Photo of Carlena L. Tapella

Carlena Tapella is Of Counsel in the firm’s Trusts and Estates practice group. Her practice encompasses all areas of trust, estate, and conservatorship litigation and administration.

Conservatorship proceedings are commenced for a variety of reasons, but the most common circumstance is when an elderly person requires assistance, either with their medical care, or their financial affairs, or both, and that individual does not have an alternative in place which would eliminate the need for a conservatorship.
Continue Reading Lest We Forget, Conservatees Have Personal Rights

In advising clients regarding the rights afforded to joint tenants on a bank account, most practitioners would say that the agreement with the financial institution generally would control, with the surviving joint tenant succeeding to the funds remaining in the account on the death of the other joint tenant. California’s Multiple-Party Accounts Law (Prob. Code, §§ 5100, et seq.) governs ownership of accounts with multiple parties and the disposition of those accounts upon the death of one of the parties to the account. Probate Code section 5302, subdivision (a) provides, in pertinent part, that, “Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intent. (Prob. Code, § 5302(a).) Subdivision (c) further provides that, “A right of survivorship arising from the express terms of the account or under this section, a beneficiary designation in a Totten trust account, or a P.O.D. payee designation, cannot be changed by will.” (Prob. Code, § 5302(c).)

Continue Reading With Right of Survivorship – or Perhaps Not?

Frequently when a conservatorship proceeding is commenced, the proposed conservatee is residing in his or her personal residence. Having a conservatorship established can be a distressing experience for a conservatee who has awareness of the effect of such a proceeding. One primary concern may be whether there is going to be a change to living arrangements with which the conservatee has been familiar, sometimes for decades. Naturally, it is commonplace for a conservatee to express that they “don’t want to go to a care home.” In recognition of the need to affirmatively preserve the right of conservatees to remain in their own personal residence, the California Legislature passed an amendment to existing law which applies a higher evidentiary standard before a conservator may move a conservatee from his or her personal residence.

Continue Reading There’s No Place Like Home – Heightened Evidentiary Standard for Moving Conservatees from Their Personal Residence