many reasons why you might want guardianship over an individual. Perhaps the person is not capable of taking care or him or herself. In many cases children of elderly parents petition the court for guardianship over their parents who are no longer to care for themselves.

As the legal guardian, you will be responsible for that persons well being. You will have to make living arrangements that are the least restrictive possible. You cannot simply place that person in a nursing home when the person is able to live an assisted living facility.

You will need to make sure the person is receiving the proper nutrition. You will be responsible for his or her medical care. That is, you must make sure that he or she visits the doctor regularly, and that his or her medication is available.

Of course if you are asking for guardianship for a loved one, then you will naturally take good care of the person you are responsible for. But you do need to demonstrate to the court that you are capable of this responsibility before the court awards guardianship.

Your care will also be subject to regular court review. You will have to provide documents and other evidence demonstrating that you are providing proper care and that you are respecting the requests of legally incapacitated person.

In some cases the court will have to appoint an emergency guardian. This need could arise if someone is severely injured in an accident and cannot care for himself. This could be a temporary situation until that person recovers and resume normal responsibilities. Even though this is an emergency court appointment, the guardian is still under the legal duty to provide the necessary care required under the law of guardianship.

When you apply for guardianship, you will need to include in your petition medical records detailing that persons incapacity and also sworn testimony of interested parties who agree that you should be appointed legal guardian by the probate court. The court will appoint an objective person to meet with the incapacitated person in order to evaluate that persons capacity regarding your request for guardianship. Once you are approved you will have legal guardianship over the incapacitated person.

The information you obtain in this article is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

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Elder Law - Conservatorships

This brief article describes conservatorships in California. In general, a conservatorship is established over an adult, while guardianships apply to minors.

There are generally two kinds of conservatorships: over the person and over the estate. Many times, one conservatorship case includes both types.

To establish a conservatorship over the person, the court must find that the proposed conservatee is substantially unable to provide for their food, clothing and shelter. The petition to create a conservatorship is usually filed by a loved one or family member who recognizes the elder's inability to provide for these personal needs. In Riverside County, California, for example, the petition may be filed by the Public Guardian's Office when no family member or other interested person is available to assist.

A conservatorship over the person should occur only when no reasonable alternatives are available. A future article will discuss such alternatives, but these include informal assistance from loved ones and powers of attorney for health care decision making. Sometimes, an elder unquestionably needs assistance but will not voluntarily agree to accept it. Their deteriorating mental faculties prevent them from recognizing the need and they simply refuse any help.

When the court orders the establishment of a conservatorship over the person, it will appoint a conservator and grant that person the authority to make all necessary decisions to properly provide food, clothing and shelter for the conservatee. Often, these powers will also include the authority to make medical decisions.

To establish a conservatorship over the estate, the court must find that the proposed conservatee is substantially unable to make sound financial decisions or to resist fraud or undue influence. The circumstances necessary to show this condition usually involve an elder who fails to timely pay bills, open the mail, or respond to bank notices. A conservatorship over the estate can also be necessary when a perpetrator manipulates an elder and wrongfully takes money or property.

Alternatives to a conservatorship over the estate must also be explored. If the elder still possesses legal mental capacity, then a financial power of attorney can be created that provides a trustworthy agent the authority to assist with banking needs, bill payment and other financial decisions.

When the court appoints a conservator of the estate, then that person will be granted all powers necessary to marshal the elder's assets, receive income and make disbursements - all in accordance with the reasonable steps required to care for and maintain the elder's estate.

It is not necessary that the conservator live in the same county or state as the conservatee. Logistically, this would be the preferred choice. However, the court recognizes that the conservatee's family members may not live nearby but would still be the best choice to carry out the conservatorship duties on behalf of their loved one.

The court will require certain periodic reports and accountings by the conservator to make sure that all tasks are being performed for the sole benefit of the conservatee. This ensures that the conservator does not take advantage of the elder and allows the court to make recommendations when necessary.

