San Diego Elder Law
Assist Your Loved Ones
Manage the Affairs of Someone Unable to.
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 terms of 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 has 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.
A trust can be a very powerful planning tool. As an alternative to a conservatorship of the estate, a trust will usually work well. 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. Fortunately, we can usually solve this problem either by using the incapacity provisions in the trust, or by going to court. Even when court involvement is unavoidable, it is usually easier, faster and less expensive than a conservatorship. Unfortunately, while a trust can usually avoid a conservatorship of the estate, it may not prevent the need of a conservatorship of the person. At its core, a trust is a document concerning the management and use of financial assets. If an individual is unable to care for themselves, and unable to cooperate in care decisions, or in denial or resistant to assistance, the trust will not provide the legal authority you need to require such care and medical treatment.
Often, health care directives can avoid a conservatorship of the person. If these are in place, they usually will be honored by medical and health care professionals. Family members may run into problems, however, when trying to make non-health care decisions such as housing, home care staffing, and controlling social contacts. Health Care Powers of Attorney are also not very effective if the incapacitated individual is refusing help and obstructing decisions in their own best interests. In such a case, a conservatorship of the person may be unavoidable.
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 a needed action, such as the sale or refinancing of a home, requires the signature of both spouses…and one is not able. Problems can also arise when there is separate (non-community) property, or community 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 adopted Probate Code §3100 so that under certain circumstances a spouse would not have to establish a formal 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.
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. The agency will have some reporting and accounting requirements, but much less intrusive than a conservatorship.
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.
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. We invite you to review our website’s discussion of Alternatives to a Conservatorship
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.
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, for example, they would retain the right to do so. The conservator’s power in that case would be “limited” to the remaining five powers.
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.