AREAS OF PRACTICE  

Family Law

“Family Law” generally refers to those matters dealing with the family structure, such as divorce (referred to in California as “dissolution of marriage”;), legal separation of spouses, annulment of marriage, dissolution of domestic partnerships, child custody and visitation, child and spousal support (also referred to as “alimony”), and domestic violence petitions.

 

Prenuptial Agreements/Premarital Agreements

A “premarital agreement,” frequently referred to as a “prenup” or prenuptial agreement, is an agreement between two people planning to marry each other, and it is intended to be effective upon marriage. A premarital agreement must be in writing and signed by both parties. During marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties.

Generally, most financial issue can be dealt with in a premarital agreement. However, most issues relating to children, including child support and custody, cannot be included in the agreement. Nor is one allowed to contract about obligations of each spouse during the marriage, such as household chores, frequency of sexual relations, or penalties for adultery.

California also has special provisions regarding spousal support in premarital agreements, including restricting the ability of the parties to limit or waive such support unless the person receiving or waiving support had independent counsel before entering into the agreement.

To find out more information regarding prenuptial agreements, contact LG Law APC.

 

Post Nuptial Agreement

A Post Nuptial Agreement is similar to a prenuptial agreement, but is usually entered into by two spouses not already in the divorce process. Like in a premarital agreement, some of the property rights given to a husband and wife by law may be altered by a post nuptial marital property agreement, such as how to divide property, determine spousal support, and other issues if the marriage ends in divorce.

LG Law APC can help you determine whether a post nuptial agreement is right for you.

 

Divorce

There are three main ways to end a marriage or registered domestic partnership in California: divorce (referred to as “dissolution”), legal separation, and annulment. In a divorce, it is not necessary for both spouses or domestic partners to agree to end the marriage. Either spouse or partner can independently decide they wish to end the marriage. Refusing to participate in the divorce will not stop it. If a spouse or domestic partner does not participate in the divorce case, the spouse/partner that requested the divorce can still obtain a “default” judgment and the divorce will go through.

California is a “no fault” divorce state, which means that the spouse or domestic partner that is asking for the divorce does not have to prove that the other spouse or domestic partner did something wrong.

After you decide how you want to end your marriage or domestic partnership, you need to plan your case ahead of time. Think about how you are going to handle your case. Planning before you start and talking to a lawyer can save you time and money as you go through the court process. LG Law APC can help guide you through this process.

 

Domestic Partnerships

To be registered domestic partners, partners must:

  • File a notarized Declaration of Domestic Partnership with the California Secretary of State;
  • Have a common residence;
  • Not be married, already in another registered domestic partnership, or related by blood in a way that would prevent them from marrying;
  • Be at least 18; and
  • Both be members of the same sex or, for opposite-sex couples, at least one of them be over 62 and eligible for social security benefits.

Currently, federal law does not recognize domestic partners, and there are over numerous federal laws in which marital status is a factor. These include rights under Social Security, Medicare, immigration law, veterans' benefits, and federal tax laws. Domestic partners also may not have the same rights as married persons if they leave California.

Ending a domestic partnership is done in the same manner as ending a marriage. If you want to end a registered domestic partnership, domestic partners must also file for dissolution to end their relationship. However, this area of law is constantly changing. If you are trying to end a domestic partnership, it is important to talk to a lawyer who is knowledgeable about the law in this area. LG Law APC keeps up with all the changes and will get you through the legal obstacles.

 

Military Divorce

The Servicemembers Civil Relief Act (SCRA) protects active duty military members, as well as reservists and members of the National Guard when called to active duty. One important aspect of SCRA is its requirement that, in most instances, a court or administrative hearing must be stayed, or postponed, for at least 90 days if requested by the servicemember. There are some requirements that must be fulfilled for this to take effect.

In addition, there are many aspects of military life that can be affected by the ending of your marriage. Military retirement pay and other benefits can be affected by the divorce. Property division and support issues can affect these benefits. It is important that servicemembers and their spouses understand these issues so they can take steps to protect their rights. LG Law APC can help you determine your rights and responsibilities in a divorce before, during, and after a servicemembers separation from military service.

