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Kelly is a shareholder in the firm’s Estate Planning, Tax and Fiduciary Abuse and Litigation groups. Kelly was admitted to the State Bar of California in 1996, after receiving her J.D. from McGeorge School of Law, University of the Pacific, in December of 1995. Kelly focuses her practice on estate and trust litigation, financial/fiduciary abuse, elder financial abuse, trust and probate administration, and conservatorships. Kelly also has extensive trial, mediation and appellate experience, and has successfully litigated a number of high profile trust disputes and elder financial abuse cases.

KellyDIn Conservatorship of Gregory D., (“Gregory D.”), the Court of Appeal considered whether the mother of a conservatee had standing to appeal an order that, among other things, set a visitation schedule for her son, an adult conservatee.  The Court of Appeal determined that the mother did not have standing to appeal, as she had not identified any of her own rights or interests that were injuriously affected by the order.

The Conservatorship:

Gregory D. (“Gregory”) is a developmentally disabled adult in his mid-twenties. Gregory reached the age of 18 in 2005; and, he moved into his own apartment in 2008, with supportive services that enable him to live independently.  In 2004, Gregory’s parents, Linda and Joseph, who were divorced, filed competing petitions to be named as Gregory’s limited conservator.  In 2005, Linda and Joseph settled the dispute and agreed that Linda would become Gregory’s limited conservator.  As limited conservator, Linda was granted various powers, including the ability to fix Gregory’s place of residence, access to Gregory’s confidential records and papers, and the power to enter into contracts on Gregory’s behalf.

A Series of Conservators:

While Linda was serving as limited conservator, further litigation ensued between Joseph and Linda pertaining to Linda’s administration of the conservatorship.  Joseph filed a petition to remove Linda as Gregory’s conservator, contending that Linda had improperly relocated Gregory from half-time residence in Joseph’s home and had prohibited contact between Joseph’s family and Gregory.  In August 2008, the court appointed a Probate Volunteer Panel attorney, Paul Gaulke (“Gaulke”), as attorney for Gregory.

In July of 2009, after Joseph and Linda entered into another settlement agreement, the court entered an order providing, among other things, that Linda would resign as limited conservator immediately upon the appointment of a successor limited conservator.  In September 2009, the court appointed Linda Cotterman (“Cotterman”) as the successor limited conservator for Gregory.


Continue Reading Mother Lacked Standing to Appeal Probate Court’s Order Relating to Her Son’s Rights

KellyDSince my practice primarily involves disputes, I am often asked to assist clients with the issues that arise when one of their loved ones becomes incapacitated and can no longer make financial or health care decisions for himself or herself.  In a perfect world, the loved one has a foundational estate plan that includes a durable financial power of attorney and an advance health care directive that name an agent (also called an attorney-in-fact) who can step in and make financial and health care decisions when the loved one is no longer able to make those decisions for himself or herself.  In these “perfect world” scenarios, once a determination of incapacity is made, it is relatively easy for the agent to step in and begin managing his or her loved one’s financial affairs and medical decisions and needs.  But what happens if the loved one does not have a foundational estate plan, or if he or she is in need of more protection than a durable financial power of attorney or advance health care directive can provide?  In those difficult situations, court intervention is often required.

If your loved one becomes incapacitated and does not have a durable financial power of attorney (and “durable” is the key word here:  a financial power of attorney is only “durable” if it specifically states that it remains in effect even in the event of incapacity), it may be necessary for you to seek the appointment of a conservator so that there is a person who has the authority to manage your loved one’s financial affairs.  This is also true if your loved one does not have an advance health care directive or durable power of attorney for health care that appoints an agent to make health care decisions for him or her in the event of his or her incapacity:  in that event, it may be necessary for you to seek the appointment of a conservator so that there is a person with authority to make health care decisions for your loved one.


Continue Reading My Loved One is Incapacitated. Now what?