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I am guardian for my developmentally disabled brother. my

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i am guardian for my...
i am guardian for my developmentally disabled brother. my sister and i cared for him
for 43 years and my sister died in july she left 600 thousand in a trust for rodger with
me as trustee and nieces and nephews as beneficiaries now they are contesting
will together with my siblings. my lawyer says the judge says i must come to
an agreement on visitation of family members with my brother. they are saying i am isolating him
from them. most have had little contact with him in the past and one brother
had my disabled and brother and sister over for the holidays. I don't understand how my guardianship is being brought up in contest of a will. i think the will should be dealt
with an then if family wants to object to my guardianship that should be dealt with
after the will is resolved. Should i also employ a guardian attorney in addition
to the lawyer probating the will. Do you have any other advice. Dealing with
visitations and caring 24/7 for my disabled brother sounds absolutely daunting.
My one brother is leading the contesting of the will encouraging others to join in
saying i am isolating my brother my attorney advised me not to talk to
the family members. So I am following attorneys advice. he said it is ok for my brother to talk with them on telephone and I have
allowed it but only one family member has called and they have not called for three weeks. only 1 nephew called once in over 4 months and one of his other brothers.
I would appreciate answer to my questions and any advice or direction you think i
should take thank u
Submitted: 1 year ago.Category: Legal
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Answered in 7 minutes by:
10/23/2016
Lawyer: CalAttorney2, Attorney replied 1 year ago
CalAttorney2
CalAttorney2, Attorney
Category: Legal
Satisfied Customers: 10,244
Experience: Civil litigation attorney for individuals and businesses.
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Hello, My name is ***** ***** I will assist you today. Please give me a few minutes to write a response and identify any additional resources for you.

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Lawyer: CalAttorney2, Attorney replied 1 year ago

Dear Customer,

I am sorry to learn of this situation.

I would suggest that you get a second opinion regarding this matter.

While it is possible that the way in which your brother's estate is set up, you may be both the guardian of the person (responsible for his care, responsible for who he sees (visitation), etc.), and also guardian of the estate (so responsible for his money), this is a separate proceeding from the probate of your sister's estate.

I also believe that you likely can be much more aggressive with your siblings - it does make sense to try to avoid unnecessary litigation, but if your siblings are intent on causing problems anyway (they simply want to try to get a part of the money that your sister set aside), it may make much more sense to be more aggressive on you and your brother's behalf to stop this.

I would recommend seeking out a lawyer that has more experience with guardianship law (they will also be practitioners in probate law), and see if they can assist you.
They should be doing things such as ensuring that the money is directed into a special needs trust to help avoid cutting into your brother's public benefits as well as dealing with your family.

But it seems based only on what you have posted here that your current attorney is not aggressively representing your case, and may not be approaching this in a manner to protect the estate in a way to preserve your brother's needs.

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Customer reply replied 1 year ago
I am sorry I don't understand when you say it is possible that the way in which your brother's estate is set up, you may be both the guardian of the person (responsible for his care, responsible for who ......... My sister died we were my disabled brother's care takers for 43 years. She left a will
and money in a trust for my disabled brother. I was co guardian with my sister. Now I am
sole guardian So while it is possible that the way in which your brother's estate is set up what brother
Customer reply replied 1 year ago
is there an additional charge to call me so would the total cost be 64 plus 59
Lawyer: CalAttorney2, Attorney replied 1 year ago

It depends on what the guardianship order says (a guardianship can be for the person, or for both the person and the estate) - this is different from being "caretakers" (an informal, non-legal, relationship).

I do not participate in the phone call service, however, if you would like to speak to one of the other attorneys on the forum, you can post a request for additional services and they will send you information for that service, it is an additional cost.

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Customer reply replied 1 year ago
ok am guardian for person and property and it was done through the surrogates court
Customer reply replied 1 year ago
I am guardian for person and property and it was done through the surrogate court
Lawyer: CalAttorney2, Attorney replied 1 year ago

So you have responsibility for both your brother's finances, and his person.

Regarding your sister's estate and probate, you are still going to want to ensure that when it is probated (distributed) that your brother's portion is set into a special needs trust - doing so will ensure that he does not lose any public benefits he is receiving (this needs to be done prior to the distribution).

Again, your current attorney seems to be handling this in a curious manner, and probably not doing so aggressively enough to both extricate you and your brother from your family's greed, and is unnecessarily draining the estate's assets.

(But I do not have the case file, and we are only working off the abbreviated information from the "Q&A" forum here).

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Customer reply replied 1 year ago
the will establishes a trust to ensure that he does not lose any public benefits and when will is probated the funds will be placed in the trust. handling this in a curious manner. what exactly do you think this is
Customer reply replied 1 year ago
what should attorney be doing to agressively extricate you and your brother from your family's greed and how does visitation become a topic when probating the will? I really could use some specific help
Lawyer: CalAttorney2, Attorney replied 1 year ago

I would suggest meeting with another attorney to review your case - find one that specializes in guardianship matters (as I noted, they will also be probate attorneys).

Based only on what you posted, I would speculate that the matter could be handled much more aggressively - both based on your description and the fact you are seeking out advice on our forum despite the fact you are represented by an attorney currently and are frustrated with the progress.

A clear designation of funds from a sister who was a long term caretaker to a disabled sibling into a special needs trust should not be a contested matter, and should easily be defended in probate court - there shouldn't be any need to kowtow to the other family members who are only now showing an interest in him.

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Customer reply replied 1 year ago
isn't it normal to try to settle instead of incurring legal expenses to fight the people contesting the will
Lawyer: CalAttorney2, Attorney replied 1 year ago

It is normal to avoid unnecessary litigation - but it is also not necessary to give into unreasonable demands, particularly when you have a very strong position.

