If your spouse of other loved one becomes incapacitated without having a proper power of attorney prepared for health care (PAHC) or a durable power of attorney for financial matters (DPAFM), a conservatorship may be needed. In a conservatorship, the court appoints a conservator to take charge of the incapacitated person’s (the conservatee) personal needs, financial matters or both.
In a conservatorship, the court determines that the conservatee does not have the sufficient capacity to care for their own personal needs or make decisions. In a conservatorship of the estate, the court determines that the conservatee does not have the legal capacity to enter into transactions involving financial matters.
How to Establish a Conservatorship
To create a new conservatorship, you need a court proceeding to determine whether the person in question is indeed considered incapacitated according to the law. The judge tries to put the best interests of the conservatee first so he/she will carefully consider the best person to be put in this position in this order:
- First choice is always the spouse, domestic partner, or other nominee
- Second- an adult child or the child’s nominee
- Third- a sibling or sibling’s nominee
- Last- any other eligible person or entity (appointed attorney would work here)
The Conservator’s Responsibilities
The conservator’s primary role is to ensure that the conservatee’s needs are met. The duties include: making decisions about their living arrangements and daily care like planning for the conservatee’s meals, clothing and health care.
A conservator of the estate handles the financial matters which include:
- Filing an Inventory and Appraisal document with the court; this document lists all the assets owned by the conservatee and the value of each on the date the conservator was appointed.
- Paying the conservatee’s bills and expenses
- Making appropriate investments on their behalf
- Applying for entitlement benefits
- Keeping financial records and filing periodic accountings with the court
All conservators are required to have a copy of the Judicial Counsel of California’s Handbook for Conservator that can be viewed online at courtinfo.ca.gov/selfhelp, under the “Seniors” heading.
Unlike an Agent under a PAHC or DPAFM, a conservator must submit to the court:
- Formal written documents informing the court of address changes for all relevant persons.
- Regular accountings that explain how the conservatee’s finances were handled.
- Intentions to sell, abandon or give away any of the conservatee’s personal or real property.
- Any other matters that the court orders the conservator to report on.
Unlike a PAHC or DPAFM Agent, the conservator may not resign without first obtaining the court’s permission. If you are in this situation or would like to plan ahead in case the instance of incapacitation happens to your family, contact one of our attorneys today for a free consultation. Being prepared is the best way to avoid this confusing situation.
Tags: conservatorship, conservatorship of estate, dpafm, financial matters, incapacitated person, pahc, personal needs
Conservatorship is not warm and fuzzy. Sometimes, there is no other choice. Many times, there is but those choices are ignored in favor of conservatorship.
All across America, unlawful and abusive conservatorships are pauperizing wards and their families. The final irony is when the fiduciaries have picked the financial bones of their wards dry, the wards then are thrust onto the Medicaid roles at taxpayer expense.
For more information, visit http://www.StopGuardianAbuse.org, http://www.AnOpenLetterToCongress.info, and http://NASGA-StopGuardianAbuse.blogspot.com.
Yours,
Elaine Renoire
NASGA
I am trying to assist a friend who has been declared incapacitated. She wants to replace her conservator because he will not meet with her and her son to discuss her concerns and finances so that she can feel at peace. The conservator is billing her for what she feels is too much for the services he is providing. She feels if that is legal for him to do she at least should be able to choose the people providing those services and pay them. She is 92 and she feels she should be doing things she likes with old friends and family. She has concerns about what will happen to her son and how she can ensure the conservator will do what she wants. There was a court hearing three years ago and her son did have an attorney. They had the hearing and after the hearing they were outside in the hall, His mother voiced her choice to remove the conservator and all of the people involved went back into court. ( that was the conservator, the conservator’s attorney, his mother’s attorney, his attorney and he and his friend.) His attorney did not say what his mother had said “that she wanted to replace her conservator.” the judge got fed up and told everybody to get out. My friend’s son got mad with his attorney and then she said he was the stupid one because everybody had just passed him around until he ran out of money. Is his attorney liable for not saying what his mother said ?, are all of the other people liable ? they all knew and did nothing. This is how things have played out for this lady. Is there any hop for her ? Is there any way she can speak up for herself ? she has a hearing coming up to review the accounting.
The conservatorship process is complicated, expensive, full of rules and formalities…and in some cases, the only way to assure a conservatee is protected and safe. There is only one way to deal with a complicated situation like this one…get in touch with an attorney that specializes in conservatorships, preferably in the jurisdiction of the elderly lady’s residence. Let the attorney have access to all of the facts and all of the documents, then she will have adequate representation to begin the process of getting what she wants.
BTW, this is a great example of doing planning and avoiding these kinds of situations entirely…a trust prepared to deal with elder law issues as well as estate issues…a Durable Power of Attorney…perhaps choosing a professional or a bank to act as trustee. It is usually the case that some quality planning avoids these kinds of nasty, expensive scenes…especially during a period in a person’s life that should be focused on comfort and quality of care.
-Michael McGuire