Comments for Lawidea.com http://lawidea.com Legal Questions and Advice Fri, 17 Feb 2012 16:28:44 +0000 hourly 1 http://wordpress.org/?v=3.3.1 Comment on I found reference on the world wide web to the assertion that an agent (aka attorney-at-fact, principal) can’t prepare a Will, vote or seek a divorce on the principal`s behalf at http://www. by admin http://lawidea.com/i-found-reference-on-the-world-wide-web-to-the-assertion-that-an-agent-aka-attorney-at-fact-principal-cant-prepare-a-will-vote-or-seek-a-divorce-on-the-principals-behalf-at-httpwww/#comment-18 admin Fri, 17 Feb 2012 16:28:44 +0000 http://lawidea.com/?p=5#comment-18 Re: Sibling trying to divorce parents using POA Hmmmm....this is an interesting question, although I must admit, I've never come across exactly this situation before. Divorce is an equitable proceeding. That is, anyone seeking a divorce must file a legal complaint with the court--just like any other lawsuit. If there are jurisdictional grounds, the court will have power to consider whether the divorce should be granted. Even if there is jurisdiction to consider the case, whether or not a divorce is granted, and on what terms, is up to the judge hearing the case. If your sibling attempts to file a complaint for divorce on behalf of your father, I imagine that the judge will scrutinize the action very carefully. Is this something that your mother agrees to? Is this something that your father agrees to? Just because dad is incompetent does not mean he is completely unable to state an opinion. The court will also carefully scrutinize your sibling's motivations for taking this action. I imagine you would have a chance to be heard by the judge, if you oppose this action for some reason. While I do not endorse your sibling's conduct, it is conceivable that there might be a situation where a person who happens to be incompetent would need some way to initiate a divorce proceeding, for example, if the incompetent parent is perhaps being physically abused by a spouse. In all likelihood, however, your sibling will at a minimum need to obtain guardianship powers through a separate equity proceeding before being allowed to initiate a divorce. This is a proceeding in which the court appoints a guardian for an incompetent person after an investigation and report by a court-appointed attorney has been conducted, all interested people (including children of the incompetent) are given a chance to provide input, and a hearing has been held. If you are concerned that your sibling is abusing his/her legal authority, you need to retain an attorney immediately to ensure your parent's rights are protected. Alan Albin Alan S. Albin, Attorney at Law 55 Madison Ave., Suite 400 Morristown, NJ 07960 Re: Sibling trying to divorce parents using POA
Hmmmm….this is an interesting question, although I must admit, I’ve never come across exactly this situation before.

Divorce is an equitable proceeding. That is, anyone seeking a divorce must file a legal complaint with the court–just like any other lawsuit. If there are jurisdictional grounds, the court will have power to consider whether the divorce should be granted. Even if there is jurisdiction to consider the case, whether or not a divorce is granted, and on what terms, is up to the judge hearing the case.

If your sibling attempts to file a complaint for divorce on behalf of your father, I imagine that the judge will scrutinize the action very carefully. Is this something that your mother agrees to? Is this something that your father agrees to? Just because dad is incompetent does not mean he is completely unable to state an opinion. The court will also carefully scrutinize your sibling’s motivations for taking this action. I imagine you would have a chance to be heard by the judge, if you oppose this action for some reason.

While I do not endorse your sibling’s conduct, it is conceivable that there might be a situation where a person who happens to be incompetent would need some way to initiate a divorce proceeding, for example, if the incompetent parent is perhaps being physically abused by a spouse.

In all likelihood, however, your sibling will at a minimum need to obtain guardianship powers through a separate equity proceeding before being allowed to initiate a divorce. This is a proceeding in which the court appoints a guardian for an incompetent person after an investigation and report by a court-appointed attorney has been conducted, all interested people (including children of the incompetent) are given a chance to provide input, and a hearing has been held.

If you are concerned that your sibling is abusing his/her legal authority, you need to retain an attorney immediately to ensure your parent’s rights are protected.

