California Family Law Blog

San Jose Family Law Attorney offers suggestions on making wise elder care decisions.

When families are faced with the decision of providing elder care at home, in a nursing home or assisted living facility for a relative, there are a number of factors to consider before rendering a decision. Here are some good questions to answer that will provide guidance as you navigate the difficult and emotion-laden elder care process.

1. Does your loved one currently reside in his or her own home? If your loved one does but doesn’t seem able to manage the home, don’t be too hasty in selecting an independent living or assisted living facility or nursing home. Once your love one no longer has a home, he or she may no longer be eligible for in-home care, often a less expensive but just as effective option in providing the care your loved one needs.
   
   
2. Does your loved one have long-term care insurance? If so, be sure you fully understand its limits, since it may become useless when your elderly loved one enters an assisted living facility or not yours to spend as you choose when the loved one is in a nursing home.
   
   
3. Does your loved one depend and need 24-hour professional care? Even every day tasks like bathing, dressing and eating can be overwhelming for the dependent elderly. If you suspect this is the case, then your loved one may need 24-hour professional care, in his or her own home; a well-equipped assisted living facility, or nursing home.
   
   
4. Does your loved one see a geriatric specialist for medical care? This specialist physician understands the unique physical and psychological needs of your elderly loved one. So a geriatric doctor can help you and your loved one make the best decisions for medical care, helping to enhance the quality of life and not just prolong it.
   
   
5. Do your loved one have a trusted attorney with experience in elder law? If the answer to this question is “Yes” then all your and your loved one’s decisions about living arrangements, estate planning and wishes upon death will be the best ones.

The area of elder law is a very specialized area. Because there are so many special needs for this group and their loved ones and because there are many ways to address those needs without bankrupting either the elderly person or his or her caregivers, it’s vital to consult an elder law specialist who can review your options, which will include any long-term care insurance policies and a review of the elderly loved one’s financial situation. All of these are factors to be considered as you move toward a decision that is in the best interest of your loved one.

Here at Sagaria Law, we offer a full range of family law and legal services including divorce, paternity, adoption, child custody and visitation matters, child support, spousal support, alimony, juvenile dependency, domestic violence, division of property, grandparent visitation and custody, etc. We have seven Northern California locations including San Jose, San Francisco, Redwood City, Fremont, Salinas, Roseville and Sacramento. We offer a free thirty minute consultation, either in person at any of our offices, or over the phone. Call our offices today and we can connect you with an attorney immediately or we can schedule your free consultation with one of our family law attorneys : (408) 279-2288 or (800) 941-6730 or visit www.sagarialaw.com.

San Jose Family Law Attorney explains when guardianship is needed.

These frequently asked questions explain when you do -- and don't -- need to seek legal guardianship of a child in your care.

IF A CHILD LIVES WITH ME, DO I NEED A GUARDIANSHIP?

You won't need a guardianship if the child is only staying with you for a few weeks or months. But anyone who anticipates caring for a child for a period of years will probably need a legal guardianship. Without this legal arrangement, you may have trouble registering the child in school, arranging for medical care and obtaining benefits on the child's behalf. In addition, you'll have no right to keep the child if his parents want him back -- even if you think they're incapable of caring for him properly.

IS IT TRUE THAT PARENTS MAY NEED A GUARDIANSHIP OF THEIR OWN CHILD?

It's strange but true: sometimes parents need to establish a particular type of guardianship called a "guardianship of the estate" to handle their own child's finances -- even if the child lives with them. This situation usually arises when significant amounts of property (at least $5,000 in most states) are given directly to a child.

Understandably, institutions and lawyers are reluctant to turn assets over to parents when they were intended for a child. A guardianship of the estate relieves the institution from liability, and the parents are directly accountable to a court to show how funds are spent and invested.

Example: The Thompsons lived next door to an elderly widow, who was extremely fond of their small daughter. When the widow died, she left her house to little Suzy Thompson. The lawyer handling the widow's estate suggests that Suzy's parents go to court to establish a guardianship of their child's estate. The house is then transferred into the name of Suzy's guardianship estate, which her parents manage until she reaches adulthood.

