Legal Question in Elder Law in California

Asset Protection Attorney consulted

What right would a ''out of the woodwork'' relative (niece) have to contest an elderly couples to decision to have assets protected for purposes of potential long term care? Basically, my mother, stepfather w/alzheimers, desired to consult about medi-cal for LTC. This niece is worried her uncle's assets will go to the ''stepchildren'' and not her or that she won't end up with anything. She claims she is hiring an attorney to help her. My parents live unassisted right now. I help with all banking, doctors, transportation, groceries, any shopping, etc. The niece lives out of state and has been very absent from his life and that is the same for any family members of his. He has no biological children. They have been married for over 35 years. He is 79, she is 81. They want me to have POA but how would that help them?


Asked on 6/05/08, 4:40 pm

2 Answers from Attorneys
Terry A. Nelson Nelson & Lawless

Re: Asset Protection Attorney consulted

The niece can't do anything other than annoy everyone, unless she files a Conservatorship action in the superior court local to the old folks. To do so, she'd have to allege and prove they are mentally and/or physically 'incompetent' and need formal court ordered supervision or them and their assets. Thus, tell her to 'take a hike' and stop being greedy about their assets. In the meantime, get or keep in force a general/full Power of Attorney from each of them, properly recorded with the banks, etc. The old folks have a right to use and dispose of their property to anyone they like, by gifts during lifetime, and by will or trust upon death. If they have an attorney, he could help them do so as necessary. If they don't, feel free to consult with me for the help they need to stop this harassment.

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Answered on 6/05/08, 6:03 pm
Gordon Fauth Fauth Law Offices

Re: Asset Protection Attorney consulted

It's not my field, but I'll tell you what I think, since I don't see any other responses, and urge you to talk to an attorney who does estates and trusts. Such an attorney will be able to advise on the specific facts of the situation.

The niece's position sounds very weak. Your parents can do what they want with their assets while alive and able to make decisions; and can leave their assets to whomever they want. They should look into setting up a trust and doing a will, if they haven't already done that.

A 1) durable general power of attorney, and 2) durable medical power of attorney would allow you to act for your parents even in the event their health deteriorates and they can no longer act for themselves. That might be very helpful to them. Make sure the POA's are "durable"--your attorney will know what that means.

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Answered on 6/05/08, 4:55 pm


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