Mental Health (LPS) Conservatorships

December 2nd, 2016 | Posted by admin in Elder Law - (0 Comments)

A mental health (LPS) conservatorship makes one adult (called the “conservator”) responsible for a mentally ill adult (called the “conservatee”). LPS conservatorships MUST be started by a local government agency, usually a county’s Public Guardian or Public Conservator.

LPS conservatorships last for only 1 year. If they are needed longer than that, they must be restarted and the conservator must be reappointed by the court. The government agency may recommend that a family member of the conservatee be appointed as LPS conservator, but this happens usually only after the first year.

These conservatorships are only for adults who are gravely disabled as a result of a mental illness listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM). The most common mental illnesses are serious, biological brain disorders, like:

    • Schizophrenia,
    • Bipolar disorder (manic depression),
    • Schizo-affective disorder,
    • Clinical depression, and
    • Obsessive-compulsive disorder.

LPS conservatorships are not for people with organic brain disorders, brain trauma, developmental disability, alcohol or drug addiction, or dementia, unless they also have one of the serious mental illnesses listed in the DSM.

Duties and Responsibilities of an LPS Conservator 
An LPS conservatorship gives legal authority to the conservator to make certain decisions for a conservatee who is unable to take care of himself or herself. If asked, the court can give an LPS conservator the duty to take care of and protect the conservatee (conservator of the person) and also the power to handle the financial matters of the conservatee (conservator of the estate).

The conservator can consent to mental health treatment even if the conservatee objects. The conservator can agree to the use of psychotropic (mind-altering) drugs. However, the conservatee may refuse to take them if he or she is determined to have enough mental ability to make this decision knowingly and with enough understanding of the consequences.

The conservator can agree to place the mentally ill person in a locked facility if a psychiatrist says it is needed and the hospital agrees to take the person, whether or not the conservatee agrees. The conservator can decide where the mentally ill person will live when he or she is not in a locked psychiatric facility.

The LPS conservator can also make financial decisions for the conservatee, like paying the bills and collecting his or her assets and income.

An LPS conservator must have enough medical and social information before making decisions for the conservatee. And the conservator must only take actions that are in the best interest of the conservatee.

from California Courts

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Court Interpreters

November 22nd, 2016 | Posted by admin in Uncategorized - (0 Comments)

If you don’t speak or understand English very well, you may need a court interpreter to help you in court. A court interpreter verbally translates (called “interpreting”) everything the judge and others say from English into your primary language, and everything you say back into English. Even if you speak English well enough for every day life, the situations and language in court can be very difficult. An interpreter can help make sure that you understand and can communicate as well as possible.

Qualified court interpreters speak English and the other language really well. They know legal terms in both languages. They understand the legal process. And they stay neutral and impartial at all times.

Ask the court to provide you an interpreter as soon as you find out that you will need to go to court. In many cases, the court will be able to provide you an interpreter for free. In some cases, the court may ask you to bring your own interpreter. If that happens, find someone who is trained and qualified. Do not bring a minor (someone under 18) to interpret for you.

Note: There are also  sign language interpreters for persons that are deaf or hard-of-hearing. The court will provide you a sign language interpreter or other accommodation you may need.

When will the court give me a free court interpreter?

You can get a free interpreter for criminal cases, traffic court, juvenile cases, and domestic violence cases.  Many courts may also provide you an interpreter for: evictions, family law (like child support and child custody and visitation), restraining orders for elder abuse, dependent adult abuse, and civil harassment, guardianships, conservatorships, and others.

Not all courts can provide you a free interpreter in these types of cases. Ask your court’s self-help center or court clerk, or check your court’s website, to find out for sure.

How do I find a court interpreter if the court cannot provide one for me?

Look for an interpreter who has passed the required exams, and has been approved by the Judicial Council of California.

There are 2 types of approved court interpreters in California: Certified and Registered.