 

Legal Separation

Sometimes, couples do not want their marriage to end in divorce. There are many religious, insurance, tax or other reasons for wanting a legal separation instead of a divorce. In a legal separation, the spouse will remain married, but the court can divide property and decide issues relating to child custody, visitation, child and/or spousal support, and, if necessary, a restraining order. LG Law APC can help you determine if legal separation is right for you.

 

Alimony/Spousal Support

When a couple legally separates or divorces, the court may order one spouse or domestic partner to pay the other a certain amount of support money each month. This is called “spousal support” for married couples and “partner support” in domestic partnerships. It is sometimes also called “alimony.”

For temporary support, judges in many local courts generally use a formula based on the income of the spouses to calculate the amount. Courts in different counties may use slightly different factors in calculating temporary support.

The judge will not use a formula to figure out how much spousal or partner support to order at the end of your case. The spousal or partner support order then becomes part of your final divorce or legal separation judgment. When the judge makes his or her final spousal or partner support order, the judge must consider many factors, including the length of the marriage, the age, health, and needs of each spouse, the assets, debts, and income of the spouses, and whether there was domestic violence in the relationship.

The laws in this area are complicated. LG Law APC can help you determine the proper amount of support in your divorce.

 

Spousal Support Modification

Depending on the situation, one of the former spouses or domestic partners might need to change the amount of support that is paid after a divorce or legal separation. To ask for a change in the support amount, the person needs to show a “change in circumstances.” This means something important has happened that requires the previously made support order to be changed, like a significant change in income for one or both of the people involved.

IMPORTANT! If you are the person paying spousal or partner support, the amount of monthly support you are required to pay will not change until you get a new court order. You will still owe the full amount of support until you go to court to get the order changed. For example, if you lose your job today but you do not file with the court to change your spousal or partner support order until 3 months from now, you will still owe your former spouse or partner support from today until 3 months from now, even though you were not working. In addition, if you owe that amount but are unable to pay it, you will owe interest on any unpaid balance (currently at the rate of 10% per year).

Spousal and domestic partner support usually ends when one of the spouses or domestic partners dies, the person getting the support remarries or registers a new domestic partnership, or the court orders that it ends, either by having an end date included in the original order, or by obtaining a new order. At LG Law APC, your attorney will go through the changes with you and determine whether the amount of support needs to be adjusted to reflect those changes.

 

Paternity

If parents are married when a child is born, there is usually no question about parentage. The law assumes that the husband is the father and the wife is the mother, so paternity is automatically established in most cases. But for unmarried parents, and in cases where there is a possibility that one of the spouses in the marriage is not the parent of the child, parentage of the child or children needs to be established legally.

Note: After January 1, 2005, if parents are registered domestic partners when a child is born, the law assumes that the domestic partners are the child's parents. However, since this law is relatively new and unsettled, same-sex parents should get legal advice to make sure that the parentage is clear.

In parentage cases, also called “paternity cases,” the court makes orders that say who the child's legal parents are. Having the name of the parent on the birth certificate, or signing declaration of paternity at the birth usually isnt enough.

Even if a father can prove he is the biological father of a child, if he was never married to the mother, he does not legally have any rights or responsibilities for the child. These means there can be no child support, custody or visitation ordered until parentage is legally established in court. LG Law APC can help guide you through this process to make sure the childs rights, and your rights, are protected.

 

Child Custody and Visitation Rights

“Child custody” refers to the rights and responsibilities between parents for taking care of their children. In your case, you will need to make a decision on custody as well as “visitation,” which means how each parent will spend time with the children. Custody is divided into two types.

Legal custody” refers to who makes important decisions regarding your children like health care, education, and welfare. “Physical custody” refers to who the children live with. Custody in both instances can be joint, meaning that both parents share the responsibility to make important decisions about the child, and the child spends significant time living in each parent's home. Sole custody, or primary custody, means one parent has primary responsibility for the child, and the child lives with that parent most of the time.

