Updates in Probate and Conservatorship Matters

gavelAlexander R. Ginzburg, Partner at Ginzburg & Bronshteyn, LLP and Edward Babakhani, Associate Attorney, at Ginzburg & Bronshteyn, LLP enjoyed the program scheduled by the Los Angeles County Bar Association -Trust and Estates Section scheduled for January 9, 2018, concerning summaries of 2017 cases that affect trust, estate and conservatorship matters.  The program commenced at 11:45 a.m. at the Stanley Mosk Courthouse located at 111 N. Hill Street, Los Angeles, CA 90012.  The speakers included Los Angeles Probate Court Presiding Judge David J. Cowan.

Next, the Los Angeles Superior Court – Probate Division has announced certain changes to Probate Court Judicial Assignments.  More specifically, effective Oct. 30, 2017, the Probate Division implemented the following changes:

• Judge Daniel J. Juarez is reassigned from the Mental Health Division to the Probate Division, to the Stanley Mosk Courthouse located at 111 N. Hill Street, Los Angeles, CA 90012.  The Department will be determined later as initially the honorable Judge Juarez will provide coverage for other probate judicial officers as required, and conduct settlement conferences.

• The Honorable Robert S. Wada who has been appointed to Los Angeles County Superior Court.  Judge Wada will serve in the Probate Department as Judge Wada  has previously served as commissioner at the Los Angeles Superior Court, where he served as supervising probate attorney from 2011 to 2016, a commissioner from 2008-2011, and a probate attorney from 1997-2008.  Judge Wada is graduate of UCLA and Western State University.  Judge Wada was admitted to practice in 1982 and worked in private practice, handling probate and estate planning matters before joining the court.

• Judge Barbara R. Johnson will preside over a newly added probate calendar courtroom, Department 57, at the Stanley Mosk Courthouse located at 111 N. Hill Street, Los Angeles, CA 90012. Effective January 31, 2018, Judge Barbara R. Johnson will be reassigned from Department 57 to Department 11.  Judge Green who presided over Department 11 will be retiring.

• Effective January 31, 2018, Judge Elizabeth Lippitt will be reassigned from Department W at the Van Nuys East Courthouse to Department 57 at the Stanley Mosk
Courthouse to handle the probate calendar.

Our offices are available to help in with the Conservatorship Process as well as contested Trust Litigation.

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 their 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.

A common element of trust litigation concerns having sufficient mental capacity under California Probate Code Sections 810-812 or 6100.5 to understand the nature of  actions in executing the instruments and arranging for the transfer of assets and property in accordance with the instruments.  Additionally, undue influence must be considered in evaluating a potential case.  An additional factor “‘which has been considered in support of a finding of undue influence is the existence of a mental and physical condition permitting subversion of the decedent’s freedom of will.’ [Citations.]” Estate of Garibaldi, 57 Cal.2d 108, 113 (1961); see also, Estate of Robbins 172 Cal. App. 2d 549, 553 (1959).

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, Brentwood, Calabasas, Camarillo, Encino, Granada Hills, Hermosa Beach, Hidden Hills, Irvine, Lake Sherwood, Marin County, Mission Viejo, Newport Beach, Northridge, Oxnard, Palo Alto, Pasadena, Playa Vista, San Francisco, San Juan Capistrano, Santa Barbara, Santa Monica, Sherman Oaks, 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,  (818) 787-1011 in Westlake Village, (714) 280-0601 in Orange County, (415) 465-6566 in Northern California 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.

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