How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Law Pro Your Own Question

Law Pro
Law Pro, Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 23632
Experience:  20 years trial experience in defense of criminal cases
Type Your Criminal Law Question Here...
Law Pro is online now
A new question is answered every 9 seconds

One attorney told me that filing criminal charges against my

Resolved Question:

One attorney told me that filing criminal charges against my brother would be a colossal waste of time, that the DA already has so many big cases on it's ledger that my case against my brother will probably never even be heard. Even if that's true, would it be wise to at least make formal complaints to the police and the DA about our brother's malfeasance, just to cover ourselves in future issues with him?
Submitted: 12 months ago.
Category: Criminal Law
Expert:  Law Pro replied 12 months ago.

Welcome to JustAnswer! My goal is to do my very best to understand your situation and to provide a full and complete excellent answer for you.

My name is XXXXX XXXXX I'm going to assist you with your question.

Please bear with me if you believe my answer isn’t coming fast enough because I’m also working with other customers too. I apologize for any seemingly late response.


I have to review our past conversations to better give you an answer. But that statement by the other attorney certainly would appear to be a little "jaundiced" in perspective?
Expert:  Law Pro replied 12 months ago.
If your brother has wrongfully stolen monies from your mother or taken monies when a conservator has been appointed is clearly wrongly illegal.

When a conservator has been appointed - they are appointed by a judge to protect and manage the financial affairs and/or the person's daily life due to physical or mental limitations or old age. The conservator may be only of the "estate" (meaning financial affairs), but may be also of the "person," when he/she takes charge of overseeing the daily activities, such as health care or living arrangements of the conservatee.


Once the conservator is appointed - your brother doesn't have any legal powers or authority over her assets. If he does anything involving such without the consent of the conservator who should be presenting a motion to the court for their consent.

So, if your brother isn't getting the approval and and consent of the conservator and court - that's wrongful conduct.
Law Pro, Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 23632
Experience: 20 years trial experience in defense of criminal cases
Law Pro and 7 other Criminal Law Specialists are ready to help you
Customer: replied 12 months ago.

Thank you for your answer, Fred. As always, very helpful. But my question was pertaining to actually filing our case with the DA. One attorney told me that it would be essentially a waste of time, but I feel that anything that we can bring against our brother, whether the DA accepts the case or not, will help us build a case against him in the future. Would you recommend that we make a formal complaint with the Sheriff's department in our jurisdiction then file with the DA's office as I have read on the Internet, or simply drop our entire case? Also—do you think that our conservator (whom we are paying a lot of money) be made responsible for this hidden transaction, and that we might even think of firing her and replacing her with someone better?? Thanks.

Expert:  Law Pro replied 12 months ago.
Go right to the DA's office and file a criminal complaint. Take with you a copy of the court order as to the designation/appointment of a conservator. Take with you any documentation or evidence of his wrongful conduct after that date.

The DA will pursue such - at a minimum - they will get him to return the monies and not charge him criminally.
Customer: replied 12 months ago.

On the subject of conservatorship, Fred, I think that our court-appointed conservator is a total joke. She rarely returns our phone calls or emails, and has failed on every occasion to prevent our brother from pillaging what remains of our family inheritance.


Question One: Should we try to fire her and replace her with someone better equipped to handle our problems? And, can we even hold HER responsible for allowing this SECOND theft by our brother (apparently,


he has stolen $200,000. before, using this same HELOC mortgage loan deal). She's been charging us by the hour for years, yet has apparently done NOTHING to prevent these unauthorized thefts!

Expert:  Law Pro replied 12 months ago.
Oh, yes. If the conservator isn't performing their due diligence and you can point to any negligence on their part. Not only will the judge remove them but they may be liable for their inaction too.

Malfeasance is a comprehensive term used in both civil and Criminal Law to describe any act that is wrongful. It is not a distinct crime or tort, but may be used generally to describe any act that is criminal or that is wrongful and gives rise to, or somehow contributes to, the injury of another person.

 

Malfeasance is an affirmative act that is illegal or wrongful. In tort law it is distinct from misfeasance, which is an act that is not illegal but is improperly performed. It is also distinct from Nonfeasance, which is a failure to act that results in injury.

 

The distinctions between malfeasance, misfeasance, and nonfeasance have little effect on tort law. Whether a claim of injury is for one or the other, the plaintiff must prove that the defendant owed a duty of care, that the duty was breached in some way, and that the breach caused injury to the plaintiff.



I think that given the facts you stated - you could have a review by the judge of the conservator's inactions and negligence and have them removed. Whether there is a negligence claim where you could pursue their malpractice insurance may be an issue. If they didn't act when they knew they should have - they very well may be liable.


