Elder Law
When a person lacks the ability to either manage their medical or financial affairs, or there is a concern with exploitation or other forms of abuse of an Elderly or Disabled person, there may be the need for a Guardian or Conservator to be appointed.
These court-appointed protections may be necessary if the individual has not previously executed Powers of Attorney naming an Agent either for medical or financial decisions, if the previously named Agent is either unwilling or unable to complete the needed actions, or at times, if the named Agent is using the Powers of Attorney to exploit the individual for their own benefit or gain.
Guardianships and conservatorships are designed to protect people; however, they do restrict a person’s right to make decisions for themselves. Accordingly, there are statutory protections in place to ensure the Respondent (person potentially needing protection) has the ability to be involved and represented throughout the process, and to ensure there are no less restrictive means available to provide these protections.
A guardianship gives the guardian the ability to make day-to-day decisions for the person needing assistance. The guardian’s duties include but are not limited to: Choosing a place to live, a doctor to go to, treatment the doctor uses, rehabilitative resources, and other programs used for health, safety, or welfare.
A conservatorship, on the other hand, gives a conservator the ability to make financial decisions for the person needing assistance. The conservator’s duties include, but are not limited to managing financial accounts and other assets, selling assets including property if necessary, paying ongoing bills or meeting other financial obligations,
Appointments for guardian and conservator can also be made on an emergency basis if the Court determines there is a significant concern for the person’s health, safety, or welfare, or if there is a significant risk of ongoing financial exploitation or immediate need for financial resources for the safety of the individual. Again, there are significant protections in place to protect the rights of the individual and be sure these steps are truly necessary for the protection or care needs of the individual.
Following the appointment of either a guardian or conservator the court will remain involved and there are annual reporting requirements as well as the ability to seek intervention if the guardian or conservator is not fulfilling their duties.
Whether you are seeking a guardianship or conservatorship over a family member or loved one, you are the subject of a proceeding, or you have concerns about the actions of a guardian or conservator, the attorney’s at Conover Law have significant experience in the protections and duties involved in these processes.
Guardianships and Conservatorships
When a person lacks the ability to either manage their medical or financial affairs, or there is a concern with exploitation or other forms of abuse of an Elderly or Disabled person, there may be the need for a Guardian or Conservator to be appointed.
These court-appointed protections may be necessary if the individual has not previously executed Powers of Attorney naming an Agent either for medical or financial decisions, if the previously named Agent is either unwilling or unable to complete the needed actions, or at times, if the named Agent is using the Powers of Attorney to exploit the individual for their own benefit or gain.
Guardianships and conservatorships are designed to protect people; however, they do restrict a person’s right to make decisions for themselves. Accordingly, there are statutory protections in place to ensure the Respondent (person potentially needing protection) has the ability to be involved and represented throughout the process, and to ensure there are no less restrictive means available to provide these protections.
A guardianship gives the guardian the ability to make day-to-day decisions for the person needing assistance. The guardian’s duties include but are not limited to: Choosing a place to live, a doctor to go to, treatment the doctor uses, rehabilitative resources, and other programs used for health, safety, or welfare.
A conservatorship, on the other hand, gives a conservator the ability to make financial decisions for the person needing assistance. The conservator’s duties include, but are not limited to managing financial accounts and other assets, selling assets including property if necessary, paying ongoing bills or meeting other financial obligations,
Appointments for guardian and conservator can also be made on an emergency basis if the Court determines there is a significant concern for the person’s health, safety, or welfare, or if there is a significant risk of ongoing financial exploitation or immediate need for financial resources for the safety of the individual. Again, there are significant protections in place to protect the rights of the individual and be sure these steps are truly necessary for the protection or care needs of the individual.
Following the appointment of either a guardian or conservator the court will remain involved and there are annual reporting requirements as well as the ability to seek intervention if the guardian or conservator is not fulfilling their duties.
Whether you are seeking a guardianship or conservatorship over a family member or loved one, you are the subject of a proceeding, or you have concerns about the actions of a guardian or conservator, the attorney’s at Conover Law have significant experience in the protections and duties involved in these processes.
Probate & Trust Litigation
Disputes can arise in the course of administering an estate or a trust. Among the most common disputes that arise in the course of administering an estate or trust is what is known as a “will contest”, in which a party alleges that a document (not necessarily limited to a Will, and may include a Trust, a Deed to real property, or even a beneficiary designation on a financial account) executed by the now deceased person is not valid for some reason. The most common bases for alleging invalidity of such a document is lack of “capacity”, i.e. the person did not have the ability to understand what they were doing when they executed the document, and/or “undue influence”, in which a third-person causes a person to execute a document that they would not otherwise have executed, often benefitting the influencer.
Additional disputes that can arise in the course of administering an estate or trust include: challenging the manner in which a “fiduciary” (including a “personal representative”, a conservator, or a “trustee”) is managing finances; claims of a “common law marriage”, in which a marriage may have existed with the now-deceased individual and third-party, despite never having been legally married; and, a creditor dispute, in which a claim has been, or needs to be, filed against an estate for money owed to a third-party.