Having a detailed visitation plan can prevent conflicts and confusion. The amount of visitation a non-custodial parent has can vary based on the circumstances of your case. In some instances, limited, supervised, or no visitation may be necessary if the safety and welfare of the child is a concern. Many factors are considered by the court in determining the custody and visitation arrangement, including the age and health of the child. The court's decision must conform to the “best interest of the child.”

In California, either parent can have custody of the children, or the parents can share custody. Courts do not automatically give custody to the mother or the father, no matter what the age or sex of your children. Courts cannot deny your right to custody or visitation just because you were never married to the other parent, or because you or the other parent has a different lifestyle, religious belief, sexual orientation, or a physical disability.

Your attorney at LG Law APC can help you establish an appropriate custody and visitation arrangement for your child or children, and walk you through any special requirements ordered by the court.

 

Custody Modification

As circumstances change, or your child gets older, one or both parents may want to change the custody and visitation schedule ordered by the court. Usually, changes can be made, and the court will approve a new custody and visitation order that both parents agree to. If the parents cannot agree on a change, one parent can ask the court to order a change. That parent will have to prove to the judge that there is a significant change in circumstances other good reason to change the order, and that the change is in the best interest of the child. For example, if a young child only has visitation with a parent weekdays during the day, it would be appropriate to change the order when the child starts school for the first time to ensure that the child continues to have a relationship with that parent.LG Law APC can discuss your case with you to determine whether a change is appropriate, and help you through the steps to make those changes.

 

Child Support

Child support is the amount of money that a court orders a parent or both parents to pay every month to help pay for the child's needs and living expenses. Each parent is equally responsible for providing for the financial needs of his or her child, but the court cannot enforce this obligation until it is a formal court order. Whether the parents are married or not, when parents separate, one of the parents must file with the court to request divorce, legal separation, domestic violence restraining order, or a determination of paternity. As soon as one of those cases is filed with the court, either parent can ask the court to make an order for child support.

Child support payments are usually made until children turn 18. However, there are some instances where support can continue beyond 18. There are also some instances where the amount of support can change, or can stop prior to the child turning 18. To find out your rights to pay or receive child support, contact LG Law APC.

 

Child Support Modification

Depending on the situation, either parent might want to change the amount of child support that is paid. Changes in child support often make sense if either parent has had a significant change in his or her income or the amount of time each parent spends with the child. Child support could go up or down depending on how these factors have changed.

IMPORTANT! If you are the parent paying child support, the amount of monthly support you are required to pay will not change until you get a new court order. You will still owe the full amount of support until you go to court to get the order changed, even if your situation has changed. For example, if you lose your job today but you do not file with the court to change your child support order until 3 months from now, you will still owe child support to the other parent from today until 3 months from now, even though you were not working. In addition, if you owe that amount but are unable to pay it, you will owe interest on any unpaid balance (currently at the rate of 10% per year).

 

Enforcement Actions

After you get a child, spousal, or partner support order from the court, the other parent, spouse or partner must start making the ordered payments to you. The court order will include a start date for the child support. But most parents do not know what to do if the other parent does not make those payments, or make them on time.

In most cases involving child support, the court can order that a wage assignment, or garnishment, be issued. The wage assignment tells the employer of the person ordered to pay support to take the support payments out that person's wages. There are also several state programs and agencies that can help you collect child support that is owed to you.

Not paying child support can have very serious consequences. If the court finds that someone has the ability to pay the ordered support but is willfully not paying it, it can find that the person ordered to pay support is in contempt of court. Being in contempt of court could mean jail time for the person who is not paying the child support. This enforcement tool is generally used only when all others have failed since it has such serious consequences. Your attorney at LG Law APC can help determine what steps are necessary to enforce a child, spousal or partner support order, and make sure that you are not deprived of the support you need to survive.