(But this is a strategy decision, not a "black and white" issue).

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Customer reply replied 1 year ago
they are saying i influenced my sister and that she did not understand what she was doing
the current will was executed one month before she died and she was ill before she died her previous will also set up a trust and named me as co trustee and named additional beneficiaries in the passing of my brother
Customer reply replied 1 year ago
again should visitation be part of the probate process?????
Lawyer: CalAttorney2, Attorney replied 1 year ago

Okay,

They are claiming that you exerted undue influence (sometimes termed "financial abuse of an elder").

But despite this, you do not have to avoid confrontation.

I still do not have all the information that you have, and I do not have the ability to provide you with a second opinion on this site (I cannot review your case file or interview you about all of the parties, etc.).

But I do suggest you at least consult with a second lawyer locally - it doesn't seem that you are getting the results/answers that you need from your current lawyer, and it does seem that your current lawyer is confusing the guardianship issues with the probate issues (even though it is possible to discuss multiple matters in a mediation or negotiation).

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Customer reply replied 1 year ago
i did not influence her she would not say what her final wishes were and i urged her
to set up a special needs trust for my brother not knowing that she had done so 13 years ago
Lawyer: CalAttorney2, Attorney replied 1 year ago

I did not believe that you had done so.

I suspect your family is simply using this as a mechanism to try to take part of your sister's estate.

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Customer reply replied 1 year ago
ok i will try to get a second opinion. thank u for trying to help and yes i think your suspicions
are correct. My sister did not tell anyone including the attorney who drew up the new will
about all the money she had and once that came to light light bulbs started going off in my
siblings.
Customer reply replied 1 year ago
do u have any more comments
Lawyer: CalAttorney2, Attorney replied 1 year ago

If your sister was represented by counsel, this really shouldn't be a successful contest against the estate.

(I would definitely speak to another lawyer).

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Customer reply replied 1 year ago
ok tu
Customer reply replied 1 year ago
oh one more thing
Customer reply replied 1 year ago
do u think if i tell my attorney i am not willing to try to settle before the will goes to probate
will this have a negative impact on my guardianship could i be accused of not looking
out for my brother's best interests by trying to settle now?
Lawyer: CalAttorney2, Attorney replied 1 year ago

No, this shouldn't have an impact on your guardianship (your communications with your attorney are privileged).

But, I would recommend speaking with another attorney first - you may find that it is in you (and your brother's) best interest to switch counsel and re-define your approach to the matter. Alternatively, after speaking to another attorney, you may find it easier to approach your current attorney with better defined instructions on how to approach negotiations before trial and instructions for hearing/probate.

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Customer reply replied 1 year ago
r u still here
Lawyer: CalAttorney2, Attorney replied 1 year ago

Yes.

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Customer reply replied 1 year ago
ok thanks again i will have to pay another attorney out of the funds that were
supposed to go in the trust for my brother
Customer reply replied 1 year ago
any other comment
Lawyer: CalAttorney2, Attorney replied 1 year ago

Yes, but spending a small amount for a consultation to at least get a second opinion is probably worthwhile in lieu of spending money on an unnecessary (or unfair) settlement arrangement.

Do this on a cost/benefit analysis - (especially since your family members are simply approaching this for money) - if you can pay them off with a small amount, then go ahead and do that, but if they are looking for lots of money, spend a small amount, get that second opinion and make an informed decision from there (change course with your current lawyer, hire the second lawyer to take over, or some other course of action).

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Customer reply replied 1 year ago
are u still here
Lawyer: CalAttorney2, Attorney replied 1 year ago

Dear Customer,

It takes me a few minutes to type a considered response, please be patient.

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Customer reply replied 1 year ago
ok thanks sorry to rush u i will consult another attorney thanks again i would have no
money to pay the family contesting the will off and i would not use the trust fund to do that.
so that would not be an option
Lawyer: CalAttorney2, Attorney replied 1 year ago

I would recommend finding another lawyer then - you need someone who is willing to be more aggressive on your behalf.

Attorneys do take different approaches, and not all are going to be as risk adverse as your current lawyer appears to be.

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Customer reply replied 1 year ago
well of course he is saying it is in my best interest and i am 75 years old and my brother is 58 and his life expectancy is around 60 so dragging out would probably mean he would not benefit from the trust he probably is not going to benefit even if i settle since i probably won't have control and will always having to spend time trying to make funds available for the good of my brother
and i will probably always be challenged as to any funds i spend
Lawyer: CalAttorney2, Attorney replied 1 year ago

I'm not sure that is the case - it would be possible to get a court order for preliminary distributions to your brother even if a hearing or trial were required.

I cannot say for sure that your lawyer isn't pursuing this in the most effective manner - I don't have all the facts - but there are generally more than one way of going about prosecuting a claim, if you are not happy with the way your attorney is advocating for you, I would recommend at least speaking to another. Getting a second opinion is not that great an investment and if it yields you a significantly different opinion/course of action, it would definitely be worth the time.

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Customer reply replied 1 year ago
ok i will look for a guardian attorney in my local area thanks again have a good day
i am finished with my questions
Lawyer: CalAttorney2, Attorney replied 1 year ago

You are welcome, and I do wish you the best with this matter.

Thank you for using our forum, and please do not forget to rate my service (the series of 5 stars next to the chat window) so that I can receive credit for assisting you.

If you would like to direct future questions to me specifically, you can do so by starting your new question with "ForCustomerquot; and a moderator will notify me.

Thank you again, and again I wish you the best.

Bill

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