Blog
Free 30-Minute Family Law or Estate Planning Consultation
LONICH PATTON EHRLICH POLICASTRI
1871 The Alameda, Suite 400, San Jose, CA 95126
Phone: (408) 553-0801 | Fax: (408) 553-0807 | Email: contact@lpeplaw.com
Located in San Jose, Lonich Patton Ehrlich Policastri handles matters for clients in northern California, specifically San Jose and Silicon Valley. Our services are available to anyone within the following counties: Santa Clara, San Mateo, Contra Costa, Santa Cruz, Monterey, and San Benito. For a full listing of areas where we practice, please click here.
DISCLAIMER
This web site is intended for informational purposes only and is not legal advice. Nothing in the site is to be considered as either creating an attorney-client relationship between the reader and Lonich Patton Ehrlich Policastri or as rendering of legal advice for any specific matter. Readers are responsible for obtaining such advice from their own legal counsel. No client or other reader should act or refrain from acting on the basis of any information contained in Lonich Patton Ehrlich Policastri Web site without seeking appropriate legal or other professional advice on the particular facts and circumstances at issue.
© 2022 Copyright Lonich Patton Ehrlich Policastri. All rights reserved. Privacy Policy
What Happens in a Restraining Order Hearing?
/in Family Law /by Gretchen BogerIf you find yourself in a situation where you need to file a restraining order, you are likely nervous, scared, and unsure of what may happen. Understanding the process and knowing what to expect during the hearing may ease some of your anxiety.
Why You Might Need a Restraining Order
In California, a restraining order or protective order is a legal order issued by the court that requires one person to stop harming another, whether it is physical, sexual, stalking, threatening, or harassment. The person getting the restraining order is called the “protected person,” and the person on the receiving end of the restraining order is called the “restrained person.”
Restraining orders can include the following:
There are four different types of restraining orders, including:
What to Expect During the Process
In California, an individual must first file a petition with the court. At the hearing, the petitioner (the person who filed the order) will have an opportunity to present evidence and testimony to support their claims. The respondent (the person the order is filed against) will also have a chance to give evidence and testimony.
The judge will review the evidence and decide whether or not to issue a restraining order. They may impose other conditions, such as requiring the respondent to attend counseling or surrender their firearms.
We’re Here to Help
If you are in a situation where you need to file a restraining order, don’t hesitate to get in touch with our attorneys at Lonich Patton Ehrlich Policastri. Our experienced lawyers have combined litigation experience of over 100 years in family law matters. We will work with you and provide you with support and guidance as you work through this challenging situation. Call us at 408-553-0801 to schedule your free and confidential consultation.
Power of Attorney Duties after the Principal’s Death
/in Estate Planning /by Michael LonichPower of attorney (POA) is a legal document that authorizes someone to act on behalf of another person. The person who designates power of attorney is the principal. The person acting on behalf of the principal is known as the agent.
This can be helpful if you need to delegate authority temporarily to manage finances, make medical decisions, or handle other legal matters when you are unable to act on your own behalf, such as during medical emergencies or extended travel abroad.
However, after the principal dies, a question often arises: who will handle their estate and manage affairs? The answer is a person with power of attorney doesn’t necessarily continue to manage the principal’s affairs after death.
Types of POA
If you are in a situation where you are considering granting power of attorney, you may be wondering what arrangement is most suitable. There are several common types of Power of Attorney designation:
General POA grants a designated agent the power to make decisions on behalf of the principal for a broad spectrum of matters, including banking transactions, sale or purchase of property, or contractual agreements. This should be used only in specific situations, as it grants extensive control to an agent to act on the principal’s behalf.
Durable Power of Attorney grants power to an agent if the principal becomes mentally incapacitated. This differs from other POAs, as typically, they are structured to end if you are mentally incapacitated. It’s important to note this doesn’t replace a conservator arrangement, as DPOA must be granted while the principal still has full mental faculties and cannot be granted retroactively.
A limited POA allows a principal to grant power of attorney to an agent for use only in specific circumstances, such as cashing checks. Typically this type of POA is only granted for a set period or a particular task.