Alan Albin
Alan S. Albin, Attorney at Law
55 Madison Ave., Suite 400
Morristown, NJ 07960

]]> Comment on When setting up durable power of attorney for a married couple, should there be two forms prepared, one for each? by admin http://lawidea.com/when-setting-up-durable-power-of-attorney-for-a-married-couple-should-there-be-two-forms-prepared-one-for-each/#comment-17 admin Fri, 17 Feb 2012 16:28:44 +0000 http://lawidea.com/?p=4#comment-17 Re: power of attorney generally, yes. however, you should retain an attorney to ensure that estate planning documents are properly prepared and that they have the intended results. Donald Field Donald L. Field, Jr., Attorney at Law 400 Montgomery Street, 6th Floor San Francisco, CA 94104-1217 Re: power of attorney
generally, yes. however, you should retain an attorney to ensure that estate planning documents are properly prepared and that they have the intended results.

Donald Field
Donald L. Field, Jr., Attorney at Law
400 Montgomery Street, 6th Floor
San Francisco, CA 94104-1217

]]> Comment on In California, can two (2) people, as opposed to one person, be chosen to share the power of attorney responsibilities by an indiviaual in the case he becomes incapacitated? by admin http://lawidea.com/in-california-can-two-2-people-as-opposed-to-one-person-be-chosen-to-share-the-power-of-attorney-responsibilities-by-an-indiviaual-in-the-case-he-becomes-incapacitated/#comment-16 admin Fri, 17 Feb 2012 16:28:44 +0000 http://lawidea.com/?p=3#comment-16 Re: durable power of attorney for financial affairs Very interesting question. First of all the power of attorney is usually a power of which goes into effect immediately for a specific time or unlimited time depending upon what the power states. It is meant for one person to be able to act on behalf of another because the other is unable to act, i.e. out of the country. It is either a limited power as set forth in the document or an unlimited power depending upon the terms of the document. It isn't really meant to be used in terms of incapacity although it has been used that way. I have never known at power of attorney to be used for more than one person. When their two people there may be a controversy between them as to what is in the best interest of the person they're dealing with. What you are basically looking at based upon the fact situation is a Conservatorship. That is a procedure through the superior court of any county in which the individual principally resides where there is a court supervised individual (s) for applied to take care of a person's estate or damned personally. Basically, if you are dealing with somebody who's older I would suggest you get a hold of attorney who deals in elder law who can better advise you based upon your specific fact situation in the individual over who you are concerned.I have been practicing law in this legal area for over 30 years and understand your problem well. I practice in the S.F. Bay Area and if you wish to contact me call at 925-945-6000. Michael Olden Law Offices of Michael A. Olden 1035 Alta Mesa Drive Moraga, CA 94556 Re: durable power of attorney for financial affairs
Very interesting question. First of all the power of attorney is usually a power of which goes into effect immediately for a specific time or unlimited time depending upon what the power states. It is meant for one person to be able to act on behalf of another because the other is unable to act, i.e. out of the country. It is either a limited power as set forth in the document or an unlimited power depending upon the terms of the document. It isn’t really meant to be used in terms of incapacity although it has been used that way. I have never known at power of attorney to be used for more than one person. When their two people there may be a controversy between them as to what is in the best interest of the person they’re dealing with. What you are basically looking at based upon the fact situation is a Conservatorship. That is a procedure through the superior court of any county in which the individual principally resides where there is a court supervised individual (s) for applied to take care of a person’s estate or damned personally. Basically, if you are dealing with somebody who’s older I would suggest you get a hold of attorney who deals in elder law who can better advise you based upon your specific fact situation in the individual over who you are concerned.I have been practicing law in this legal area for over 30 years and understand your problem well. I practice in the S.F. Bay Area and if you wish to contact me call at 925-945-6000.

