Your family member is suffering from progressive dementia or has recently had a stroke. Health care workers are refusing to discuss matters with you for “privacy” reasons. No one seems to be in a position to make important decisions. Property needs to be managed and protected. Documents need to be signed and bank accounts accessed. You need to arrange for a more appropriate care facility.How do you manage the affairs of someone no longer able to do this for themselves? Depending on the circumstances, the answer may be a conservatorship.
Q: What is a Conservatorship?
A: A conservatorship is a court proceeding where someone is appointed to care for another adult who is physically or mentally unable to attend to their personal needs, their financial affairs, or both. The individual appointed by the court is known as the "conservator.” The person being taken care of is known as the “conservatee.” A conservator appointed to make personal care decisions is known as a “conservator of the person.” A conservator appointed to manage financial affairs is known as a “conservator of the estate.” Commonly, an individual is appointed to act as both conservator of the person and estate.
Q: When is a conservatorship appropriate?
A: A conservatorship of the person may be appropriate if the individual is unable to provide for their personal needs. This may be due to advanced age, dementia, a physical injury or any other debilitating event. If they are unable to manage their financial affairs, or to resist fraud or undue influence, they may benefit from a conservatorship of the estate. Common scenarios where a conservatorship may be called for:
- The individual has no family and their ability to care for themselves is slipping
- They have family, but the level of care needed is beyond what they can offer
- The individual will not recognize that they need help, and resists assistance
- A family member or “friend” is taking advantage of them
Q: Who can be a conservator?
A: Nearly anyone. The Probate Code has a list of people who are given, in order, preference for appointment. For example, an adult child would have preference over a friend. If the proposed conservatee planned ahead, they could have nominated a conservator in their estate planning documents. The nominee would be at the top of court’s list of preferred conservators. The court may, under appropriate circumstances, choose to bypass someone on this list. Another option is a private professional conservator. They know their job and the available resources in the community. They are bonded and registered with the State, the Department of Justice, and the court. They are well skilled to serve as conservator of the person, estate, or both. If there is no family member willing to be appointed and a private conservator is not desired, the court may appoint the Public Guardian. The Public Guardian is an office of the County of San Diego. Through the Public Guardian’s office, the County can act as conservator of the person and estate when no one else will. Friends, family members, or professional conservators are usually preferable to the Public Guardian’s office. The Public Guardian’s case workers are caring and conscientious, but unfortunately they have large case loads, and are unable to give the attention that a family member or private professional could.
Q: Are there other ways to handle physical or mental incapacity without going to court for a conservatorship?
A: Yes. With advanced planning, a conservatorship can often be avoided. Powers of attorney, living trusts, advanced directives, and other estate planning tools can give friends and family members the legal authority needed to act on behalf of the incapacitated individual. Whether or not these would be adequate depends on the particular situation. Perhaps the person never drafted a trust or powers of attorney, and they are unwilling or unable to do so now. Perhaps they did draft them, but the family is finding the documents ineffective in dealing with existing problems. Here are some of the various alternatives, their strengths, and their limitations:
Powers of Attorney: A financial power of attorney grants an “agent” the authority to perform specified acts on behalf of the “principal.” Usually these are very broad in the scope of powers granted. A well-worded financial power of attorney often will make a conservatorship of the estate unnecessary. There are however, possible limitations. The required transaction may be beyond the scope of the agent’s authority under the power of attorney. Even when valid, institutions often are hesitant to honor powers of attorneys. Forcing them to honor one can be troublesome. A more common problem, however, arises from the ability of the principal to continue using their own accounts along with their agent. Example: Robert Sr. is suffering from early to mid-stage Alzheimer’s. He signs a power of attorney allowing his son, Robert Jr. to manage his financial affairs. While Robert Jr. is dutifully using the power of attorney to pay his father’s bills and assuring the utilities are not shut off, Robert Sr. “loans” $20,000 to the gardener, whom he barely knows. This can happen with a power of attorney, but not a conservatorship. A conservator takes control of all of the assets of the protected person. The conservatee cannot sell his own assets or determine how they will be invested without the consent of the conservator. The power of attorney only granted Robert Jr. the power to act on behalf of his father. It did not keep Robert Sr. from also acting on his own behalf…however unwisely.