 

Domestic Violence

“Domestic violence” usually involves abuse, or threats of abuse, between two or more people who are or have been in an intimate relationship, or related by blood or marriage. Common examples would be a married couple, domestic partners, a parent and child, or unmarried couples who live together, or have children together. When such violence occurs, the abused party can request a restraining order from the court.

The domestic violence laws say “abuse” can be one person physically hurting or trying to hurt another, intentionally or recklessly, or making threats that would make someone reasonably afraid that they or someone else is about to be seriously hurt. Abuse can also be sexual assault, or behavior such as harassing, stalking, threatening, or hitting someone; disturbing someone's peace; or destroying someone's personal property. Behavior intended to frighten the other person, or restricting your ability to leave or flee can also be grounds for a restraining order.ݬ

Also, keep in mind that the abuse in domestic violence does not have to be physical. Abuse can be verbal (spoken), emotional, or psychological. You do not have to be physically hit to be abused. Often, abuse takes many forms, and abusers use a combination of tactics to control and have power over the person being abused.

If you are being abused in any of these ways or you feel afraid or controlled by your partner or someone you are close with, it may help you to talk to a domestic violence counselor, even if you do not want (or are not sure if you want) to ask for legal protection. See our Links & Resources page to find domestic violence resources in your county.

 

Restraining Orders

A domestic violence restraining order is a court order that helps protect people when someone they have a close relationship with abuses, threatens, assaults, or stalks them.
ݬ
You can ask for a domestic violence restraining order if you are a victim of domestic violence, as defined above. If you are a parent and your child is being abused, you can also file a restraining order on behalf of your child to protect your child (and you and other family members). If your child is 12 or older, he or she can file the restraining order on his or her own.

If you do not qualify for a domestic violence restraining order, you may still qualify for other types of restraining orders, such as a restraining order that covers civil harassment, elder or dependent abuse, or workplace violence.

A restraining order is a court order. In it, the court can order that the other person does not contact you or other protected persons (such as children, roommates, or other family members). It can also order that person to follow a custody and/or visitation order, child and/or spousal support order, pay certain bills or return specified property. He or she can be ordered to stay away from your home, school, or place of work, and surrender any fire arms. If the person violates the restraining order, he or she can be prosecuted criminally and punished by jail time and/or fines.

Often, temporary restraining orders can be obtained quickly to ensure your immediate safety. The restrained person will then be given the opportunity to argue against the restraining order at a later date. To determine if you need a restraining order, or the type of restraining order that is best for you, contact LG Law APC today.

 

Property Division

California is a community property state. This means that a marriage or the registration of a domestic partnership makes two people one legal “community.” Property (“assets”) that the couple acquires during the marriage or partnership is owned equally by both spouses or partners, and debt that the couple accumulated during that time is the responsibility of both spouses or partners.

Community property generally consists of everything that spouses or domestic partners own together. It includes everything you bought or got while you were married or in a domestic partnership including debt that is not a gift or inheritance. Community property also includes all the earnings that either spouse or partner (or both of you) earned during the marriage and everything bought with those earnings.

Separate property can be anything you owned prior to marriage, or prior to registering your domestic partnership. Property acquired by gift or inheritance are also usually considered separate property, even when they are received during the marriage or domestic partnership.
Sometimes, assets can be a combination of separate and community property. This is called “commingling” because the separate property and community property have become mixed together. When property is a mix of separate or community property, it can get very complicated to figure out how to divide it.

The division of property and debts during a divorce or legal separation is often extremely complicated, and the cost of making a mistake is so high that it may be necessary to have a lawyer to assist you, especially if you have anything of value (or if you have significant debt). Keep in mind you may not need to hire a lawyer to handle your entire divorce or legal separation, but it is a good idea to have someone by your side to make sure everything is done correctly. An attorney can help you with the entire divorce or separation case, or just the more complicated aspects of it.

