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Elder Law Attorney Woodland Hills & Los
Angeles Substituted Judgment Petition Attorney
818-340-4479
800-300-9977
Click here To email us:
Mina Sirkin
Mina Sirkin, Woodland Hills Elder Law and Estate Litigation Law Attorney
Board Certified Specialist in Estate Planning, Trusts and Probate Law
Trust Litigation
Los Angeles
Probate
Litigation Los Angeles
Conservatorship
Attorney
Los Angeles
Living Trust Attorney Los
Angeles
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SUBSTITUTED JUDGMENT
PETITION LOS ANGELES ATTORNEY
Many
clients often ask us regarding
a substituted judgment petition in Woodland Hills and Los Angeles, and
whether they
have a right to file or object to a substituted judgment petition in a
conservatorship case.
What
is a Substituted Judgment Petition in Conservatorship Cases in Los
Angeles?
A substituted judgment petition in
Los Angeles is used to ask the court
to order the conservator to take certain types of actions, which many
times include making a will, or a trust, funding a trust, or making
gifts on behalf of the Conservatee, as well as other types of actions.
Who can file a Substituted
Judgment Petition?
A conservator or other interested person may file a petition for an
order of the court requiring the conservator to take a proposed action.
An interested person is usually a family member, a spouse, or domestic
partner, but can be any person who is affected by the decision.
What types of requests or
actions can be considered in a Substituted
Judgment Petition?
Any action benefiting the conservatee or the estate.
Gifts: Providing gifts for any purposes, and to any charities,
relatives (including the other spouse or domestic partner), friends, or
other objects of bounty, as would be likely beneficiaries of gifts from
the conservatee. For example, an action, which would minimize
current or prospective taxes or expenses of administration of the
conservatorship estate or of the estate upon the death of the
conservate.
While the actions are not limited, here are some of the common actions
and requests in substituted judgment petitions:
•
Making a gift of principal or income, or both, of
the estate, outright or in trust.
•
Transferring, conveying or releasing the
conservatee’s contingent and expectant interests in property, including
marital property rights and any right of survivorship incident to joint
tenancy or tenancy by the entirety.
•
Exercising or releasing the disabled person’s
powers as donee of a power of appointment.
•
Entering into specific types of contracts.
•
Creating a revocable or irrevocable trust.
•
Transferring assets to a trust created by the
conservator or conservatee.
•
Exercising options in securities.
•
Change beneficiaries or ownership, to assign
rights, to borrow, or to receive cash value in return for a surrender
of rights under insurances, annuities, mutual funds, retirement
accounts, and pensions.
•
Exercise the rights of the conservatee in someone
else’s will or estate.
•
Exercising disclaimers.
•
Revoking or modifying a revocable trust or giving
up the right to revoke or modify a revocable trust, unless the trust
provides restrictions on this as to a conservator.
•
Making elections referred to in Section 13502 or an
election and agreement referred to in Section 13503.
•
Making a will or Trust.
•
Making or revoking a revocable transfer on death
deed.
What can prevent the Court from
issuing a Substituted Judgment Petition
under Ca Probate Code 2582?
If the Court will not grant the substituted judgment
petition if:
1.
The Conservatee is opposed to the Petition;
2.
The Conservatee has capacity to oppose the
proposed action;
3.
The proposed action will have an adverse effect on
the estate; or
4.
If the action is taken, what remains of the estate
will not be sufficient to support the needs of the conservatee, or
those he/she has to legally support.
What types of things does the
court take
into consideration in evaluating substituted judgment petitions?
All relevant facts and circumstances are taken into consideration in
substituted judgment petitioner, but some are more important than
others, such as the following:
•
Whether or not the conservatee has legal capacity
for the proposed transaction;
•
The probability of the conservatee’s recovery of
legal capacity;
•
Past donative intentions, practices, and conduct of
the conservatee;
•
The character traits of the conservatee.
•
Closeness and relationship and intimacy of the
prospective recipients, with the conservatee, their standards of
living,
•
Whether or not they would be natural objects of the
conservatee’s bounty by any objective test based on such relationship,
intimacy, and standards of living.
•
The wishes of the conservatee.
•
Prior estate plans of Conservatee;
•
What is likely happen after the Conservatee’s death;
•
The value, liquidity and other factors in the
estate.
•
The impact of minimization of current or
prospective income, estate, inheritance, or other taxes or expenses of
administration.
•
What motivated the proposed action in the
substituted judgment petition;
•
What is the likelihood that Conservatee would have
taken this action, if he/she had capacity.
•
Indicators of abuse by others.
Mina
N. Sirkin is an substituted judgment attorney at the Law Offices of
Sirkin and Sirkin, and practices Elder
law in Woodland Hills, and Probate
Conservatorship in Woodland
Hills and Los Angeles County. We help families of people with
advance elder
law
planning needs in Woodland Hills to reach their goals. To reach our
elder
law and trust attorneys by telephone, please call 818.340.4479 or email
us at Info@SirkinLaw.com.
OFFICE
LOCATIONS
Main Office:
21550 Oxnard Street, Third Floor
Woodland Hills, CA 91367
Phone: 818. 340. 4479
Fax: 818. 340. 7952
E-Mail: sirkinlaw@aol.com
West Los Angeles
11400 Olympic Blvd., Suite 200
Los Angeles, CA 90064
Tel: 800-300-9977
Irvine
19800 MacArthur Blvd., Suite 500
Irvine, CA 92715
Tel: 800-300-9977
LAX area
6601 Center Drive West, Suite 500
Los Angeles, CA 90045
Tel: 800-300-9977
Downtown Los Angeles
445 N. Figueroa St., Suite 2600
Los Angeles, CA 90071
Tel: 800-300-9977
Glendale
450 North Brand Blvd., Suite 600
Glendale, CA 91203
Tel: 800-300-9977
Pasadena
225 South Lake Ave., Suite 300
Pasadena, CA 91101
Tel: 800-300-9977
If
you would like to get more information regarding filing or objecting to
a Substituted Judgment Petition in
Los Angeles or Woodland Hills,
California, call us at 818.340.4479, or click
here.
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