Conservatorships are often a necessary legal procedure to assist those who can no longer sufficiently care for themselves. An elder law attorney can assist to make the process as easy to navigate as possible.

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Administrator Duties For Probate Estate Management

Acting as the Administrator for probate estates encompasses many duties ranging from making burial arrangements to dispersing inheritance assets. Two types of probate estates exist; testate and intestate. Testate means decedent's executed a last will and testament. Intestate refers to estates where no Will exists.

Being an Administrator can be a difficult and time-consuming task. This is particularly true when administering the estate of a spouse or direct lineage relative. In addition to coping with personal grief and administration responsibilities, personal probate representatives must also cope with grieving heirs.

With testate estates, Administrator's are appointed within the Will. When decedents die without executing a last will, a probate judge will appoint an estate executor. In most cases, judges will appoint the surviving spouse, adult children or relative. If family members are unwilling to fulfill estate duties, a probate lawyer or estate planner can be appointed to the role.

Most probate executors require legal assistance with filing documents and transferring financial holdings. This is especially true when real estate is involved or if heirs contest the Will. It is a good idea to retain the services of a neutral third party to manage estate holdings when family strife exists.

Will administrators receive compensation for estate management duties. Administrative fees are based on state probate laws and can be paid as a flat fee, hourly wage or percentage of estate value. While family members might feel awkward about receiving payment for services rendered, it is important to understand that settling an estate can require hundreds of hour's worth of work.

Common estate administration duties include: taking inventory of estate assets; obtaining property appraisals; sending out creditor notices and paying outstanding debts; managing real estate and financial portfolios; contacting government agencies such as Medicare, Social Security or Veterans Administration; filing the decedent's last will and death certificate through the probate court; filing a final tax return; and distribution of inheritance assets to heirs.

If designated probate executors are unable to take on administrative duties, they can submit a request to the court seeking dismissal. The judge will confirm another Administrator and submit appropriate documents to record the change through the court.

When executing a last will and testament, it is a good idea to appoint a first and second Administrator. If the primary executor is unable to fulfill estate duties, the second executor can quickly take over without the need for a court confirmation hearing.

The probate process begins when the decedent's death certificate is filed. Probate usually lasts between three and nine months. Much depends on court caseload, validity of the Will, value of the estate, and how well family members get along. If relatives decide to contest the Will, probate can be suspended for months or years.

Certain strategies can be implemented prior to death to avoid probate. It is strongly recommended to consult with a probate lawyer or professional estate planning service to determine which strategies will offer the most protection. Trusts are a popular choice and are used to avoid inheritance taxes. Several types of trusts exist including revocable and irrevocable trusts and life insurance trusts.

When choosing the Will administrator it is best to discuss this decision beforehand. While you may feel they are the most qualified to handle estate duties, they may have no desire to manage your estate or have obligations that would prevent them from taking on additional responsibilities.

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The Uncontested Divorce: Pros And Cons

Most divorces nowadays are uncontested. It's far less expensive, time consuming, and allows both sides to end their marriage on good terms. It's also better particularly if children are involved, as they won't have to witness a year long battle in court over who gets custody. The following discuses the advantages and disadvantages of this divorce in greater depth.

Advantages

As mentioned, the uncontested divorce will save both spouses a lot of money. And for many, this is probably what's most attractive about it. Contested divorces last a lot longer, and both parties really have no choice but to hire lawyers. Over the course of six months to a year, the fees will really add up and cost a small fortune. Uncontested divorces can be completed only spending hundreds of dollars, as opposed to the thousands you will have to spend going to court. Both sides will certainly benefit from the money saved.

The benefits of an uncontested divorce are intangible as well. Contested divorces are often get ugly between both sides. Fighting it out in the courts for a year will only make the relationship between the two spouses worse. And the children will ultimately suffer that much more. An uncontested divorce however allows both sides to work together and compromise. This of course doesn't mean that there won't be tense moments, but the process is much quicker and not nearly as hostile.