Some of the assets and debts that must be dealt with in a divorce or legal separation can be things like a house, car, furniture, bank accounts, credit cards, tax refunds, retirement or 401(k) accounts, business interests, investments, mortgages or other loans, jewelry, or antiques.
In a divorce, legal separation or dissolution of domestic partnership, the court makes decisions about how to divide the assets and debts that the spouses or domestic partners own together. Even if you divided your property informally when you separated, the court still needs to make a formal order about these issues. Often, couples are able to divide their assets and debts by agreement without going into court. But when you get divorced, the judge has to approve that agreement. Until that happens, the property you got during the marriage or domestic partnership belongs to the two of you, no matter who is using it or who has control of it.

When you divide your assets and debts, you should come up with an agreement that divides everything fairly equally, so that you each end up with roughly the same approximate value of assets and the same amount of debt.

The most complicated part of property division can be dealing with the spouses' pensions and retirement accounts. There are many special rules that apply to these types of accounts. These rules can be very technical and do not apply to any other kind of asset. In addition, there can be different rules for accounts that fall under state law as opposed to federal law. To make sure this aspect of the property division goes smoothly, contact LG Law APC to discuss your personal circumstances and make sure your pension or retirement account is handled properly.

 

Allocation of Debt

In most cases, allocation of debt is handled jointly with the division of property. Some of the debts that must be dealt with in a divorce or legal separation can be things like credit cards, mortgages, auto loans, student loans, or any other sum of money that must be paid back.
ݬ
Often, separating couples can work out division of assets and debts that they both feel is fair. However, until a judge signs off on your agreement and issues a final order, your community property is owned equally by both spouses or partners, and the debt that the couple accumulated during that time is the responsibility of both spouses or partners.

When you divide your assets and debts, you should come up with an agreement that divides everything fairly equally, so that you each end up with roughly the same approximate value of assets and the same amount of debt. Keep in mind that when you divide your property and debt, you are looking to come up with a roughly equal “net” share. This means that you add up the value of all of the property (assets) and then subtract the total amount of debt. What is left is the net value of the community estate to be divided between the parties. Under this approach, you can use debt to balance out someone getting a larger share of the property by having the spouse or partner that pays more of the debt also taking more of the property. This may be necessary in certain instances where one person does not have the ability to pay the debts.

When you make agreements between yourselves to pay off debt, you need to remember that the people you owe the money to do not have to honor that agreement. They can go after either spouse or partner whose name is on the debt, regardless of which of you agrees to be responsible for the debt. Therefore, it is important that the spouses or partners are careful about what they agree to here.

The law also requires a series of financial disclosures before your divorce, legal separation, or dissolution of domestic partnership can be finalized. These can include exchanging a list of assets, debts, earnings and expenses. The most important thing to do is to be open and honest in listing everything of value you own. If you keep anything hidden, it tends to come to the surface sooner or later, and the penalties for hiding something of value can be very serious.

Sometimes spouses or domestic partners try just taking the entire amount owed and dividing it in half so, for example, one party takes half the credit cards and the other takes the other half. They may even put this in a written agreement. But this may not be a good idea.

To avoid these potential problems with dividing debt, contact LG Law APC to discuss the best way to protect your assets and pay off the debts in a way that works for both spouses or partners.

 

Grandparent Rights

As a grandparent, visitation rights to your grandchildren depend on the situation. If either parent has died, for example, the child's siblings, aunts, uncles, and grandparents may be granted reasonable visitation if the judge believes it is in the child's best interests. If both parents are still living, the rights of the grandparents are more restricted, but there are many times when visitation rights can be ordered by the court. Sometimes your rights might be affected by whether or not the parents are still together, or whether they are divorced, separated, or if one of the parents joins you in your request. To find out more about whether you can obtain visitation rights to see your grandchild, contact LG Law APC. An experienced attorney can help.

 

Estate Planning

Estate planning more than just what happens to your belongings when you pass away. Your estate plan involves people your family, possibly your friends or other important individuals in your life, and in many cases, charitable organizations of your choice. Your estate plan not only states what happens to your property when you are deceased, but it should also addresses your future needs in case you ever become unable to care for yourself.

