losr Conservatorship


Honored nine times. Srinoi G. Rousseau of the Law Office of Srinoi Rousseau has been designated again as a Northern California Super Lawyers.

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t the end of March, with the retirement of Katherine A. Montgomery, Camp Rousseau Montgomery, LLP completed its life.

Srinoi G. Rousseau will continue to provide for the legal needs of elders, the disabled, and their families in the San Francisco Bay Area under the name Law Office of Srinoi G. Rousseau. We also have a new location at 1001 Marina Village Pkwy Suite 400, Alameda CA.

We are now settled into our new work space and look forward to serving your needs. If you are interested in becoming a new client or have questions, please contact Deirdre O’Connell at 510-465-3885.

Honored eight times. Partners Katherine A. Montgomery and Srinoi G. Rousseau of Camp Rousseau Montgomery, LLP, have been designated again as Northern California Super Lawyers.

We haven’t been spending our time updating our web site, but we are working hard for our clients and their loved ones. We’re a group of people who believe in keeping the high cost of legal representation as low as possible.

We have a new conservatorship client, who hired us in place of their previous counsel. We were shocked to see the fee request that attorney submitted, and was awarded by the Court. It was in the neighborhood of $33,000 to establish an uncontested conservatorship and settle the first account. If we charged those types of fees, it would make it impossible for us to sleep at night. We charge a fraction of that outrageous fee and feel it is a duty and responsiblity to save the money for the care of the conserved person.

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he Elder Financial Protection Network in partnership with Bank of the West and NBC Bay Area has produced a 30-minute documentary entitled Wise Money: Be Wise, Be Aware, Prevent Elder Financial Abuse.

Be Wise, Be Aware, Prevent Elder Financial Abuse

Be Wise, Be Aware, Prevent Elder Financial Abuse

The documentary is a cautionary tale of the ways in which elders can become the victims of the crime of financial abuse. Among the topics covered are: who is perpetrating the crime, how they target victims and who those victims are; sweepstakes scams and exploitive care givers; consumer fraud from shady auto repair shops to contractors; and what you can do to protect yourself.

The program will air on Father’s Day, June 13 at 3:00 PM. It also can be viewed at anytime on YouTube.com by clicking here (presented in three ten minute segments).

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ur experience has shown that not keeping accurate and complete records as Conservator significantly increases costs and can lead to problems for Conservators when it comes time to file the accountings required by the Court. Therefore at the outset we help our clients understand and observe the following record keeping principles and practices:

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Because a Conservatorship involves taking over the ability to make decisions for the Conservatee, everyone involved takes the task very seriously and there are many safeguards, which have the side effect of making the process expensive. We often use as an analogy, what does a car cost?…

We charge by the hour for our work. Our first goal is to find a way to avoid the expense and effort of a Conservatorship altogether by finding an alternative. If that’s not possible, we try to control the hourly fees by assigning as much work as possible to non attorneys, whose time is billed at a lower rate.

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“Adult Protective Services (APS) responds to reports from individuals, concerned citizens, social service and health providers, and law enforcement representatives about adults with developmental disabilities, physically and mentally disabled adults, and the elderly, who may be physically or financially abused, neglected, or exploited.

Anyone aged 18 to 64 who, because of their mental or physical disability, or who is aged 65 or older and is suspected of being abused or neglected, is eligible for APS without regard to income.”

Notify APS immediately if you suspect elder abuse. To obtain more information or to report adult or elder abuse call APS in the San Francisco Bay area of CA at (510) 577-3500 or toll free at (866) 225-5277 (national number), 24 hours a day and all referrals are confidential.

Phone: (510) 577-3500
Link: Adult Protective Services (APS)
Updated: 21 Apr 2010

“The Regional Center of the East Bay (RCEB) is a private, non-profit corporation providing services and support to individuals with developmental disabilities under contract with the California Department of Developmental Services.”

Phone: (510) 383-1200
Link: Regional Center of the East Bay (RCEB)
Updated: 21 Apr 2010

Limited Conservatorships for the Developmentally Disabled may be useful for families who have a child who is: near or at legal adulthood; in need of help with decision making; in need of an advocate; or incapable of giving consent.

Following are some commonly asked questions and answers about Limited Conservatorships:

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The California Department of Developmental Services has published a workbook entitled THINKING AHEAD, My Way, My Choice, My Life at the End. This workbook is a simplified version of an Advanced Health Care Directive which can be used by some developmentally disabled persons to plan end-of-life choices.

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ere’s a nightmare situation, not uncommon in Elder Law practice.

A parent lives in squalor, without proper nutrition, refuses to see a doctor, doesn’t bathe, doesn’t take medications that were prescribed years ago after the last contact with a doctor, refuses help, won’t move to assisted living, the house needs repair, and so on. Or, to make things even worse, there are two parents in this situation. Either way, the adult child is desperate for a solution.