Michael Olden
Law Offices of Michael A. Olden
1035 Alta Mesa Drive
Moraga, CA 94556

]]> Comment on In California, can two (2) people, as opposed to one person, be chosen to share the power of attorney responsibilities by an indiviaual in the case he becomes incapacitated? by admin http://lawidea.com/in-california-can-two-2-people-as-opposed-to-one-person-be-chosen-to-share-the-power-of-attorney-responsibilities-by-an-indiviaual-in-the-case-he-becomes-incapacitated/#comment-15 admin Fri, 17 Feb 2012 16:28:44 +0000 http://lawidea.com/?p=3#comment-15 Re: durable power of attorney for financial affairs for a durable power of attorney for property management the principal may execute more than one power of attorney, and may designate more than one attorney in fact, either in one or in more than one instrument. However, the authority of two or mroe attorneys in fact ordinarily is exercisable only by their unanimous action. However, if one attorney in fact becomes unavailable due to illness, absence or other temporary incapacitated the remaining person may act as if he/she were the only attorney in fact. Katherine Southard Law Office of Katherine A. Southard 6100 Melrose Avenue Los Angeles, CA 90038 Re: durable power of attorney for financial affairs
for a durable power of attorney for property management the principal may execute more than one power of attorney, and may designate more than one attorney in fact, either in one or in more than one instrument. However, the authority of two or mroe attorneys in fact ordinarily is exercisable only by their unanimous action. However, if one attorney in fact becomes unavailable due to illness, absence or other temporary incapacitated the remaining person may act as if he/she were the only attorney in fact.

Katherine Southard
Law Office of Katherine A. Southard
6100 Melrose Avenue
Los Angeles, CA 90038

]]> Comment on I hold DPOA on my Father. by admin http://lawidea.com/i-hold-dpoa-on-my-father/#comment-14 admin Fri, 17 Feb 2012 16:28:44 +0000 http://lawidea.com/?p=2#comment-14 Re: Durable Power of Attorney The answer to this question lies in the agreement that you signed when he was admitted to the nursing home. In general you are not personally liable, however as a matter of collection, you would most probably be named in your capacity with power of attorney. It is not a simple cut and dried situation that I can advise you without review of the facts and circumstances of the case. If you are concerned, then I advise you to seek representation of an attorney in your locale. Good luck! Patrick Tracy Patrick J. Tracy, Esq, P.E., P.O. Box 93 Garrett Park, MD 20896 Re: Durable Power of Attorney
The answer to this question lies in the agreement that you signed when he was admitted to the nursing home. In general you are not personally liable, however as a matter of collection, you would most probably be named in your capacity with power of attorney.

It is not a simple cut and dried situation that I can advise you without review of the facts and circumstances of the case. If you are concerned, then I advise you to seek representation of an attorney in your locale.

Good luck!

Patrick Tracy
Patrick J. Tracy, Esq, P.E.,
P.O. Box 93
Garrett Park, MD 20896

]]> Comment on parent is in skilled nursing home temporarily. by admin http://lawidea.com/parent-is-in-skilled-nursing-home-temporarily/#comment-13 admin Fri, 17 Feb 2012 16:28:44 +0000 http://lawidea.com/?p=1#comment-13 Re: elder care Such disputes can usually only be resolved with filing for a conservatorship. If several do that, the court will pick and choose who it thinks is best. Seek a local attorney, or feel free to contact me if you want legal help. Terry A. Nelson Nelson & Lawless 18685 Main St., #175 Huntington Beach, CA 92648 Re: elder care
Such disputes can usually only be resolved with filing for a conservatorship. If several do that, the court will pick and choose who it thinks is best. Seek a local attorney, or feel free to contact me if you want legal help.

Terry A. Nelson
Nelson & Lawless
18685 Main St., #175
Huntington Beach, CA 92648

]]> Comment on parent is in skilled nursing home temporarily. by admin http://lawidea.com/parent-is-in-skilled-nursing-home-temporarily/#comment-12 admin Fri, 17 Feb 2012 16:28:44 +0000 http://lawidea.com/?p=1#comment-12 Re: elder care If parent cannot make own decisions, then you should consider becoming your parent's conservator. If you're in southern California and would like help with this call me. Phillip Lemmons, Esq. Law Offices of Phillip C. Lemmons 10221 Slater Avenue, Suite 106 Fountain Valley, CA 92708 Re: elder care
If parent cannot make own decisions, then you should consider becoming your parent’s conservator. If you’re in southern California and would like help with this call me.