Your estate plan should state not only state how and to whom your assets will be given after your death, but who will be in charge of that distribution, and who will be in charge of your assets, and possibly your care, if you are no longer able to take care of that yourself.

Many people mistakenly think that estate planning only involves the writing of a will. Estate planning, however, can also involve financial, tax, medical and business planning. A will is part of the planning process, but you will most likely need other documents as well to fully address your estate planning needs. You may simply focus on who will receive your assets after your death, and who should manage your estate, pay your last debts and handle the distribution of your assets. Your lawyer and/or financial planner may also discuss various ways of preserving your assets for your beneficiaries and of reducing or postponing the amount of estate tax which otherwise might be payable after your death.

If you fail to plan ahead, a judge may appoint someone to handle your assets and personal care. Your assets will be distributed to your heirs according to a set of rules known as intestate succession. This may not conform to your wishes. Only if you have no heirs, or if none can be found, will your assets go to the state. However, the heirs chosen by law may not be your choice of heirs; an estate plan gives you much greater control over who will inherit your assets after your death.

LG Law APC can help you determine the best estate plan for you, and prepare that estate plan for a reasonable fee. Contact us for a free consultation.

 

Wills

Your will is a legal document in which you give certain instructions to be carried out after your death. For example, you may direct the distribution of your assets (your money and property), and give your choice of guardians for your children. You can also select who you want to be in charge of distributing your assets. Generally speaking, your will affects only those assets that are titled solely in your name at the time of your death, and the will becomes irrevocable when you die.

Most assets in your name alone at your death will be subject to your will. Some exceptions can include securities accounts and bank accounts that have designated beneficiaries, life insurance policies, IRAs and other tax-deferred retirement plans, and some other annuities. Such assets would pass directly to the named beneficiaries and would not be included in your will. In addition, certain co-owned assets could pass directly to the surviving co-owner regardless of any instructions in your will. And assets that have been transferred to into a trust would be distributed through the trust, not your will.

When you do not have a will, if you are not married or in a registered domestic partnership, your assets will be distributed to your children or grandchildren, if you have any, or to your parents, sisters, brothers, nieces, nephews or other relatives. If your spouse or domestic partner dies before you, his or her relatives may also be entitled to some or all of your estate. Friends, a non-registered domestic partner or your favorite charities will receive nothing if you die without a will. Also, if you move to a state that does not recognize your domestic partnership, or you do not refile your domestic partnership, your partner could receive nothing. The State of California is the beneficiary of your estate if you die intestate and you and your deceased spouse or domestic partner do not have any living relatives.

LG Law APC can help you prepare a will, and other estate planning documents, to make sure your wishes are followed after your death.

 

Trusts

A trust is a written legal document that partially substitutes for a will. With a living trust (sometimes referred to as a “revocable inter vivos trust” or a “grantor trust”), your assets are put into the trust, administered for your benefit during your lifetime, and then transferred to your beneficiaries after you die.

Most people name themselves as the trustee in charge of managing their trust's assets. This way, even though your assets have been put into the trust, you can remain in control of your assets during your lifetime. However, you can choose someone else if you wish. Normally, you name a successor trustee (a person or an institution) who will manage the trust's assets after your death, or if you ever become unable or unwilling to do so yourself. This type of trust may be amended or revoked at any time by the person or persons who created it as long as he, she, or they are still competent.

Your living trust can state who the trustee, and successor trustee, should be, and what powers that person(s) or institution has in administering the trust. It gives instruction on how you want the assets managed during and after your lifetime, when and to whom you want your assets distributed after your death, and whether you want the distribution to be given out all at once or over time. If the trustee is to hold on to some or all of the assets temporarily, the trust gives guidance and authority to the trustee to invest and/or manage the assets, and restricts whether he can loan money to others, save the money for future use, or use the assets to pay the living expenses of a certain individual or individuals.

After your death, the trustee's job is similar to the executor of a will in that he or she would need to gather your assets, pay any debts, claims and taxes, and distribute your assets according to your instructions. Unlike a will, however, this can all be done without court supervision or approval.