You will always be connected to your spouse if you have children. So it's in the best interest of both sides to have a relationship that's on good terms.

As mentioned, an uncontested divorce will likely not be without it's rocky moments. Let's face it, a breakup is never completely smooth no matter what. But as long as both sides desire to go uncontested, then chances are good that all the terms will be agreed upon.

Going the uncontested route may not always be feasible, particularly if one spouse has been abused. But it's a realistic option in the majority of cases.

Disadvantages

What are the downsides? There aren't many to be honest, but having to work with ex-wife or husband on all the issues can be emotionally draining. You will have to agree on all the major issues, such as child custody, property division, spousal support, and so on. This is not easy. You are getting divorced for a reason, and so agreeing with one another can be challenging, especially if both sides aren't willing to give on certain issues.

So uncontested divorces do involved some work on both ends. But the advantages certainly outweigh the disadvantages.

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Should You Go For An Uncontested Divorce?

An uncontested divorce takes place when two parties come to an agreement on all terms. All the negotiations are done between the two parties outside of the court. Lawyers are present, but are not representatives of either party and primarily serve as advisors and to fill out paperwork. Hiring a lawyer in this case is not necessary, but generally they are not very expensive and help ease the burden. How long an uncontested divorce process lasts depends on how quickly the two parties are able to agree to all terms. Going this route however does have its pros and cons.

One benefit of uncontested divorces is that it's a far less expensive than being in court. You will save even more money however if you and the other party can do all the negotiations without the assistance of a lawyer. This is especially true if you are paying the divorce lawyer by the hour. Another advantage is the time that is saved. Divorce cases that go to court can take on average one year to be completed, sometimes even two years. An uncontested divorce generally will only last a few months, though this does vary based on the area you live in. But saving money is what makes this route so attractive, especially when your living expenses are going to change without your partner in the picture.

Uncontested divorces generally are far less emotional and dramatic than contested ones. This of course is because the two parties are working together and ultimately reaching an agreement. The relationship is able to at least become mutual, which is especially beneficial if children are involved. Plus, children won't have to suffer through a drawn-out divorce case.

Another benefit that you get with uncontested divorces is privacy. The negotiations are done behind closed doors just between the two parties, and only a limited amount of information will be released in the documents. All that will be public is the records.

Patience will be necessary however in uncontested cases. It's not often that both parties will agree on everything in the beginning. There will be some back and forth, so it's important that both are willing to work together and have an open mind. Just because there are some disagreements doesn't mean you should go running off to a judge.

So what are the downsides? Well, depending on the relationship, an uncontested divorce may not even be possible. If one party for instance was abused or under the control of the other, then it would be difficult for both sides to cooperate with each other. Each side should get a good deal, but this requires both to put aside differences.

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Most Common Uses of Special Power of Attorney

A special power of attorney becomes necessary in situations that require legal authorization to act as an agent for another person. This could be to authorize someone to handle banking transactions, business affairs, sell real estate or motor vehicles, or grant permission to a caregiver to obtain medical care for minor children.

Essentially, a special power of attorney can be written up for nearly any kind of transaction people perform. Privileges can be given to engage in real estate transactions; open or close bank accounts or transfer funds between accounts; manage financial investments; buy, sell, or trade business equipment and assets; or act as an agent to enter into negotiations with government organizations like the Internal Revenue Service.

Government bureaucracies, banks, and medical professionals cannot discuss information pertaining to you or your assets without written authorization. Nor, can a person enter into financial arrangements or make medical decisions without the appropriate power of attorney form.

It is advisable to have an attorney write up special power of attorney documents to ensure they contain appropriate legalese and are recorded through courts, if necessary. However, people can write their own POA documents using preformatted templates that only require filling in the blanks. At minimum, it's a good idea to have lawyers review self-written forms to make certain they will be valid in a court of law.