  • Certified court interpreters have passed a written exam and a bilingual interpreting exam, and have registered with the Judicial Council. Interpreters in California can be certified in these 13 languages:
    American Sign Language and

     Arabic  Mandarin
     Eastern Armenian  Portuguese
     Western Armenian  Russian
     Cantonese  Spanish
     Japanese  Tagalog
     Korean  Vietnamese
  • Registered court interpreters are interpreters of spoken languages for which there is no bilingual interpreting exam. They must pass a written exam, oral proficiency exams in English and in the other language, and register with the Judicial Council.

What can I do if I cannot find or pay for a certified or registered interpreter?

You can use someone else like a friend, relative, or someone else to interpret for you when you go to court. But they must be qualified.

Just because someone speaks English and another language does not mean he or she will be a good interpreter. Court interpreters need to know both languages really well. They need to know formal and informal speech. They also need to know legal terms in both English and the other language. And they need to know how to interpret—there are many rules for how to interpreter in court. Most people, even if they are fully bilingual, are not able to interpret well.

Court hearings are your only chance to tell your side of the story to the judge. If you have an interpreter that does not interpret what you are saying exactly as you are saying it, you will not have a second chance to talk to the judge. And if your interpreter does not accurately interpret for you everything that the judge or the lawyers say, you may miss really important information and be at a disadvantage. Once the court hearing is over, there is usually nothing you can do to fix a problem that happened because you had a bad interpreter. That is why it is very important you have a qualified interpreter in court.

What is the court interpreter’s job?

Court interpreters usually interpret whispering into your ear or with the help of headphones. When you speak, they will interpret your words into English loudly so the judge can hear.  Interpreters sometimes interpret at the same time as the person speaking. This is called “simultaneous interpreting.” Other times, they will let one person finish talking and then will interpret what was said into the other language. This is called “consecutive interpreting.”

In general, interpreters have to follow these rules:

  1. The interpreter will repeat what you say, just as you say it. The interpreter will not add, leave out, or change anything you say.
  2. The interpreter has to interpret every single thing you say. Don’t say anything to the interpreter that you don’t want the judge or others to hear.
  3. The interpreter cannot give you legal advice or talk to you about your case.
  4. The interpreter cannot answer your questions or explain to you what is happening in court. If you don’t understand something, say so. The interpreter will interpret your question into English so the judge, a lawyer, or other person can explain it to you or say it in a different way.
  5. The interpreter may take notes to help them remember everything you say.

Tips for working with an interpreter

  1. If you cannot hear or understand the interpreter, for any reason, tell the judge right away.  Unless you speak up, no one will know you cannot understand.
  2. Speak only in your language, even if you speak some English.  If you speak partly in English, you may confuse others or even yourself. And, you may not be able to express yourself exactly how you would like.
  3. Listen only to the interpreter. Don’t try to listen to the English at the same time. It will make it hard to focus on the interpreter and you can miss important information.
  4. Speak directly to the person asking the questions, not to the interpreter.
  5. Speak loudly and clearly. Speak at a normal pace or a little bit slower, so the interpreter can keep up with you.
  6. If the interpreter signals you to slow down, just take a pause or slow down. Don’t stop talking or lose your train of thought. The interpreter just needs time to catch up or make sure not to forget anything you are saying.

from California Courts

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Cleaning Your Record

November 11th, 2016 | Posted by admin in Criminal Law - (0 Comments)

Important Notice: This guide is intended as an information tool to assist you with cleaning up your criminal record. We do not guarantee any results for a particular case, and the information in this guide is not intended as legal advice.

If the Public Defender’s Office represented you in your criminal case, it may be able to assist you. In some counties, the public defender may help you even if that office did not represent you in your case.

California Labor Code section 432.7 says that an employer cannot ask someone applying for a job for information about an arrest or detention that did not end in a conviction. Also, an employer cannot ask about a referral to or participation in any diversion program. An employer is also not supposed to look for any record of arrest (from any source) that did not end in a conviction. If this information comes to the employer’s attention anyway, the employer cannot use that record as a factor in hiring, promoting, or terminating that person. But this same code section says that the employer may ask an employee or someone applying for a job about an arrest for which he or she is out on bail or released on his or her own recognizance pending trial. A conviction, for purposes of this code section, includes pleas, verdicts, or findings of guilt.