LG Law APC offers trusts at a reasonable price. Estate planning packages can be created and tailored to meet your specific needs.

 

Power of Attorney

A power of attorney is a written legal document that gives another person the right and authority to act on your behalf. It can be limited to special circumstances or it can be general. That authority will end if you become incapacitated unless you have a durable power of attorney. A durable power of attorney will remain in effect while you are incapacitated. This means that if you were suddenly unable to handle your own affairs, someone you trust (your “legal agent” or “attorney-in-fact”) could do so for you. Before signing a power of attorney, you must make sure you and the person you have designated fully understand all of the terms, and that the person you selected will be willing and able to act as requested.

Another option is a springing power of attorney, which would only become effective at a specified future date or event, such as a loss of capacity to act on your own behalf. You can authorize your agent to simply pay your bills, or you can empower your agent to handle nearly all of your affairs. This is usually a safer arrangement than adding someone else's name to your bank account. Your agent, however, cannot take anything of yours as a “gift” without your specific written authorization. These powers of attorney all expire when you die.

If you set up a living trust, it is the trustee who will provide the necessary management of the assets held in trust. In such a case, you might consider setting up a durable power of attorney for property management as well to handle limited financial transactions and to deal with assets that may not have been transferred to your living trust.

LG Law APC can prepare a power of attorney for you as part of an estate plan, or in special circumstances where they are only needed temporarily. Contact our office to find out more.

 

Advanced Health Care Directives

With an advance health care directive, you can also designate someone to make health care decisions for you in the event that you become unable to do so for yourself. In addition, this legal document can contain your wishes concerning such matters as life-sustaining treatment and other health care issues and instructions concerning organ donation, disposition of remains and your funeral. A health care directive also allows an authorized agent to access your medical information, which could be important in light of strengthened federal privacy laws. You can revoke the directive at any time, as long as you are still competent. You should always give copies to your health care agent, alternate agent, doctor, health plan representatives and family. And if you are admitted to a hospital or nursing home, take a copy with you.

If you become unable to make sound decisions or care for yourself and you have not made any such arrangements in advance, a court could appoint a court-supervised conservator to manage your affairs and be responsible for your care. The court's supervision of the conservator may provide you with some added safeguards. However, conservatorships can also be more cumbersome, expensive and time-consuming than the appointment of attorneys-in-fact under powers of attorney.

Contact LG Law APC to discuss your options.

 

Probate

Probate is a court-supervised process for transferring a deceased person's assets to the beneficiaries listed in his or her will, or to their heirs at law if they do not have a will. Typically, your named executor, or another person if you did not name an executor, would petition the court for authority to take charge of your assets, pay your debts and, after receiving court approval, distribute the rest of your estate to your beneficiaries. Simpler procedures are available for transferring property to a spouse or for handling estates in which the total assets amount to less than $100,000.

The probate process has advantages and disadvantages. The probate court reviews the executors handling of each estate, which can help protect the beneficiaries' interests. However, probates are public. Your estate plan and the value of your assets will become a public record. Also, because lawyer's fees and executor's commissions are based on a statutory fee schedule, a probate may cost more than the management and distribution of a comparable estate under a living trust. Time can be a factor as well. A probate proceeding generally takes longer than the administration of a living trust. Discuss such advantages and disadvantages with an estate planning lawyer at LG Law APC before making any decisions.

 

Guardianships

Guardianship is when a court orders someone other than the child's parent to have custody of the child, make decisions regarding the childs education, health and welfare, and manage any property belonging to that child.

There are different types of guardianships, and each has different laws governing them. Guardianships involving Child Protective Services (sometimes referred to as Child Welfare Services) the guardianship is handled through the juvenile court. If Child Protective Services (CPS) is involved in your case, you probably have to go to the juvenile court to find out what you can do. Go to our Links & Resources page to find out more about guardianships in juvenile court.