Each POA form includes the name of the person executing the document, known as the 'Principal' and the person authorized to act as the 'Agent' or 'Attorney-in-Fact.' The latter term sometimes confuses people because they assume it refers to a lawyer. However, agents do not have to be lawyers or have any connection to the legal field.

One of the more common uses of special POA documents is to authorize agents to conduct real estate transactions. Investors use this form to permit realtors to buy or sell investment properties. They also use this document to grant property management groups the right to manage rental properties and collect rent monies.

Another use of real estate POA is when homeowners need to authorize construction companies to purchase materials to build or renovate their home. Lastly, this form can be used to transfer real estate utilizing 1031 exchanges.

Business owners need to establish special power of attorney to authorize agents to conduct certain types of business transactions. These could include buying, selling, or trading business assets, business notes, or real estate, as well as taking part in joint ventures with partners.

Individuals that need others to manage investment accounts will have to setup power of attorney forms. Privileges can include: making deposits and withdrawals into investment accounts; managing mutual funds, Keogh's, and IRA's; or working with investment firms and stock brokers.

Taxpayers that owe the IRS back taxes and hire an organization to negotiate for them will have to assign POA privileges. These powers can authorize agents to respond to IRS notices; prepare tax returns; acquire 4506 tax forms; or work with the IRS to lessen outstanding balances or setup a payment plan.

Last, but not least, special power of attorney is frequently utilized with estate planning methods to grant privileges for engaging in proceedings related to estate settlement. It is best to speak to an estate planner or probate lawyer to ensure proper forms are filed.

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Writing a Promissory Note

Promissory notes should include legal bindings between the borrower and the lender. It should contain all the information required to show that the money is borrowed and the time period for the repayment. This document should contain every minute details of the loan so that the document can have legal binding in a court. Most of the times, this kind of documents are prepared by an attorney, financial institution or a bank. Individuals also can write the document by themselves, but should include the details required to have a legal binding for the money borrowed.

The most important point to remember while writing a promissory note is to include a date at the top of the document because based on this date the terms of the document is created. Also write the amount borrowed which is referred as the principal amount. The principal amount has to be written in numeric with decimal places, if any. You can write the amount as you will write the amount in a check. The amount should be written in the document to avoid any kind of misinterpretations regarding the money to be returned.

The terms and conditions should also be described in the promissory note. The document should explain whether the money has to be returned on demand, monthly payments, quarterly payments, weekly payments or any kind of balloon payment required at certain point of time. You should include the due date, month, year and day of the first payment. You have to include the final payment year, month and date in the document. Some of the documents need to be included with amortization schedule that shows every payment and balance during that time depending up on the interest rate. The rate of interest also should be listed in the document.

The interest rate of the amount borrowed must be written both in numerics with percentage symbol and in words. Whether the interest rate is fixed or flexible also should be explained in the promissory note which is usually seen in home mortgage loan payments. The interest rates of home mortgage loans can be increased as time passes and because of this the interest rate also will be increased. Next, you have to explain whether this is an unsecure or secured note. Majority of the mortgage loans shows that their promissory notes are secured using a Deed of Trust. Deed of Trust is a record whereas the promissory note is not a record.

The promissory note should contain the note holder's name. The name can be of a person, company, financial institution or individuals who has borrowed the amount and to whom the money to be returned. Write the address to where the repayments to be sent. The notes should contain the signature of the borrower towards the bottom of the note.

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By The People, Fairfield CA does over 80 different legal forms to help you get what you need done effectively and efficiently. Give us a call at 707-428-9871. Let us know how we can help you. If it isn't something that we do, we certainly know places to direct to you.

What is a Quitclaim Deed and Who Needs One?

When two parties need to transfer a title on a piece of real estate, the transaction will eventually have to be filed with some government office. That office has no way of knowing that all actions have been completed unless they are presented certain documents.

This document is commonly the Quitclaim Deed. This document essentially shows that the seller no longer has an interest in the property in question.