As stated as to the duties of a conservator:


You have a fiduciary duty to the protected person, meaning that you must always act in the best interest of and with undivided loyalty to the protected person, avoid transactions that cause a conflict of interest, and administer the conservatorship estate with care and prudence.
You must always act in the best interest of the protected person. You should not enter into transactions in which you will benefit at the expense of the protected person. In some instances, you may need to get the approval of the Court before finalizing any transactions.
You must keep the conservatorship estate separate from your own assets, and the assets must be readily indefinable.
You must manage the conservatorship estate as a prudent person would in similar circumstances. You are ultimately accountable and may employ the use of professionals and other agents in order to carry out your duties, unless otherwise specified by the Court,
The Court may require you to obtain a type of insurance policy called a “fiduciary bond.” The bond assures that the protected person’s assets are protected in the event that you fail to carry out your duties and there is a loss to the conservatorship estate. If a bond is required, it is generally paid for with the protected person’s funds.
Law Pro, Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 23632
Experience: 20 years trial experience in defense of criminal cases
Law Pro and 7 other Criminal Law Specialists are ready to help you
Customer: replied 12 months ago.

Here's the BIG question, Fred.


Our attorneys are bleeding us dry, not helping us at all. Is there any way to make our older sister both conservator of Mother's finances AND Conservator of the Person? Would it be difficult to oust our court-appointed conservator, and approx. how much would it cost? We're getting killed by legal fees... it will be doubtful if anything in our inheritance is left after all these abuses.


Just left you a little bonus... not much but we're cash strapped!

Expert:  Law Pro replied 12 months ago.
I would think it might not cost anything if you can present a motion to the court to do such. I would think that the conservator may consent to such given they aren't doing anything now.


At most $500 to file the motion and get before the judge. It' a simple motion to substitute "X" (your sister) for "Y" the conservator.

Basically you state:

The conservator was appointed by the court on _______

The heirs and beneficiaries beleive that ______ would better serve the interests of the _______ (your mother).

The heirs and beneficiaries believe that the cost of the conservator is beyond the means of the estate of _______(your mother).

That if the appointed conservator continues in this role there will be nothing left for the heirs and beneficiaries.

Wherefore, the heirs and beneficiaries request that ____ be substituted conservator in the estate of _________________
Law Pro, Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 23632
Experience: 20 years trial experience in defense of criminal cases
Law Pro and 7 other Criminal Law Specialists are ready to help you

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Your Expert advise has provided insight on a difficult situation. Thank you so much for the prompt response. I will definitely recommend your website to my friends. Norma Pensacola, FL
< Last | Next >
  • Your Expert advise has provided insight on a difficult situation. Thank you so much for the prompt response. I will definitely recommend your website to my friends. Norma Pensacola, FL
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
 
 
 

Meet The Experts:

 
 
 
  • Fran L.

    JustAnswer Criminal Law Mentor

    Satisfied Customers:

    8061
    18 yrs of NYC public defense. Extensive arraignment, hearing, trial experience.
< Last | Next >
  • http://ww2.justanswer.com/uploads/RE/retiredlawyer/2012-6-6_19326_franL.64x64.jpg Fran L.'s Avatar

    Fran L.

    JustAnswer Criminal Law Mentor

    Satisfied Customers:

    8061
    18 yrs of NYC public defense. Extensive arraignment, hearing, trial experience.
  • http://ww2.justanswer.com/uploads/RA/ratioscripta/2012-6-13_2955_foto3.64x64.jpg Ely's Avatar

    Ely

    Counselor at Law

    Satisfied Customers:

    2079
    Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
  • http://ww2.justanswer.com/uploads/NA/nathanmoorelaw/2011-5-31_21375_headshotbig.64x64.jpg Nate's Avatar

    Nate

    Lawyer

    Satisfied Customers:

    1625
    Over 10 years of criminal defense practice.
  • http://ww2.justanswer.com/uploads/LA/LawTalk/2012-6-6_17379_LawTalk.64x64.JPG LawTalk's Avatar

    LawTalk

    Lawyer

    Satisfied Customers:

    1434
    30 years legal experience
  • http://ww2.justanswer.com/uploads/PH/philip.simmons/2012-6-7_161915_BIGPhilipSimmons.64x64.jpg P. Simmons's Avatar

    P. Simmons

    Lawyer

    Satisfied Customers:

    1418
    16 yrs. of experience including criminal law.
  • http://ww2.justanswer.com/uploads/marshadjd/2009-6-1_194320_marshajd.jpg Marsha411JD's Avatar

    Marsha411JD

    Lawyer

    Satisfied Customers:

    1380
    Licensed attorney with 27 yrs. exp. in criminal law
  • http://ww2.justanswer.com/uploads/RO/RobertJDFL/2012-6-6_175352_7538220120606.64x64.jpg RobertJDFL's Avatar

    RobertJDFL

    Lawyer

    Satisfied Customers:

    1300
    Experienced in multiple areas of the law.