Because in general people are protected from having to disclose to an employer an arrest if it did not result in a conviction, this guide will focus on cases where someone has actually been convicted and does not fall under the protection of this Labor Code section.

Find out the details of your convictions

In order to begin cleaning up your criminal record, you first need to know what is on your criminal record. The court will require you to fill out forms. Whether you are requesting a dismissal or a certificate of rehabilitation and pardon, you will need to know the details of each of your convictions in order to complete the forms. Also, certain details will affect your eligibility for a dismissal or certificate.

There are several details you will need to know in order to accomplish your goals. If you have more than 1 conviction, you need this information for EVERY conviction:

1. What is your case number — sometimes called “docket number”?

2. What was your date of conviction — which is the date of your plea, verdict, or finding of guilt?

3. What is the code name and section number you were convicted of violating?

4. Was there a verdict or did you enter a plea?

• If you entered a plea, was it “guilty” or “no contest” (also called “nolo contendere”)?

5. Were you ordered to serve any time on probation (either formal or informal probation, since they are treated the same in your record)? If so, for how long?

6. Were you ordered to pay any fines, restitution, or reimbursement?

7. If you were sentenced to state prison, which one?

8. If you were sentenced to state prison, on what date were you released?

9. If you were released on parole, on what date did your parole end?

Get a copy of the information on your criminal record

The information on your criminal record information can be obtained from a variety of sources.

Here is a list of the most common sources:

1. Your court papers received at the time of conviction.

2. Your attorney, parole officer, probation officer, or contacts within the courts or law enforcement community.

3. The superior court where you were convicted. They will only have information for convictions from that county and not other counties. You will need to make a copy of all of your orders of judgment.

4. The California State Dept. of Justice, Criminal Record Review Unit. They will have your criminal record’s information for the entire state of California. Make sure you follow the directions for requesting your criminal record carefully.  You can also contact them by telephone at:  916-227-3400

There is a fee, but you may qualify for a fee waiver. You must provide written proof of your income. It may take several weeks for the record to arrive in the mail.

Figuring out your options

 

Your situation You may be able t How to do it
You were convicted of a misdemeanor and are still on probation. Request early release from probation and file a petition to have the conviction dismissed. File a petition under Penal Code section 1203.3 to have probation terminated early, and a Pen. Code, § 1203.4 petition for expungement.
You were convicted of a misdemeanor and have successfully completed probation. File a petition to have the conviction dismissed. File a Pen. Code, § 1203.4 petition for expungement.
You were convicted of a misdemeanor or infraction and were never given any probation at all. File a petition to have the conviction dismissed. File a Pen. Code, § 1203.4a petition for expungement.
You were convicted of a felony and are still on probation. Request early release from probation and file a petition to have the conviction reduced to a misdemeanor and dismissed. File a Pen. Code, § 1203.3 petition to have probation terminated early. File a Pen. Code, § 17(b) petition to get a felony reduced, and a Pen. Code, § 1203.4 petition for expungement.
You were convicted of a felony and are done with probation and/or county jail time. File a petition to have the conviction reduced and dismissed. File a Pen. Code, § 17(b) petition to get a felony reduced, and a Pen. Code, § 1203.4 petition for expungement.
You were convicted of a felony and were never given any probation at all and were sentenced to county jail. File a petition to have the felony reduced to a misdemeanor and file a petition to have the conviction dismissed. File a Pen. Code, § 17(b) petition to get a felony reduced, and a Pen. Code, § 1203.4a petition for expungement.
You were convicted of a felony and were sentenced to state prison or put under the authority of the Department of Corrections and Rehabilitation. File a petition for a certificate of rehabilitation and pardon. See the requirements below for this process, and the 10-year rule.

Certificate of Rehabilitation and Pardon

If you were sentenced to state prison or sentenced under the authority of the Department of Corrections and Rehabilitation, you are not eligible for a dismissal under Penal Code section 1203.4 or 1203.4a. However, you may be eligible for a certificate of rehabilitation and pardon. For eligibility and application requirements, contact:

The Board of Parole Hearings
Post Office Box 4036
Sacramento, CA 95812-4036

If you are eligible, you may file a petition with the superior court where you reside. This is a lengthy process and you may need a lawyer. You have the right to have the public defender in your county help you. If there is no public defender in your county, you may still have the right to get help, either from the county’s adult probation officer or, if the court thinks you need legal representation, from a court-appointed lawyer. Read Penal Code section 4852.08 to find out about your right to a lawyer.

from California Courts

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Paying a Child Support Order

November 4th, 2016 | Posted by admin in Family Law - (0 Comments)

Once the court orders you to pay child support, you must make the monthly child support payments starting on the date the judge orders.

