5 Reasons to Hire an Attorney in a Conservatorship

Screenshot Even though you can legally take on the responsibilities of a loved one’s financial and medical decisions when they become unable to do so themselves, being a conservator isn’t to be taken lightly. It’s not just about signing a document; that’s just the beginning. There are many ongoing obligations of a conservator of an aging adult that must be considered before agreeing. Obligation #1: Managing The Conservatee’s Personal Care (Acting in Their Best Interest) You don’t just step into the role of conservator; you must do so with the respect to the conservatee’s dignity. Following California Probate Codes governing fiduciary duties, a conservator must make sure the rights of the conservatee are protected. This includes taking into consideration their wants and needs before making any decisions, respecting their ability to receive visitors, and acknowledging any request for terminating the conservatorship. You also must be aware that once a judge signs off on the letters of conservatorship (which detail what you are allowed to do as conservator), you can be held personally liable if found negligent or going against the conservatee’s best interest. Obligation #2: Keep Detailed Records of All Actions and File Annually with the Court As a conservator, you must maintain meticulous accounting regarding changes to income and expenses, and the health and living situation of the conservatee. After filing an initial appraisal of all assets, the court will appoint someone to conduct periodic reviews, usually every two years after the first twelve-month initial review. Conservator’s must also attend all court hearings and court-offered trainings, keep their contact information up-to-date, and cooperate with investigators. Failing to meet these requirements may be cause for intervention or removal as conservator. Obligation #3: If Conservator of the Estate, Manage Finances As a conservator of the estate, there are many requirements that must be met beyond simply managing finances. First, you must file a surety bond with the court (unless ordered otherwise). Second, you must track all expenses, maintain all necessary insurance (such as life insurance), and properly file all federal and state taxes. Finally, it’s always a good idea to open a separate conservatorship checking account. This way, you have a better gauge on the conservatee’s finances, can keep from comingling your money with theirs, and know when it’s necessary to borrow money on their behalf. Obligation #4: If Conservator of the Person, Make Healthcare Decisions. As a conservator of the person, you have the authority to approve medical treatment and manage caregivers. However, according to the Lanterman-Petris-Short Act, you must attend separate court hearings to place a conservatee in a psychiatric hospital, force feed them medications, or sterilize them. You must also provide copies of your letters of conservatorship to any hospital or care facility that request proof of conservatorship. These legally complex obligations can become emotionally draining, which is why it’s best to have an experienced attorney on your side. Check out our guide to Navigating Conservatorship for Aging Adults and then give King Law Firm Attorneys at Law, Inc. a call.

When someone you love begins to show signs of dementia or other cognitive declines, you may be faced with several emotional and practical challenges. For instance, your loved one’s behavior may change, or they may begin to lose their memory or the ability to perform daily tasks, leading to financial losses or further decline in health. When this occurs, a lot of people petition for conservatorship over their aging adult. This allows them full control over major life decisions that may include financial and healthcare directives. However, for some adults, this may lead to feelings of resentment and anger as they no longer have control over their life. Recent legal challenges in California have helped mitigate the stranglehold some may have on a conservatorship, like the conservatiee’s right to contest a conservatorship or petition the court to end a conservatorship, but it can still be very difficult to end a conservatorship once it’s in place. Luckily, there are alternatives to conservatorship you can pursue to not only provide a healthy support system for someone who may become incapacitated, but to help guide and assist them when they are unable to do so on their own, all while avoiding a long legal battle or straining a loving relationship. 1. A Durable Power of Attorney A durable power of attorney is a great way to assist with finances and healthcare decisions without taking all rights away from their loved one. It ensures that how a person’s finances are handled, or what medical treatments they want or don’t want, are always honored. 2. An Advanced Healthcare Directive Similar to a durable power of attorney, the advanced healthcare directive provides information for what procedures and treatments you want and don’t want in specific situations without court intervention. Fill out this form to setup your Advanced Healthcare Directive. 3. A Living Trust Most may believe that a living trust is simply for listing what will happen to assets upon a person’s death without probate, however, a living trust may also allow for provisions should a person become incapacitated. 4. Supported Decision-Making Agreements Supported decision-making agreements allows the incapacitated party to retain authority over their financial and healthcare decisions with the support and necessary assistance of a trusted individual. Remember, whereas a conservatorship can only be sought after someone becomes incapacitated, these alternatives to conservatorship must be drafted and signed while each party is of sound mind and body, allowing the party who becomes incapacitated the opportunity to choose someone they absolutely trust to follow their assigned directives. It also gives the chosen proxy or agent the opportunity to provide valuable feedback on the other person’s financial and healthcare wishes prior to the individual becoming incapacitated. Reach out to an attorney to learn more about which alternatives to conservatorship may be in the best interest of you and your loved one, then download our Guide to Navigating Conservatorships for Aging Adults should you like more information, practical tools, and compassionate insight into the conservatorship process.

In most states, the terms “Guardianship” and “Conservatorship” are one and the same; interchangeable. California, however, has a very clear distinction between the two. A guardian is someone who takes care of a child under the age of 18 when the child’s parents are deceased or incapable of properly caring for the child. A conservator, on the other hand, is someone who must take care of certain aspects of a child’s life once they turn 18 (or become a legal adult) because they are developmentally disabled. Developmental Disability Being developmentally disabled means the individual has been diagnosed with an ongoing disability (i.e. autism, cerebral palsy, or epilepsy) prior to turning 18. Some disabilities excluded as reasons for setting up a conservatorship include brain trauma, depression, and anxiety disorders. Types of Conservatorships There are two types of conservatorships: general and limited. A general conservatorship strips the disabled person of all individual autonomy. Basically, it eliminates their civil and legal rights, removing their ability to make decisions on everything from finances, healthcare, and education. In a limited conservatorship, the developmentally disabled individual retains most of their civil and legal rights. Instead, the court appointed conservator may only have control over specific aspects of the person’s life, which may include the individual’s living arrangements, ability to access confidential records and enter into contracts, social and sexual relationships (including marriage), healthcare, and education. The Dangers of Conservatorship The goal of a conservatorship is always to appoint a trustworthy, responsible person as conservator. However, because anyone over the age of 18 can become a conservator, this isn’t always the case. Half of all conservators in the U.S. are strangers, usually someone from the California Department of Developmental Services or a paid professional. Also, if a conservator dies, the judge will select a new conservator regardless of who the deceased conservator may have wanted to succeed them. Because of this, conservators may easily take advantage of the conservatee, whether financially, emotionally, or physically. Though there are safeguards when it comes to finances, many people still find ways to exploit the conservatee for financial gain. Conservatorships also do not protect against sexual or physical abuse, nor do they offer protection if a conservatee is arrested. Minor Conservatorships Though conservatorships in California are generally meant for adults, there are a few exceptions. When both biological parents die, a guardian will be appointed to care for the child’s health, education, and general well-being, but a conservator may be appointed to care for the minor’s financial estate, especially if they receive certain assets and property as part of a will or trust. A conservator may also be setup for a minor if the child needs specialized care the parents are unable to provide. With all of this in mind, conservatorship should always be a last resort. Setting up a power of attorney or hiring an advocate for decision-making may be better options for your specific circumstances. Call King Law Firm Attorneys at Law, Inc. to discuss your options.