The attorneys at Conover Law, LLC are experienced in both prosecuting and defending probate and trust litigation claims. Whether an Estate or Trust has denied your rights as a beneficiary, creditor, or is mismanaging resources, or you are a fiduciary and claims have been filed against the estate or trust and/or your management of the finances, Conover Law, LLC can effectively represent you through the process.
Probate and Estate Administration, Trust Administration
Estate Administration occurs after a person dies. After death, assets need to be distributed according to their will, or according to the intestate rules of succession of the state they resided in or owned property in. In order to facilitate this process, the court may appoint a Personal Representative (known as an Executor in other states). Often the appointee is designated in a person’s will. The personal representative’s duties include but are not limited to: Lodging (or filing) the will with the court, advertising a notice to creditors in the paper, preparing inventories and accountings, filing tax returns, collecting and maintaining assets, paying bills, and distributing assets.
The process to be appointed as personal representative begins with the filing of the original will along with application to open probate and be appointed as personal representative. The court will then issue an Order opening probate and appointing the personal representative and issuing Letters Testamentary (if there was a will) or Letters of administration (if there was not a will). The personal representative will then use the letters to open an estate bank account, collect assets, pay any claims or fees associated with the estate’s administration. Once all assets have been collected, creditor matters have been settled, and all other administrative actions have been taken, the personal representative will petition the court for final settlement. Upon the court approving the petition for final settlement, the personal representative will distribute the estate assets accordingly.
It is important to note that the Estate will only consist of assets in the deceased person’s name individually; if there are assets that are jointly owned or have beneficiary designations, they will generally pass to the named person outside of the probate process. If assets were titled in the name of a Trust, there will be a Trust Administration.
Trust Administration is the process of distributing assets according to a trust. The trust agreement generally appoints a trustee who is responsible for managing the trust assets. The trustee’s duties include but are not limited to: preparing inventories and accountings, filing tax returns, settling any outstanding debts, and distributing assets. In many ways this may be similar to a Probate Administration, however, there may be specific provisions of Trust that dictate additional terms or administrative requirements. The trust document itself will largely drive the process of administration.
There are times when either the Estate or Trust Administration may become contested or there are other disagreements between the heirs or beneficiaries. This may lead to additional court requirements or lead to litigation, which could include a variety of procedural steps.
Our team at Conover Law, LLC has experience representing the interests of the Personal Representative, Trustee, heirs or beneficiaries. Whether the administration is “simple” or leads to litigation, we are here to help and ensure your rights are protected and duties met.
Fiduciary Representation
Whether you are appointed as a guardian, conservator, personal representative, agent under power of attorney, or trustee, you now have a “fiduciary duty” to one or more other people, and the court. This means that you have to place the interests of that person, or persons, ahead of your own in carrying out the administration of the estate, trust, or conservatorship, and must act loyally and in that person’s best interest. Whether you are a family member, friend, or professional fiduciary, you will have the same duties and obligations to uphold, which will include reporting and other responsibilities to the court. If you breach these duties, whether intentionally or unintentionally, you may have personal liability for that breach.
If you are appointed as a fiduciary, legal representation is important not only when a claim has been filed against you alleging wrongdoing, but also on an ongoing basis to ensure compliance with your duties. Ongoing legal representation in your fiduciary capacity can help to maintain compliance with your duties, including proper asset management, timely reporting to the Court and beneficiaries, and avoiding conflicts of interest.
However, disputes cannot always be avoided, and if a claim has been filed against you alleging that you breached your fiduciary duties, legal representation is important to protect your legal rights and property because your liability for a breach of fiduciary duty may include not only the value of the alleged breach at issue, but the legal fees and costs for the person making the allegation against you.
The attorneys at Conover Law, LLC are experienced in representing both professional and non-professional fiduciaries, whether serving as guardian, conservator, agent under power of attorney, trustee, or personal representative. Conover Law, LLC can represent you on an ongoing basis to advise you of your duties and responsibilities as a fiduciary, and thereby help to avoid claims ever being filed in the first place, or if claims have already been filed, effectively defend you and uphold your legal rights.
Appeals
An appeal is the process of seeking higher court review of an order issued by a District Court judge or Magistrate. Appeals may arise in contested trust cases, estate cases, and/or protective proceedings. Appeals generally focus on legal, as opposed to factual, errors made by the Judge or Magistrate at trial. Legal errors warranting an appeal may include: misapplying the law; misinterpreting the law and/or a document (such as a Will or Trust); or, abusing the judge’s discretion by, among other bases, failing to state a reason for its actions. Very specific procedures, timelines and legal theories apply to appeals in Colorado, including the timeframe for filing an appeal, obtaining the records required for an appeal, and briefing an appeal. Following a trial, you may find yourself in the disadvantageous position of having suffered harm from a legal error committed by the Court and higher court review of that error may be beneficial. Conversely, following a trial, you may find yourself having to defend an appeal filed by an opposing party when the trial court made no errors.
The attorneys at Conover Law, LLC are experienced in handling appeals of trust, estate and protective proceeding cases and can represent you through the process, whether it is filing an appeal when an error has occurred or defending an appeal.