Legal Question in Family Law in California

My mother was going to get a divorce when the simvastatin she was taking for hight cholesterol made her get hospitalized for 2 weeks and now she can not remember anything. She can not take care of herself and she is insulin dependent diabetic along with numeous other health problems. She is 77 and her husband is 82 with a gambling problem. He had 800,000 dollars he gambled away and now he is borrowing from her. We are afraid he will let her die or at the least not take care of her. She does not want to leave him because she is child like now and says he is her husband and she is supposed to be with him. How can we get her the divorce she wanted before and needs now to come live with us?

She does not have much money left and we know he will spend it and she will give it freely to him now. Please help us. Her children have been taking turns staying with her but we all live in other states and have families we need to get back to.

Asked on 11/26/10, 9:48 pm

1 Answer from Attorneys

James Sanchez Law Office of James V. Sanchez

Although it may be more desirable to think of a divorce, it sounds more like a conservatorship is what is needed. There are several issues here including marital property, incapacity, and her long term care. An appointment with a competent attorney near you seems an imperative.

Regarding a divorce, although you don't provide facts sufficient to make a clear determination, it would appear there are questions regarding "Mother's" money versus "Father's" money. California law has distinct rules regarding the characterization of marital versus separate property. Additionally, depending on the length of the marriage and the financial position of the husband and wife, spousal support may be due, even at their advanced age.

It seems that the more important issue here is that your mother may no longer be capable of making decisions regarding her legal matters, and may be in danger of elder abuse, even by a spouse. A conservatorship of both her person and her estate would empower her conservator with the power as well as the duty to watch over her and her estate. Conservatorship comes with a great many duties to report to the court and protect the conservatee, the Mother, and it shouldn't be entered into lightly.

A competent family law or probate (California defined conservatorships under the Probate code), would be your best source of assistance. Please note, that as a resident of California, if your mother has been here long enough, the California court will have jurisdiction now and for the future of her conservancy. The duties of the conservator will be managed by the California court, even if you move her out of state.

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Answered on 12/02/10, 12:35 am

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