While this system is effective in protecting children's assets from unscrupulous parents, setting up a formal guardianship of the estate involves time and money that well-meaning parents sometimes find burdensome. For this reason, all states have passed laws to make it easier to give money or property to children. These laws provide simple, inexpensive procedures by which gifts to minors (typically up to $10,000) can be managed by their parents without setting up formal guardianships of the estate. A gift-giver must simply name, in his or her will or in a trust document, someone to manage the gift until the child reaches adulthood. No court involvement is required.

Here at Sagaria Law, we offer a full range of family law and legal services including divorce, paternity, adoption, child custody and visitation matters, child support, spousal support, alimony, juvenile dependency, domestic violence, division of property, grandparent visitation and custody, etc. We have seven Northern California locations including San Jose, San Francisco, Redwood City, Fremont, Salinas, Roseville and Sacramento. We offer a free thirty minute consultation, either in person at any of our offices, or over the phone. Call our offices today and we can connect you with an attorney immediately or we can schedule your free consultation with one of our family law attorneys : (408) 279-2288 or (800) 941-6730 or visit www.sagarialaw.com.

San Francisco Family Law Attorney explains the guardianship process.

Parents who do not plan for their child(ren)’s guardianship as part of their estate plan run the risk of the court appointing a probate guardian, who will have legal and financial responsibility for any minors until they reach the age of 18.

There are three types of guardianship that the court may order:

Probate Guardianship of the Estate - this is established when the person(s) who left the child money did not establish a guardian in their estate plan. This person will manage the child’s money until the child turns 18 years of age.

Probate Guardianship of the Person – this individual takes over the legal, financial, and emotional responsibilities of caring for the child.

Probate Guardianship of Person and the Estate – encompasses both of the processes described above.

Guardianship is typically established after the death of the parents or legal guardians, but it can also be established when the parents are alive. These cases often occur when the parents are unwilling or unable to care for the child, or when a parent may be a threat to the child. The probate judge will determine what is in the best interests of the child and appoint a guardian if necessary.

Here at Sagaria Law, we offer a full range of family law and legal services including divorce, paternity, adoption, child custody and visitation matters, child support, spousal support, alimony, juvenile dependency, domestic violence, division of property, grandparent visitation and custody, etc. We have seven Northern California locations including San Jose, San Francisco, Redwood City, Fremont, Salinas, Roseville and Sacramento. We offer a free thirty minute consultation, either in person at any of our offices, or over the phone. Call our offices today and we can connect you with an attorney immediately or we can schedule your free consultation with one of our family law attorneys : (408) 279-2288 or (800) 941-6730 or visit www.sagarialaw.com.

San Jose Family Law Attorney Discusses the What Happens to the Children When a Parent Dies

With the death of Michael Jackson, and a potential custody battle arising between Katherine Jackson, the mother of Michael and Debbie Rowe, Jackson’s second wife and the biological mother of Prince Michael, 12, and Paris, 11, much talk has arisen about what happens when a custodial parent dies.

Generally, if a custodial parent dies while the child is a minor, the surviving parent would be entitled to sole legal custody. Other third parties such as aunts, uncles or grandparents may try to obtain custody of the child by filing an independent proceeding such as a guardianship, dependency or in the case of grandparents, a Petition for Grandparent Visitation. The other family members may be awarded custody if they can show that it would not be in the child’s best interest to be in the custody of the surviving parent and to do so would be detrimental to the child.

The same would still be true even if the deceased parent had sole legal and sole physical custody and had not even been involved with the child in the last few years. For instance, if Michael Jackson was awarded sole legal and sole physical custody (which he had not), Debbie Rowe would still have parental rights, unless all of her legal parental rights and responsibilities had been terminated. Since no such order existed, that is why Debbie Rowe still has standing to try and obtain custody of Prince Michael and Paris.

If a custodial parent dies and the other parent who has been absent from the child’s life all of a sudden takes interest in the child, one may question the surviving parent’s motivation. It may be that there is some remorse and regret for being absent and a renewed desire to provide and care for the child. In other cases, if there is a possibility of the deceased parent leaving a sizeable estate, money and greed may be a motivation. Such motivation has been speculated in the case of Debbie Rowe.