A probate guardianship does not involve Chile Protective Services, and it is handled in the probate court, and is set up because a child is living with an adult who is not the child's parent, and the adult needs a court order to make decisions on behalf of the child.

A guardianship is not the same as an adoption. In a guardianship, the parents still have parental rights, and they can request visitation, or termination of the guardianship. In an adoption, the parents' rights are permanently terminated. The parents no longer have the right to request visitation, or undo the adoption, and the rights of inheritance between parent and child shifts from the biological parent to the adoptive parent. The adoption is permanent, and the adoptive parents take on the legal and emotional role of the parent. While guardianships are supervised by the courts, once the adoption is final, there is no further court involvement.ݬ

In a guardianship “of the person,” the guardian has the same responsibilities to care for the child as a parent would. That means the guardian has full legal and physical custody of the child and can make all the decisions about the physical care of the child that a parent would make. Relatives, friends of the family, or other people suitable to raise the child can ask to be legal guardians. The guardian is also be responsible for supervision of the child and may be liable for any intentional damage the child may cause.

A guardianship of the person is sometimes needed when, no matter how much parents love their child, they are not able to parent. The court will look at what is in the best interest of the child to make sure the child is raised in a safe, stable, and loving environment. A legal guardian can care for a child when the parents are unable to due to physical or mental illness, military service, drug or alcohol abuse, incarceration, or some other reason.

A guardianship “of the estate” is set up to manage a child's income, money, or other property until the child turns 18. A child may need a guardian of the estate if he or she inherits or otherwise receives significant money or assets. In most cases, the court appoints the surviving parent to be the guardian of the child's estate. In some cases the same person can be the guardian of the person and of the estate. In other cases, the court will appoint two different people. The guardian of the estate usually must safeguard and manage the child's money and assets, and make smart investments.

If you are have concerns about whether you need to file for a guardianship, LG Law APC can help you determine which type of guardianship is right for you.

 

Conservatorships

A conservatorship is a court case where a judge appoints a responsible person or organization (called the “conservator”) to care for another adult (called the “conservatee”) who cannot care for himself or herself or manage his or her own finances. There are various types of conservatorships depending on the needs of the conservatee.

Probate Conservatorships based on the laws in the California Probate Code. They are the most common type of conservatorship. Probate conservatorships can be limited or general, depending on the circumstances and needs of the conservatee. A conservator can be appointed over the person to handle the care, such as food, clothing, medical care, etc., or the estate, to manage the financial matters, or both. The court can appoint a single person to act as conservator, or more than one person. Being appointed conservator of the person does NOT automatically make that person the conservator of the estate.

Lanterman-Petris-Short (LPS) Conservatorships are used to care for adults with serious mental health illnesses that need special care. These conservatorships are used for people who usually need very restrictive living arrangements (like living in locked facilities) and require extensive mental health treatment (like very powerful drugs to control behavior). Conservatees in LPS conservatorships cannot or will not agree to the special living arrangements or treatment on their own. LPS conservatorships must be started by a local government agency.

LG Law APC can help you determine which type of conservatorship is needed for your loved ones.

Family Law
Prenuptial/Premarital Agreements
Post Nuptial Agreements
Divorce
Domestic Partnerships
Military Divorce
Legal Separation
Alimony/Spousal Support
Spousal Support Modification
Paternity
Child Custody and Visitation Rights
Custody Modification
Child Support
Child Support Modification
Enforcement Actions
Domestic Violence
Restraining Orders
Property Division
Allocation of Debt
Grandparent Rights
Estate Planning
Wills
Trusts
Power of Attorney
Advanced Health Care Directives
Probate
Guardianships
Conservatorships
     

© 2012 LG Law A Professional Corporation • 12975 Brookprinter Pl., Ste. 220, Poway, CA 92064 • tel: 858-602-3620 • fax: 858-602-3621 • email: lghianni@lglawsd.com

 
Home About Areas of Practice Links & Resources Contact
   
site designed and maintained by epiphany design studio  
Back to Top