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Ely
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 86711
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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My brother is trying to get conservatorship of my other brother

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My brother is trying to get conservatorship of my other brother who is 59. His health has not changed and he easily follows and cooperates with a plan. He drives and is a very responsible person. He is somewhat mentally disabled but not severely. He has even helped taken care of my aging mother. I think this is an over reach of control. I am going to court to speak in his behave, unfortunately he has petitioned with my brother but I don't think he really understands what privileges he will be loosing. This is in California and I thought it would be a better fit if they could use an alternative to conservatorship. I don't think my brother should be a ward of the court. He could use help with his finances and continue to have minimal guidance with his daily life. He has lived alone with help before. What can I use as an argument to help my brother not to become a ward of the court?
Submitted: 1 year ago.
Category: Family Law
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am sorry for your brother's situation.

What can I use as an argument to help my brother not to become a ward of the court?

First of all, understand that when the Petitioner who wishes to become the conservator files, he must serve all interested parties in the case, which includes YOU. Even if he does not serve you, you as an interested party should still be able to file a pleading with the Court, arguing that he should not become a conservator.

Now, what can be used as an argument?

A limited conservatorship (Probate Code §§ 1827.5, 1828.5, 1830, & 2351.5) is used for a person who is developmentally disabled. A conservator of this type has limited powers to ensure that the conservatee may live as independently as possible. A general probate conservatorship (Probate Code § 1800, et seq.) is for all other adults who, due to physical injury, advanced age, dementia, or other factors, are unable to provide for their personal or financial needs. In a general probate conservatorship, a conservator may become responsible for the person, the estate, or both.

So someone in your situation may wish to argue:

"Respondent argues that the proposed conservatee does not exhibit or have limitations or issues that would be necessary for a limited (Probate Code §§ 1827.5 et seq) or full conservatorship (Probate Code § 1800 et seq).

Petitioner has not and cannot illustrate the need for conservatorship. The proposed conservatee has self-reliance and independence which allows him to live fully and without hindrance."

Of course, it would be up to the Court to make a decision in the end.

I hope this helps and clarifies. Good luck. Let me know if you need a sample pleading...

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Customer: replied 1 year ago.

It looks as though he is applying under Probate Code section 2590. It is conservatorship for both person and estate. Can I request to speak to my brother before the court makes a decision or at least have someone fully explain all the ramifications of this conservatorship? What is the extent of 2590?

Expert:  Ely replied 1 year ago.
L,

Thank you for your follow up.

Can I request to speak to my brother before the court makes a decision or at least have someone fully explain all the ramifications of this conservatorship?

Of course! You may appear in Court and call witnesses and/or testify yourself as a witness. Furthermore, the Court is very likely to appoint your brother (the one who has the slight mental challenge) a court-appointed attorney who is to look after his interests only, and who may joint the argument against the conservatorship.

What is the extent of 2590?

California Probate Code Section 2950 simply states:

It is the intent of the Legislature to do all of the
following:
(1) Reduce the incidence of financial abuse perpetrated against
mentally impaired elder adults.
(2) Minimize monetary losses to mentally impaired elder adults as
a result of financial abuse.
(3) Facilitate timely intervention by law enforcement, in
collaboration with the public guardian, to effectively protect
mentally impaired elder adult victims of financial abuse, and to
recover their assets.
(b) Any peace officer or public guardian of a county that has both
of the following, as determined by the public guardian of that
county, may take the actions authorized by this chapter:
(1) The existence of sufficient law enforcement personnel with
expertise in the assessment of competence.
(2) The existence of a law enforcement unit devoted to
investigating elder financial abuse and the enforcement of laws
applicable to elder abuse.
(c) This chapter shall be coordinated with existing mandated
programs affecting financial abuse of mentally impaired elders that
are administered by the adult protective services agency of the
county.


So at this point, the Court can decide whether the conservatorship may be granted, and if so, if it will be limited or full.

If full, then he would have full control over your brother and may make decisions for him and/or override his decisions, like an adult with a minor. But again, this is if he gets conservatorship.

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Customer: replied 1 year ago.

I feel very strongly that my brother has talked him into this petition. My sister in law, wife of the brother who wants conservatorship is also jointly requesting conservatorship. Is this unusual? If the court decides on a limited conservatorship, wouldn't just my other brother be enough to over see him?

Expert:  Ely replied 1 year ago.
L,

My sister in law, wife of the brother who wants conservatorship is also jointly requesting conservatorship. Is this unusual?

Yes. The Court normally appoints ONE conservator. Regardless of whether they are asking to be appointed as co-conservators, or, for the Court to pick one of them, the Court normally picks JUST ONE, and likely would do in this case (again if, conservatorship is awarded).

If the court decides on a limited conservatorship, wouldn't just my other brother be enough to over see him?

See above, please. The Court normally appoints one individual, only.

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Customer: replied 1 year ago.

Basically, my approach will be all my brother has accomplished on his own, the high level of responsibility, and his ability to follow a plan for his own self care. He does need help with his finances but his own person he can care very well for. Does this seem like a good approach? Neil has some savings here with me, not much, about $5,000, should I bring that? No one has requested that.

Expert:  Ely replied 1 year ago.
L,

Does this seem like a good approach?

YES, it does. Also, once this matter begins, you may wish to ask the Court to have a court-ordered psychological review. This may help your brother establish that he is indeed quite able to take care of himself.

Neil has some savings here with me, not much, about $5,000, should I bring that? No one has requested that.

I am not sure what you mean by "bring" this. You may wish to mention that he has saved up some money with you to help illustrate the point that he is financially-conscious. This is a plus.

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Customer: replied 1 year ago.

I am hoping that my brother is not trying to over reach to control what will be my brother's after my mother passes. I am trustee of her trust and when she passes 1/2 of the trust is to be put into a "Supplemental Needs Trust" for my brother and her trust clearly states that no part of the trust is to be construed as part of his "estate". I will then be the trustee of my brother's trust. Can he petition the court of California to control his trust even when the trust was made in AZ?

Expert:  Ely replied 1 year ago.
L,

Can he petition the court of California to control his trust even when the trust was made in AZ?

No. From what you are telling me, you are the Trustee, and as such, only you will remain the Trustee. Any conservator appointed (if any) will simply have the ability to communicate and request funds from you as the Trustee for the brother, etc.

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Customer: replied 1 year ago.

My last question, and I want to thank you for all your help. How strong of an influence will it have on the court that my brother who is disabled, is petitioning along with my other brother? Thank you again for your great help.

Expert:  Ely replied 1 year ago.
L,

My last question, and I want to thank you for all your help.

It has been my pleasure. I thank you for being direct in your questions, which allows me to provide pinpoint information.

How strong of an influence will it have on the court that my brother who is disabled, is petitioning along with my other brother?

Hmm... this is subjective. If the brother wants conservatorship on him, then this is a factor FOR conservatorship. You'd have to show that the brother who has the mental issue may have been manipulated by the older brother to sign off on this pleasing...

Thank you again for your great help.

You got it!

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Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 86711
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 2 other Family Law Specialists are ready to help you

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