Phillip Lemmons, Esq.
Law Offices of Phillip C. Lemmons
10221 Slater Avenue, Suite 106
Fountain Valley, CA 92708

]]> Comment on My wife holds our past joint checking account by admin http://lawidea.com/my-wife-holds-our-past-joint-checking-account/#comment-11 admin Mon, 13 Feb 2012 12:44:22 +0000 http://lawidea.com/legalqa/?p=19#comment-11 Without more information, your question doesn't make a lot of sense. Are you engaged in some sort of legal action with your wife? Why do you need to prove how you spent money in 2003? Why is she withholding this information from you? Once you answer these questions, it will be easier to provide you with a proper answer. Sue Roberts-Kurpis, Esq. Law Office of Sue Roberts-Kurpis 3845 West 58th Place Chicago, IL 60629 Without more information, your question doesn’t make a lot of sense. Are you engaged in some sort of legal action with your wife? Why do you need to prove how you spent money in 2003? Why is she withholding this information from you? Once you answer these questions, it will be easier to provide you with a proper answer.

Sue Roberts-Kurpis, Esq.
Law Office of Sue Roberts-Kurpis
3845 West 58th Place
Chicago, IL 60629

]]> Comment on My wife holds our past joint checking account by admin http://lawidea.com/my-wife-holds-our-past-joint-checking-account/#comment-10 admin Mon, 13 Feb 2012 12:44:12 +0000 http://lawidea.com/legalqa/?p=19#comment-10 No court form. Must use some form of discovery to get them, and it must be served in 1) proper and 2) timely manner. These forms/requests are custom drafted. David Gotzh Law Office of David Gotzh PO Box 591 Lansing, IL 60438 No court form. Must use some form of discovery to get them, and it must be served in 1) proper and 2) timely manner. These forms/requests are custom drafted.

David Gotzh
Law Office of David Gotzh
PO Box 591
Lansing, IL 60438

]]> Comment on Does an off duty border patrol agent have legal authority by admin http://lawidea.com/16/#comment-9 admin Mon, 13 Feb 2012 12:43:06 +0000 http://lawidea.com/legalqa/?p=16#comment-9 Sworn law enforcement personnel are 'on duty' 24/7. Of course you can fight any criminal charges. There may be grounds for procedural violation arguments. When arrested or charged with any crime, the proper questions are, can any evidence obtained in a test, search or confession be used against you, can you be convicted, and what can you do? Yes, you can raise all appropriate defenses with whatever witnesses, evidence and sympathies are available for legal arguments, for evidence suppression or other motions, or for trial. If you don't know how to represent yourself effectively against an experienced prosecutor intending to convict, then hire an attorney that does, who will try to get a dismissal, diversion program, reduction, or other decent outcome through plea bargain, or take it to trial if appropriate. If serious about hiring counsel to help in this, and if this is in SoCal courts, feel free to contact me. I’ll be happy to help, using whatever defenses there may be. Terry A. Nelson Nelson & Lawless 18685 Main St., #175 Huntington Beach, CA 92648 Sworn law enforcement personnel are ‘on duty’ 24/7.

Of course you can fight any criminal charges. There may be grounds for procedural violation arguments. When arrested or charged with any crime, the proper questions are, can any evidence obtained in a test, search or confession be used against you, can you be convicted, and what can you do? Yes, you can raise all appropriate defenses with whatever witnesses, evidence and sympathies are available for legal arguments, for evidence suppression or other motions, or for trial. If you don’t know how to represent yourself effectively against an experienced prosecutor intending to convict, then hire an attorney that does, who will try to get a dismissal, diversion program, reduction, or other decent outcome through plea bargain, or take it to trial if appropriate.

If serious about hiring counsel to help in this, and if this is in SoCal courts, feel free to contact me. I’ll be happy to help, using whatever defenses there may be.

Terry A. Nelson
Nelson & Lawless
18685 Main St., #175
Huntington Beach, CA 92648

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