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Berkeley, CA Estate Planning AttorneyWhen a child’s parents die or become unable to provide the necessary care, guardianship will allow another person to step in and ensure that the child is provided for. However, children are not the only ones who may need this sort of care and supervision. Adults who are unable to fully care for themselves, including people who are developmentally disabled or seniors who no longer have the capacity to meet their own needs, can benefit from a form of guardianship known as conservatorship. A limited conservatorship will often be appropriate for these types of individuals, and people who are involved in these types of cases will need to understand their rights and the procedures that will be followed.

Types of Conservatorship

As with guardianship, a person may be named a conservator of the person or a conservator of the estate. A conservator of the person will be responsible for making sure the conservatee has the necessary food, shelter, clothing, and medical care. A conservator of the estate will be responsible for managing the conservatee’s assets and finances, including collecting income or benefits on their behalf and paying any necessary bills or expenses.

While there may be some cases where a conservator will have complete control over a conservatee’s person or estate, most of the time, courts prefer to establish a limited conservatorship. This will ensure that the conservator will provide the necessary assistance for the conservatee, while providing the conservatee with control over the aspects of their life that they are able to manage. This protects the conservatee’s rights, allowing them to make decisions for themselves while also offering the reassurance that a person who cares about them will make sure their needs are being met.

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Oakland Power of Attorney LawyerThere are a variety of situations where a person may need help from others due to health concerns, disabilities, or other issues. In some cases, this assistance may include making decisions about the person’s medical care and treatment or the management of their finances. To ensure that these matters are handled properly, a person can create a power of attorney that will authorize someone they trust to make decisions on their behalf. There are multiple different types of powers of attorney, and in many cases, it is beneficial to create a “durable” power of attorney that will remain in effect if a person becomes incapacitated.

Durable Powers of Attorney for Healthcare and Finances

A power of attorney is a legal document that grants a person the right to make certain types of decisions on someone else’s behalf. The person who creates a power of attorney is known as the “principal,” and the person who will be making decisions for them is known as their “attorney-in-fact.” A power of attorney is considered to be durable if it will continue to allow the attorney-in-fact to decide matters on the principal’s behalf after the principal has become incapacitated. That is if the principal experiences a physical or mental condition that prevents them from making their own decisions or communicating their wishes to others, the power of attorney agreement will continue to apply, giving the attorney-in-fact the power to act on the principal’s behalf.

For a power of attorney to be considered durable, it must include language that states that the powers granted to the attorney-in-fact will not be affected by the principal’s incapacitation. Typically, one of two statements will be used:

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Bay Area estate planning lawyerThe makeup of the average American family has changed dramatically in recent decades. A large percentage of families now include children from multiple marriages. In some cases, both spouses have children from previous marriages in addition to the children the couple shares together. If you are part of a blended family, proper estate planning is especially crucial. Failing to properly plan for your family’s future can lead to arguments, confusion, and unintentional consequences.

Allowing the State to Handle Inheritance Matters Eliminates Your Control

Thinking about how your worldly possessions should be distributed to your heirs is a topic that many people try to avoid. In fact, only about half of adults over 55 years old have any type of estate plan in place. Understandably, it can be very uncomfortable to make plans for a time when you are no longer around. However, failing to plan for how your estate should be managed after your death leaves your surviving loved ones with a substantial burden. Your children, grandchildren, and other surviving loved ones will be left guessing how you wanted your assets distributed. Furthermore, passing away without an estate plan means that you give up the right to dictate how your hard-earned assets are handled after your death.

Dying Without an Estate Plan Can Leave Some Children with Nothing

In a blended family situation, the consequences of dying without a will can be even worse. If you pass away without a will or other estate planning tools in place, your estate will be subject to California’s intestacy laws. This means that you have no say in how your property is distributed to heirs. According to California law, most of person’s estate—including all community property—goes to his or her spouse upon his or her death. When the spouse dies, his or her estate passes to his or her children. This means that your children could unintentionally be left with little or nothing if you pass away before your spouse.  

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Bay Area estate planning lawyerIf your child has a mental or physical disability, he or she may depend on you for help with schoolwork, chores, or everyday tasks like eating and bathing. As a parent of a disabled child, it is important to consider how your child will manage once you are no longer able to care for him or her. If you fall ill or pass away, who will provide the assistance your child needs? How will these services be paid for? A special needs trust is designed to address these types of issues.

How Does a Special Needs Trust Work?

Disabled children may require assistance even after they reach adulthood. Some people with disabilities can accomplish most tasks on their own while others require assistance with many of their daily activities. Whatever your child’s needs, a special needs trust or “supplemental needs trust” can help you plan for a time that you cannot provide this assistance yourself.

A trust is a legal and financial relationship between a trustor, trustee, and beneficiary. The trustor, or person who creates the trust, gives a trustee the right to hold money or property for the benefit of a third-party beneficiary. In the case of a special needs trust, the beneficiary is the child with special needs. The trustee is often a sibling or other trusted loved one. The trustee is responsible for using the money placed in the trust to benefit your child. Funds contained in a special needs trust may be used for medical expenses such as physical therapy that are not covered by other programs, caregiving, transportation, recreation, and more.

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Bay Area probate attorneyLosing someone you love is never easy, regardless of their age and if they were a relative or a friend. Besides grieving this loss, you may have to figure out what to do with their possessions. Similar to other states, there is a certain legal process in California for distributing assets and property upon a person’s death. The property that an individual owns at the time of their death is known as the “decedent’s estate.” The “decedent” is the individual who died. Their “estate” is any property they owned at the time of their death.

Probate is a legal process through which the appropriate county court verifies the validity of the deceased person’s Will and distributes the decedent’s remaining assets after all debts are satisfied. If no Will exists, the debts must be paid, and then the remaining assets will be distributed according to state law.

When Is Probate Necessary?

Any probate case will be supervised by the court. As part of the proceedings, an executor is appointed by the court as personal representative to collect the assets, pay the debts and expenses, and then distribute the remainder of the estate to the beneficiaries, or those who have legal inheritance rights. It is important to note that an executor refers to a person named in the decedent’s will. If the decedent did not have a will, then an administrator will be appointed by the court. The entire case can take anywhere from nine months to a year and a half or longer.

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