In every case ordering child support, the court will order that a wage assignment (garnishment) be issued and served.  The wage assignment tells your employer to take the support payments out your wages.

When the local child support agency (LCSA)  is NOT involved, both parents can agree that payments can be made in some other way and can ask that service of the wage assignment (sending the wage assignment to the employer) be “stayed” (put on hold). In this situation, the parents work out how child support will be paid and handle it between them.

If the LCSA is involved, they have to agree to have the wage assignment “stayed.”  The LCSA will most likely want an active wage assignment in place with the employer if they are involved in the case. They will also want all child support payments to go through the State Disbursement Unit.

Not paying child support can have very serious consequences.  If the court finds that you have the ability to pay support but are willfully not paying it, it can find you are in contempt of court. Being in contempt of court could mean jail time for you for not paying child support.  This enforcement tool is generally used only when all others have failed since it has such serious consequences.

IMPORTANT!!  If the reason you cannot pay your child support or are falling behind is you lost your job, your income went down, you went to jail, or some other important change happened, you need to ask the court to change your child support amount. DO NOT WAIT. Even if you lose your job, you will be responsible for the full amount of child support until the child support order is changed by the court.

Making sense of your child support order

It is possible that the amount of money you owe each month for the support of your children is more than the child support amount you thought you had to pay.  There can be many reasons.  For example:

  • You may have to pay for a share (usually half of the cost) of the child-care expenses of your child while the custodial parent is working or going to school. This amount can be high since child care can be very expensive.
  • You may also owe more because you fell behind in paying your child support. When you fall behind in your child support, you will have to keep paying your current amount of support AND an additional amount to begin to cover the back child support you owe. You will be charged 10 percent interest per year on any child support that you did not pay when it was due.
  • You may also be responsible for the costs of the mother’s pregnancy, the child’s health-care expenses, attorney fees, and other costs.
  • In addition, your employer may charge you $1.50 every time that the employer takes money from your paycheck to provide support.

Interest on past-due child support
If you do not pay all the child support you owe on time, you may find that you must pay interest on the balance due on top of the amount you owe. If the amount you owe is correct and it was not paid, you cannot do anything about the interest. Interest charges are added by law, and the judge cannot stop them.

Wage Assignments

After the court decides the amount of child and spousal support, the wage assignment tells the employer how much to deduct from each paycheck and instructs the employer to send the money to the State Disbursement Unit (SDU), which will send the money to the parent owed the support.

With a wage assignment, if you are regularly employed, the employer will take support payments directly out of your paycheck. Most support is paid this way, and federal and state law requires it in almost all child support cases. It is the employer’s responsibility to withhold the wages if there is a wage assignment. If you have other wage assignments in place, child support is deducted first, before other withholding orders. Spousal or partner support assignments come after child support wage assignments.

If the local child support agency (LCSA) is involved in your case, they will automatically issue the wage assignment and begin collecting from your paycheck through your employer.

If the LCSA is not involved in your case, the parent owed the support will prepare a wage assignment, submit it to the court for the judge’s signature, and send it to your employer.

How payments made by wage assignment work

  • Once the wage assignment is served on the employer, the employer has 10 days to start taking the money out from your next paycheck.
  • If the local child support agency is involved in your case, the wage assignment is sent to your employer within 15 days of the date the LCSA finds the employer. The employer must deduct the support from your wages and send it to the State Disbursement Unit (SDU) within 10 days.

With a wage assignment that includes child support, employers must send the payments withheld to the SDU.  This means that the child support payments will come to the other parent from the SDU and not directly from your employer.  Getting payments through the SDU does not mean that you have a case with the local child support agency.