Medical POA allows a principal to designate a specific health care agent to make medical decisions if they are incapacitated. This can include making decisions on medical treatments, surgery, life support, organ donation, and medical records release. An agent with medical POA also ensures a Living Will directive or Do Not Resuscitate order is carried out according to the principal’s wishes.
What happens after the principal’s death?
The validity of an assigned power of attorney expires in the event of the principal’s death. This means a person with POA of any kind can no longer act on behalf of the principal. A power of attorney order also cannot substitute or replace a will.
Once the principal has died, only a designated estate executor can manage the principal’s estate. A person with POA might also be the executor of a will, but it isn’t automatically assigned. Once the principal dies, their last will and testament will guide how their affairs should be handled. If they do not have a will, it falls to the courts to distribute any assets.
LPEP Law is Here to Guide You
If you have questions regarding power of attorney arrangements, reach out to the experienced team at Lonich Patton Ehrlich Policastri to discuss. Our team of seasoned family law and estate planning attorneys have years of experience in San Jose and the Bay Area and are ready to guide you to find the right solution.
Call 408-553-0801 or fill out our contact form to schedule a complimentary 30-minute consultation today.
What is the Most Common Child Custody Arrangement?
/in Family Law /by Gretchen BogerWhen parents divorce, one of the most challenging issues is who will have custody of the children. Both parents want to be involved in the responsibility of raising their children. Joint custody is the most common child custody arrangement where both parents share responsibility for their child. This can mean that the child lives with both parents equally or that one parent has primary physical custody of the child, with the other parent having visitation rights.
Joint custody arrangements include joint legal custody, where both parents have a say in decisions about the child’s welfare, and joint physical custody, where both parents have equal time with the child. In most cases, parents have joint legal and physical custody.
Benefits of Joint Custody
There are many benefits, both for parents and children. For parents, joint custody can help to reduce conflict and increase cooperation. It can also provide a greater sense of stability for children.
And while joint custody arrangements can be challenging at times, they often provide a more positive parenting experience than either sole custody or visitation arrangements. Therefore, a judge will rule that both parents have joint legal and physical custody in most cases. This allows the children to have equal access to both parents, and both parents share the decision-making.
Drawbacks of Joint Child Custody Arrangements
While joint custody can have many benefits for children, it can also present some challenges. One of the most common problems is that it can be difficult for children to adjust to living in two separate households. They may feel torn between their parents and have difficulty developing a strong sense of identity.
Additionally, this type of arrangement can be logistically complicated, especially if the parents live in different parts of the city or country. Coordinating drop-offs, pick-ups, and extracurricular activities can be a challenge, and it can be tough on both parents and children if there is a lot of back-and-forth.
These are some reasons why a judge may rule for one parent to have sole physical custody and joint legal custody for both. For example, if one parent lives in another area and shared physical custody would disrupt the child’s schooling, the judge may rule that the child live with one parent but grant the other parent extended visitation rights.
Where You Can Go for Help
While joint custody arrangements can be challenging at times, they often provide a more positive parenting experience than either sole custody or visitation arrangements. If you are considering a joint custody arrangement for your family or have questions about how it will work in your specific situation, please contact our attorneys at Lonich Patton Ehrlich Policastri for more information.
We have years of experience helping parents resolve child custody issues and can help you create a parenting plan that meets your children’s needs and gives you both the flexibility and stability you need. If you live in San Jose or the greater Bay Area, call us at 408-553-0801 to schedule your free consultation.
Does Having an Adopted Child Impact Child Custody Cases?
/in Family Law /by Riley PenningtonMany questions often arise once a divorce is on the table, especially when children are involved. For example, how will the children be shared between their parents? Who will have physical custody, and who will have legal custody? How will child support be handled?
Determining custody of children can be a complicated matter in any divorce. However, when a couple shares an adopted child, it can raise additional questions on how it might impact the divorce process and arrangements once the divorce is finalized.
Under California law, adoptive parents are considered the legal parents of any adopted children once the adoption is final. Thus, adoptive parents legally have the same responsibility to ensure that children receive care and support as any biological child would following a divorce.
Divorce and Child Custody For Adopted Children
When a divorce occurs with children involved, it is the court’s responsibility to determine each parent’s physical and legal custody responsibilities.