It is commonly believed that establishing a Conservatorship, through a costly and stressful Court-supervised process, will force the parent(s) to cooperate, but this is often not the case. Many people in this condition don’t care what piece of paper someone has from what Court; they will not, or cannot, live a safer or more appropriate life, and will refuse to cooperate with all efforts to improve the situation. Conservatorship is not a magic wand, and comes with no method to enforce a Conservator’s decision that the parent(s) live elsewhere, eat, take pills, see a doctor, or fix the house. It may be that waiting for an acute medical condition to occur, forcing hospitalization and possibly nursing home placement of someone who is too sick to fight back, is the only solution.

This interim is a good time to ask a care manager to take a look, even though the parent adamantly refuses to consider having help in the home. When there appear to be untreated medical problems, a care manager who is an RN, or has one on staff, may be preferable. If the care manager can get into the house, options for obtaining some measure of cooperation may be apparent.

The care manager’s assessment may also help determine whether or not, if the child is considering petitioning for Conservatorship, a Conservatorship of the Person would be workable. It is not advisable to request authority to manage food, clothing, shelter, and physical health if there is no way to perform those duties. Care managers, however, often know very skillful and experienced caregivers who can be effective in the most difficult situation.

The child must be prepared to sign a contract for the assessment, and be financially responsible for it. This usually amounts to a few hundred dollars and is almost always a good investment.

Even if a solution does not immediately result, the child will have a relationship with someone who can be called in if things change, and will feel better for having done whatever is possible under the current circumstances.

A version of this article originally appeared in the Bulletin of the Alameda County Bar Association.

Information about the people involved:

  • Proposed Conservatee’s personal information:
    • Name: full legal name and any aliases;
    • Date of birth;
    • Social Security number;
    • Residence: mailing address and phone number;
    • Current whereabouts (if not currently living at residence): mailing address, facility name (if any) and phone number;

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“Relatives in the first and second degree” refers to the group of relatives of the subject of the proceeding (conservatee or decedent for example) that the court often requires be mailed a notice of hearing (usually 15 days in advance).

The members of this group are: spouse or domestic partner; parents; children; siblings (brothers and sisters); grandparents; and grandchildren.

The following is required for each person on the list: a current mailing address, their relationship to the subject, and their age (if they are 18 or older this can be simply “adult”).

If there are no living relatives in the first or second degree, then the relatives in the third degree must receive notice. They are: great grandparents; uncles and aunts; nephews and nieces; and great-grand children.

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he risk factor we will examine here concerns your need to have a financial power of attorney, even if you already have a trust.

Most of our clients are aware that they may have one or more periods of incapacity before reaching the end of life, and have read enough horror stories to know about the need to complete an Advance Health Care Directive. But people often say to us, “I have a trust and all my assets have been properly transferred into it, so I don’t need a financial power of attorney, right?” Wrong.

A trust is a container, like a bucket. The Trustee in office at any given time controls the assets that are in it, such as real property, investment accounts, and tangible personal property that has been assigned to it. But many financial affairs and transactions are about other things. For example, most people have income from one source or another, and sometimes it is necessary to communicate with Social Security or an annuity company about that. Medicare is famous for sending notices that may require a reply. And what if an asset has been left outside the trust, or a home was taken out for re-financing and never put back in? While the trustee can manage the trust, someone else must address these things, because they are not in the trust.

Just as completing an Advance Health Care Directive is important, having a financial power of attorney is also part of a complete estate “plan”. As the word implies, the plan is about having someone in place to manage whatever you cannot, if you become incapacitated.

There is nothing more frustrating to us than having to launch a Conservatorship solely because there is no financial power of attorney, with or without a trust. No one document does everything. But a good set of documents should avoid the need for Conservatorship, and prevent a lot of turmoil for your family.

Click Conservatorship Risk Factors to see all of the posts in this series.

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he risk factor we will examine here concerns your family’s dynamics combined with your not having an Advance Health Care Directive or Power of Attorney for Health Care.

As a practical matter, doctors and hospitals will look to the closest relative for medical decisions should you not be able to make them yourself. However, what happens if your family is one where there is a strong difference of opinions? Could this difference of opinions result in fighting? Take a close look at your family:

  • Are you in a blended family with stepchildren?
  • How strong are the personalities in the family?
  • How combative?
  • Are there strong different religious beliefs in your family?
  • Are there any family members with a mental illness that could make a family consensus difficult?

If there are any difficulties with your family in making decisions about your medical care, at some point the hospital will ask that a Conservator be appointed so that the hospital has one person legally responsible for your medical care.

Assuring Your Wishes Will be Followed

You can best take control of this situation now while you have capacity. By preparing and signing an Advance Health Care Directive or Power of Attorney for Health Care, you reduce your risk of Conservatorship of the Person. If you state your wishes, pick your agent and successor agent, you control what will happen if you become incapacitated. It also makes it easier for your family by eliminating future conflicts during what will be a stressful time for your family.

Click Conservatorship Risk Factors to see all of the posts in this series.

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