If you do NOT want your wages garnished

The court is required by law to issue wage assignments (garnishments) for the collection of child support. There are only a few situations where the court is allowed to not issue a wage assignment. Also, you can object to the wage assignment in only a few situations. For instance, if you and the other parent have an agreement that says there will be no wage assignment, it might be possible to ask the court to review your case.

Asking that the wage assignment be quashed (“set aside” or “canceled”)
When a wage assignment (also called an “earnings assignment”) order is sent to your employer, your employer will give you a blank Request for Hearing Regarding Earnings Assignment (Form FL-450). You have 10 days from when you receive this form to ask for a hearing on the wage assignment. On the form, you will have a chance to explain why you do not want your wages garnished. When you go to court, the judge will make a decision.

The reasons you can ask for the wage assignment to be canceled are:

  • If you and the other parent have an agreement that you will pay your child support directly (and if the LCSA is involved, they agree too);
  • You are the wrong person (not the person ordered to pay support);
    OR
  • ALL of the following apply:
    • It would be in your children’s best interests to cancel the wage assignment;
    • You have made payments on time for the last 12 months without a wage assignment;
    • You do not owe any back child support; AND
    • The wage assignments would cause an undue hardship.

Asking for service of the wage assignment to be “stayed” (“put on hold”)
In some cases, you may be able to get a “stay” of (a “hold” on) the service of the wage assignment, which means that the wage assignment would not be sent to your employer and you would be able to pay on your own.  Read the Stay of Service of Earnings Assignment Order (Form FL-455) for more information on the reasons you can request a stay.

In general, you can ask for a “stay” of the service of the wage assignment:

  • If you have a history of making payments on time;
  • If the wage assignments would cause an undue hardship; or
  • If the reason you are behind is that your checks to the other person have been undeliverable for 6 months.

To ask the judge to stay the wage assignment:

  1. Fill out the Stay of Service of Earnings Assignment Order (Form FL-455).  On this form, mark the box that explains you have an agreement with the other parent (AND the LCSA if they are involved in your case) for another payment arrangement.
  2. You will get a court hearing where you can ask the judge to stop service of the wage assignment.
  3. If the judge agrees with your request, he or she will sign the stay.  This stops the wage assignment from taking effect.
  4. If you get a stay, it is very important you both keep good records of all the payments, in case there are any issues in the future.

See the Stay of Service of Earnings Assignment Order (Form FL-455) for more information on “staying” a wage assignment.

If you do not follow your arrangement, the other parent (or the LCSA) can ask the court to end the stay on the wage assignment and ask the employer to start garnishing your wages.

If you disagree with the amount on the wage assignment

When a wage assignment order is sent to your employer, your employer will give you a blank Request for Regarding Earnings Assignment (Form FL-450). You have 10 days from when you receive this form to ask for a hearing on the wage assignment. On the form, you will have a chance to explain why you think the amount on the wage assignment is wrong. When you go to court, the judge will make a decision.

Remember that this is not the form you use to ask for a change in the amount of your child support. This form is used only because you believe that something is wrong with the wage assignment, like the amount that will be taken from your paycheck is the wrong amount.
If you cannot afford to pay the amount on the wage assignment

If your employer is taking too much out of your paycheck and you cannot afford it, there may be something you can do.  It depends on what amounts are being taken from your check.

If your employer is just taking out the monthly child support that the court ordered (without anything added to it), then there is probably nothing you can do except go to court to ask for your child support to be changed. BUT if you just had a court hearing and that is the order the judge made and nothing has changed since the hearing, you probably will not succeed since it is the amount the judge ruled you have to pay.

If your employer is taking out 50 percent or more of your paycheck or an amount much higher than what your monthly child support order is, you probably have a past-due child support balance.  In this case, there may be something you can do.  The court (and the LCSA if they are involved in your case) has a little more flexibility in how much money you have to pay every month to start paying off your back child support.

First, contact the local child support agency (LCSA) if they are involved in your case, to see if you can make arrangements to lower your payments.  If that does not work, you can file court forms to ask a judge to set a payment that you can afford. Remember, this payment is for the back child support.

from California Courts

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