Legal custody grants parents the authority to make important decisions regarding medical procedures, education, religion, and more. Typically this is a shared responsibility, and both parents remain involved in making significant decisions regarding children after the divorce.
Physical custody determines where the children will reside, while visitation rights determine how often they’ll see their other parent outside of these times.
Adoptive Parental Rights in California
There are two common situations regarding parents with adopted children. First, there are instances where parents have adopted a child with no relation to either of them. There are also frequently situations where one parent adopts the biological child of their partner after marriage.
If one parent is the biological parent and the other parent has adopted the child after marriage, the court will likely award custodial rights to the birth parent following a divorce. However, there can be contributing factors, such as abuse situations, where the ruling might not be as straightforward. Adoptive parents can also apply for shared custody of their partner’s biological child after divorce, as they are considered to have all of the rights of a legal parent after an adoption is complete. The potential significant emotional connection between the adopted parent and child further complicates the physical custody issue.
In situations where parents have adopted a child that is not related to either of them biologically, both parents are considered the legal parents of the child after the adoption is finalized and share responsibility for the child’s care in the event of a divorce.
In either scenario, adoptive parents can be required to provide financial support for adoptive children following a divorce. The court will determine what that responsibility should be during divorce proceedings.
As you can imagine, there is no one-size-fits-all answer to the question of how best to handle custody of children during a divorce, as the outcome of any custody case will be based on the unique facts and circumstances of each family. In California, courts are required to consider the child’s best interests when making custody decisions, whether the child is adopted or biological.
Qualified California Family Lawyer
If you are considering divorce and have an adopted child, it is essential to speak with a family law attorney who can provide supportive guidance during what can often be a difficult and emotional time for all involved, especially adopted children.
At Lonich Patton Ehrlich Policastri, we have a team of experienced family law and estate planning attorneys ready to help you navigate your divorce and achieve the best possible outcome for your family’s unique situation. Call 408-553-0801 today to schedule a consultation.
How To Choose A Law Firm For Estate Planning
/in Estate Planning /by Michael LonichNo one wants to think about estate planning, but it’s a critical part of life. As you grow older, it becomes increasingly important to have a solid plan. A well-drafted plan can ensure your assets are distributed according to your wishes after you pass and help minimize the tax burden and emotional stress on your loved ones.
What to look for in a law firm
If you’re looking for a law firm to help you with estate planning, it’s crucial to select one with experience and expertise. When looking for a reputable firm, your local bar association or the Better Business Bureau is a great place to start. They will be able to tell you if there have been any complaints against the law firm.
Also make sure the firm you choose has experience in estate planning. Not all lawyers specialize in this area of law. Therefore, it is important to find a firm that is well-versed in all aspects of estate planning, including estate and trust administration, litigation, and probate, to ensure they can properly advise you.
After selecting a law firm, set up a consultation to ensure that you are comfortable with your attorney and feel confident that they can properly provide guidance and represent your interests.
What to expect during the estate planning process
Estate planning can be complex, but with the help of a knowledgeable lawyer, it doesn’t have to be daunting. The main components can include preparing a Last Will and Testament that outlines who will serve as the executor of your estate and designating your beneficiaries and what they will inherit. This document also outlines how your property and assets will be handled.
You may also want to set up a Durable Power of Attorney or POA, which allows designated agents – usually family members or close friends – to act on behalf of an incapacitated person if necessary. You can also designate a Healthcare Power of Attorney to authorize an agent to specifically make medical decisions if you cannot communicate your wishes in an emergency.
You may also want to consider setting up a Living Trust, which allows you to create a trust and transfer assets for your beneficiaries while you’re still alive, or a Living Will, which outlines your directives for how medical treatments should be handled if you are unable to advocate for yourself.
The importance of estate planning
Every person should consider having an estate plan in place in case something happens and they cannot make decisions for themselves. If you don’t have a plan in place, your loved ones may have to go to court to sort out your affairs. This can be a costly and time-consuming process, so it’s best to take care of this important task ahead of time.
LPEP can help
There are many firms out there, and it’s essential to choose the right firm for you. Our team at Lonich Patton Ehrlich Policastri has decades of combined experience navigating complex family law and estate planning cases in the Bay Area. We are ready to help you navigate your unique situation. Call us at 408-553-0801 to schedule a free consultation today.