Trusts: A trust can be a very powerful planning tool. The effectiveness of a trust as an alternative to a conservatorship of the estate is dependent on all of the assets having been properly funded into the trust. If there are important assets left outside of the trust, the successor trustee will have no control over them. This may not be a problem if the trustee, or sympathetic family member, is also the agent of a well-drafted power of attorney, and has control of the omitted asset. Another potential problem is when the incapacitated individual is still acting as trustee, and will not or cannot resign. They will continue to have authority to act on their own behalf until they do resign or are removed. In a given case, this may be problematic.
Advanced Care Directive/Health Care Powers of Attorney: If these are in place, they will almost always be effective in dealing with medical care issues. Family members may run into problems of legal authority, however, when trying to make non-health care decisions such as housing, home care staffing, and social contacts.
Community Property and “Probate Code 3100” Petition: It is rare for a spouse to need a conservatorship of the estate. Chances are most, if not all, of the property of the marriage is community and in the name of both spouses. The disabled person’s spouse will have full access to all community property and joint tenancy account funds without the need for a conservatorship. Problems arise, however, when there is property that is only in the name of the incapacitated spouse, and the other spouse needs access to that property. The legislature of the State of California wisely adopted Probate Code 3100 so that under certain circumstances, a spouse will not have to establish a conservatorship over their disabled spouse if they can specify exactly what they need authority to do. To qualify for this, one spouse needs to have legal capacity, the other not. The spouse with legal capacity must specifically describe the action they would like to take. Example: Alex, who is 78 years old, had a stroke. He no longer has more than rudimentary understanding of his surroundings. Taking care of him is becoming too difficult for his wife, Helen. She has found a nice apartment for herself next to an assisted care facility appropriate for Alex. She would like to sell their home and invest their assets to pay for the facility and her apartment. When Helen tried to list the home for sale, she found out that legal title could not pass with just her signature; she needed Alex’s signature too, or legal authority to sign on his behalf. Alex has no legal capacity to sign himself and he never signed a power of attorney. Under these circumstances Helen could file a petition under Probate Code 3100 asking the court to authorize her to sign on her husband’s behalf. If Alex had a bank account in his name alone, and Helen needed those funds for his care, she could also request that the bank account be transferred into her name. The court would, under most circumstances, grant both of these requests. Helen would have saved time and money compared to a conservatorship and wouldn’t have the on-going duty to report to the court that a conservator has.
Representative Payee: If the only reason for the conservatorship is to get control over an individual’s social security, welfare, or veteran’s benefits income, you can ask the relevant agency to appoint you a Representative Payee. The Representative Payee would then receive the checks in their name, for the benefit of the incapacitated individual.
Whether any of these would be effective alternatives to conservatorship would depend upon your particular situation. At San Diego Elder Law Center, our estate plans will provide you with all the tools to avoid conservatorship before incapacity strikes. If your family member is already incapacitated, we will try and find cost-effective alternatives to conservatorship. If there is a good alternative based upon your situation, we will identify it and pursue it for you.
If the facts of your case are such that conservatorship is the best option, we can represent you in your petition to the court. If you wish to oppose someone else’s petition to be appointed conservator, we can represent you in that proceeding, as well.
Q: I’ve heard of the term “limited conservatorship.” Is that something less involved than a regular conservatorship?
A: No. A limited conservatorship is for developmentally disabled adults only. The State of California has a stated policy to encourage as much independence of the developmentally disabled as possible. Rather than the broad grant of authority in a standard conservatorship (actually referred to as a “probate conservatorship”), a limited conservator’s authority is divided into seven (7) separate categories. Each of these must be specifically addressed, and the need for each individually established. If all seven were granted, the authority of the limited conservator would be comparable to a probate conservator. If, however, a developmentally disabled individual who is fairly high functioning was found to able to make their own educational and social contact decisions, they would retain the right to do so. The conservator’s power in that case would be “limited” to the remaining five powers. Click HERE for more information regarding limited conservatorships.
Q: My son is schizophrenic, and has gone off his medications again. He needs to be re-hospitalized and his medications stabilized. Can I get a conservatorship over him to do this?
A: The law concerning conservatorships over people with a diagnosis of mental illness is very different than discussed above. You need a different type of proceeding called an “LPS” conservatorship (short for Lanterman, Petris and Short, the authors of the original legislation). If you have questions about an LPS conservatorship, please feel free to call us.