Here at Sagaria Law, we offer a full range of family law and legal services including divorce, paternity, adoption, child custody and visitation matters, child support, spousal support, alimony, juvenile dependency, domestic violence, division of property, grandparent visitation and custody, etc. We have seven Northern California locations including San Jose, San Francisco, Redwood City, Fremont, Salinas, Roseville and Sacramento. We offer a free thirty minute consultation, either in person at any of our offices, or over the phone. Call our offices today and we can connect you with an attorney immediately or we can schedule your free consultation with one of our family law attorneys: (408) 279-2288 or (800) 941-6730 or visit www.sagarialaw.com

San Jose Family Law Attorney Discusses California Surrogacy and Adoption Laws

Lately, Sagaria Law has received several calls about surrogacy and adoption. Surrogacy comes in two main forms: gestational or traditional. Gestational surrogacy is where the embryo and resulting child is genetically related to both parents. Traditional surrogacy involves the use of donor eggs and sperm, or artificial insemination.

Surrogacy law in California is governed by 2 Supreme Court cases: Johnson v. Calvert and Marriage of Buzzanca. Johnson is a case of a gestational surrogate (genetic material from both parents, surrogate to carry the child), and the Supreme Court ruled that when two women have valid claims to motherhood, the tiebreaker is the intent at the time of conception. Therefore, the natural mother of a child is the person who intended to bring about the birth of a child and raise it as her own. In Marriage of Buzzanca, the Court dealt with a case of two infertile parties who used donor sperm and donor eggs to implant in a paid surrogate. In that case, the court held that where a married couple, unable to procreate on their own, intends to bring about the birth of a child through the use of medical technology, those individuals will be held to be the legal parents, regardless of genetics. This holding should apply to surrogacy cases where the surrogate has been artificially inseminated with the intended father’s sperm, but since there is no clear ruling on this particular issue, it is possible the court would decide differently under that set of circumstances.

In California, the intended parents can only be listed on the birth certificate if there is a court judgment naming them as the parents. If no such judgment is to be had before birth, the parents will need to adopt the child(ren) to become the legal parents. It is advisable to seek a legal judgment in advance of the birth to ensure there is no delay in obtaining the status of legal parents.

Here at Sagaria Law, we offer a full range of family law and legal services including divorce, paternity, adoption, child custody and visitation matters, child support, spousal support, alimony, juvenile dependency, domestic violence, division of property, grandparent visitation and custody, etc. We have seven Northern California locations including San Jose, San Francisco, Redwood City, Fremont, Salinas, Roseville and Sacramento. We offer a free thirty minute consultation, either in person at any of our offices, or over the phone. Call our offices today and we can connect you with an attorney immediately or we can schedule your free consultation with one of our family law attorneys: (408) 279-2288 or (800) 941-6730 or visit www.sagarialaw.com

Sacramento Divorce Attorney Discusses Guardianships

Lately, our office has fielded a bunch of calls from people interested in setting up guardianships for minor children either who are friends or family. One of the first questions is usually, what is a guardianship and why would a child need one?

A guardianship is established by a court order when the court appoints an adult, who is not the parent, to be responsible for a minor. This may occur if a parent is deceased, incarcerated or otherwise unable to care for a minor child. Guardianships are specific to children – where an adult is unable to care for themselves, the appropriate procedure is a conservatorship.

There are two types of guardianships: of the minor’s person, and of the minor’s estate. A guardianship of the minor’s person means the guardian has legal custody of the minor and is responsible for the minor’s well being. The guardian provides food, shelter, health care, and assumes responsibility over education and religious development, and can obtain medical treatment for the minor. A guardianship of the minor’s estate is not typical, unless the minor has substantial assets, usually from an inheritance.

Certain circumstances do not require a guardianship. These circumstances include short-term caregiving (up to 3 months), or a minor whose parents are living, or a stepparent caregiver. For situations such as these, it is useful to consider a Caregiver Authorization Affidavit, which allows the informal guardian to obtain medical care and enroll the child in school. A Guardianship Authorization form gives a nonparent caregiver a broader range of responsibility including applying for health insurance and obtaining benefits for a child.

Here at Sagaria Law, we offer a full range of family law and legal services including divorce, paternity, adoption, child custody and visitation matters, child support, spousal support, alimony, juvenile dependency, domestic violence, division of property, grandparent visitation and custody, etc. We have seven Northern California locations including San Jose, San Francisco, Redwood City, Fremont, Salinas, Roseville and Sacramento. We offer a free thirty minute consultation, either in person at any of our offices, or over the phone. Call our offices today and we can connect you with an attorney immediately or we can schedule your free consultation with one of our family law attorneys: (408) 279-2288 or (800) 941-6730 or visit www.sagarialaw.com