How Does A Conservatorship Work?
A conservatorship is a court proceeding that is initiated for the protection of a person who is incapable of taking care of their finances or their personal needs. This person is referred to as the conservatee.
In a conservatorship of the person, a court-appointed fiduciary, the conservator, manages the personal care of the person who cannot provide for their own personal needs related to food, clothing, medical care, shelter or their own physical health.
In a conservatorship of the estate, a court-appointed conservator manages the financial affairs of the person who is either incapable of handling their own financial affairs, or is at risk for someone taking advantage of them because of fraud or undue influence.
Since the establishment of a conservatorship shifts the responsibility of handling one’s own finances and providing for one’s own care to the conservator, and creates an inability of the conservatee to make those decisions for himself or herself, the court considers these matters very seriously. The court requires that the evidence necessary to support the imposition of a conservatorship be established by “clear and convincing evidence.” Likewise the court will review the conservatorship periodically to make sure that the continuation of the conservatorship is in the best interests of the conservatee.
The establishment of a conservatorship is very detailed and technical. All of the paperwork must be extremely accurate and sufficient to be appropriately considered by the court. Selection of legal counsel with experience in the area of conservatorships is essential to both establishing the conservatorship and for maintaining the proper records that will be necessary to submit to the court on an ongoing basis.
Mullin Law Firm in Concord and Walnut Creek, California, is recognized as one of the leading law firms in the area of conservatorships. Lawyer Ron Mullin is appointed by the court to represent conservatees when there is a question regarding the need for the conservatorship, and in cases where there is an issue of dementia. Since the court will only impose a conservatorship if it is in a person’s best interest, it is critical that experienced legal counsel be involved in the conservatorship proceedings and in the ongoing management.
Who Needs A Conservatorship?
Very often children or other loved ones realize that someone near and dear to them is having trouble managing their own finances, or is at risk of being preyed upon by unscrupulous people. Sometimes this inability presents in the form of uncontrolled purchases from TV channels or websites or collection of materials to the point of creating a fire or health hazard. Other times people at risk may be preyed upon by salespeople intent on selling goods or services, and it is clear that the at-risk person just cannot say “no.”
Dementia or other medical conditions, such as a stroke, can leave a person without the mental capacity to handle their own financial affairs or even to care for themselves. Under those conditions, it is very important for someone to step in and ask the court, through their attorney, for immediate relief. Attorneys who are familiar with the conservatorship laws and the local courts can usually obtain these temporary conservatorships within 24 hours.
Conservatorships Can Be Avoided
A conservatorship can be avoided in most instances if the proposed conservatee has established appropriate legal documents that can be used in the event of illness or incapacity.
A durable power of attorney for the management of property and personal affairs can be used to handle the finances of a person when they cannot do this for themselves. The cost is in the hundreds of dollars as opposed to the thousands of dollars necessary to deal with a conservatorship. Living trusts can also be used to manage a person’s finances if set up and funded appropriately.
Likewise, an advance health care directive can be used to allow a designated agent to make health care decisions for someone when they are incapable of doing this for themselves. Again, the cost is minimal in comparison to the cost for the establishment of a conservatorship.
However, if the proposed conservatee is acting out of control for whatever reason, the imposition of a conservatorship may be the only answer.
If a judge determines a person is impacted enough by a mental illness or developmental disability, they may name a limited conservator for the conservatee. Once named a limited conservator, a judge will provide you with the precise rights you have. These rights allow you to make decisions for the limited conservatee regarding where they live, medical decision-making power, the authority to sign legal documents on their behalf and more.
Protect Your Estate Today
Save yourself and your loved ones the agony and expense of having to go through a conservatorship or probate by having an appropriate estate plan created now.