On March 4, 2017, firm partner Alexander R. Ginzburg attended the South Bay Bar Association Probate Section Luncheon with the Honorable Los Angeles Superior Court Judges: Hon. David J. Cowan (Department 79), Hon. Maria E. Stratton (Department 5), Hon. William P. Barry (Department 67). The focus of the Probate Luncheon was technological changes being incorporated by the Los Angeles Superior Court and its effect on the Probate Department, litigants, and attorneys.
Ginzbug & Bronshteyn, is also, proud to share that firm partner Yasha Bronshteyn recently obtained a favorable trial verdict in excess of $900,000.00 for the Petitioner and Conservator of the Person and Estate he represented. The theories of recovery were based on conversion of conservatee’s real property, Elder abuse, and the power of the court to adjudicate an estate’s claims against persons charged with embezzling, concealing, or otherwise wrongfully taking or retaining property belong to the estate. (Probate Code §850(a)(2)(D) & Probate Code §859). In addition, our offices were to show that the level of fraud, malice, and oppression was so high to sustain an award of punitive damages in addition to double damages under Probate Code §859.
Our offices have been successful in helping families with the Conservatorship Process when a loved one is declining in their abilities. The Standard of Proof for a Conservatorsip is as follows:
o Clear and Convincing Evidence is required, “so clear as to leave no substantial doubt”
o Presumption is that proposed conservatee has capacity. (Probate Code §810 (a))
o Must Be Last Resort – Probate Code §1821(a)(3): Petitioner must inform court of alternatives to conservatorship and why the alternatives will not work.
The Conservatorship is needed when a personal can not care of themselves or when they can not handle her own financial affairs.
The starting point for any mental capacity determination is Due Process in Competence Determinations Act found in Probate Code §§810 to 813, 1801, 1881, 3201, and 3204 (the Act). In 1995, the Legislature created the Act to clarify the legal capacity of a person who has a mental or physical disorder. The Act expressly states it broadly covers the capacity of such persons to perform all types of actions, “including, but not limited to” contracting, conveying, executing wills and trusts, marrying, and making medical decisions. (Probate Code, § 810(b)) “The mere diagnosis of a mental or physical disorder shall not be sufficient in and of itself to support a determination that a person is of unsound mind or lacks the capacity to do a certain act.” (Probate Code, § 811) Moreover, the Act declares there “exists a rebuttable presumption affecting the burden of proof that all persons have the capacity to make decisions and to be responsible for their acts or decisions.” (Probate Code, § 810(a)).
It is important to properly present the case and evidence to effectively persuade court that the conservatorship is appropriate. Similarly, in situation where a conservatorship is not the least restrictive alternative or the party trying to become the conservator is not well suited our offices are effective in objecting to the proceeding.
We are here to help you and your loved ones. To discuss your needs and discover your options, consult the Los Angeles incapacity, conservatorship, and estate planning attorneys at Ginzburg & Bronshteyn, LLP. We serve clients in Los Angeles, Orange County, Ventura County, and throughout Southern and Northern California including Agoura Hills, Beverly Hills, Calabasas, Camarillo, Encino, Hidden Hills, Irvine, Lake Sherwood, Marin County, Mission Viejo, Newport Beach, Oxnard, Palo Alto, Pasadena, San Francisco, San Juan Capistrano, Santa Monica, Simi Valley, Tarzana, Thousand Oaks, Torrance, Tustin, Ventura, West Los Angeles, and Woodland Hills. Our attorneys are renowned for producing high quality work and working diligently to achieve our client’s goals. We have developed a reputation for effective representation in complex and sophisticated matters as we guide you through the complex legal process. We are experienced in obtaining and defending against conservatorships. Contact us by calling (310) 914-3222 in Los Angeles, or (818) 787-1011 in Westlake Village, (714) 280-0601 in Orange County or by using our online contact form.
Once again Conservatorships, while intended to exist for the benefit of the protected person, can sometimes become complicated and contentious. If you find yourself in a conservatorship that has become legally combative, consult the conservatorship attorneys at Ginzburg & Bronshteyn. Our experienced Los Angeles conservatorship attorneys are here to help clients in Santa Monica, Ventura County, Orange County, Northern California and throughout Southern California defend their rights under the law. To contact our skilled attorneys, please contact Ginzburg & Bronshteyn, LLP online or call us at (310) 914-3222, (714) 280-0601, or (818) 787-1011.