Sometimes, however, there is not an actual sale of real estate, yet one party must yield their claim in the property to someone else. A common situation where this might occur is divorce. If one party must transfer their claim in property to the other, a quitclaim deed may be required.

Also, often if a trust has been created to control property, a quitclaim deed may be required in the transfer of ownership to the trust.

There are actually three types of these documents which may be used:

1. The quitclaim deed itself can be used if the transfer does not need any other representations. Sales of property "as is" often need only this document.

2. If there is a need to "warrant" that the property is being transferred without any encumbrances other than those which are already a matter of record, you may require a "warrant deed".

3. Sometimes, the buyers feel that it is necessary to assure a seamless transfer of the property to a surviving partner in the event one should die. In this case, a "survivorship deed" may be necessary.

While the quitclaim deed itself can be easily created by most people by using do it yourself legal software, it can be part of a complicated process, as are most real estate transactions. While many people are attempting to sell their homes themselves these days using "for sale by owner" (FSBO) methods, that too can be a complicated and daunting experience.

While you may want to handle the sale of your home yourself, it is best to be honest with yourself as to your abilities to handle it all, even with the help of do it yourself legal kits. Once you have made an honest evaluation, you may find that the best course of action is to simply hire an attorney who is experienced in real estate transactions.

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By The People, Fairfield CA does over 80 different legal forms to help you get what you need done effectively and efficiently. Give us a call at 707-428-9871. Let us know how we can help you. If it isn't something that we do, we certainly know places to direct to you.

'Best of' Moments from 'Divorce Court'

Check out Judge Lynn and some of the funniest litigants on "Divorce Court" through the years.

About Qualified Domestic Retirement Orders

You may be wondering what qualified domestic retirement orders are. Qualified domestic retirement orders, or QDRO, are domestic relations orders that assign the benefits of someone's retirement plan to an alternate payee. In short, a party other than the party named in the retirement plan gains the financial benefit of that plan. The order is made pursuant to that jurisdiction's marital relations law and may concern alimony, child support, or other issues stemming from a marriage. As a result, the alternate payee may only be a current spouse, former spouse, child, or some other dependent of a participant. If the child is a minor, then the QDRO may need to be paid to that child's parent or legal guardian.

Qualified domestic retirement orders need not necessarily be ordered by a court. If a state agency has been granted the proper authority to issue such an order, it may, as long as that authority has been given by the proper governing local statutes. Ultimately, the final authority on determining what is and is not a QDRO, if such a determination is required, is the United States Department of Labor.

Pursuant to ERISA § 206(d)(3)(C)(i)-(iv) and IRC § 414(p)(2)(A)-(D), in order to be properly executed, there are several provisions that a QDRO is required to have regardless of what else is on it. The first requirement is that the QDRO contain the name and last known mailing address of the participant and each alternate payee. The second requirement is that the qualified domestic retirement order contains the name of each plan to which the order applies. The third requirement is that it have the dollar amount or percentage of the benefit that will be paid out to each alternate payee. Finally, the order needs to spell out the number of payments or the time period to which the order applies.

Just as there are certain requirements that qualified domestic retirement orders are required to have, there are also things that it cannot have under any circumstances. First, the order may not require a plan to provide an alternate payee or participant with any type or form of benefit, or any option, not otherwise provided under the plan. Second, it may not require a plan to provide for increased benefits. Third a qualified domestic retirement order may not require a plan to pay benefits to an alternate payee that are required to be paid to another alternate payee under another order previously determined to be a QDRO. Finally, it may not require a plan to pay benefits to an alternate payee in the form of a qualified joint and survivor annuity for the lives of the alternate payee and his or her subsequent spouse.

Of particular importance to individuals involved in a divorce is that a QDRO may be included as part of a divorce agreement or property settlement, as there is nothing in federal law that would preclude such an act. An order may also be ordered as part of a child support payment obligation.

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