Tuesday, August 30, 2011

Conservatorships - How To Terminate Them

California conservatorships can be a nightmare, particularly when the "conservatee" is capable of handling financial and healthcare decisions - as long as they have a little assistance. The real tragedy is that courts, lawyers and family members don't always investigate whether less restrictive alternatives are available.

A conservatorship can be terminated if sufficient evidence is presented to the court to show that less restrictive alternatives are available that will continue to protect the conservatee's best interests.

A conservatorship takes on a life of its own. The court appoints a "conservator" and grants them the authority to handle all finances, determine where the conservatee will live, and also makes healthcare decisions. It's very costly: filing fees, attorney fees, probate investigator fees, court-appointed attorney fees, conservator fees, etc.

Sometimes a conservatorship is necessary. An elder may be suffering from dementia and hasn't paid her bills on time, attended doctor appointments or purchased and cooked proper food. If no family member or friend is available to assist, then a conservatorship may be the right option to provide the care that's required.

But often, there are family members or friends available to help. If the elder is mentally capable of signing powers of attorney for financial and healthcare decisions, and can name a trustworthy person to act as "agent", then that agent would possess all of the legal authority needed to care for the elder. No court involvement would be required.

If necessary, a "professional fiduciary" can be named as the agent under a financial power of attorney. The agent can obtain a "bond" from a surety company. If the agent stole money from the elder's estate, then the surety company would reimburse the elder for any money wrongfully taken.

Powers of attorney are often execllent alternatives to the establishment of a conservatorship. Of course, the named agent must be entirely trustworthy. The authority granted to the agent is broad and sweeping. Placed into the hands of an unscrupulous agent, a financial power of attorney can become a license to steal.

But just because an elder has diminished mental capacity, that doesn't mean that a conservatorship is always necessary. Other viable options often exist and should be explored. A conservatorship should be the option of last resort.

To terminate a conservatorship, the court must be convinced that the conservatee's financial and physical well-being will be maintained at the highest possible level. Often the conservatee has diminished mental capacity but is still capable of understanding the meaning of powers of attorney for financial and healthcare decisions and is able to name a trustworthy person to be appointed as agent. T

Terminating a conservatorship will generally require the assistance of a psychologist or psychiatrist to inform the court of the conservatee's mental capacity and ability to at least understand the basic purposes of financial and healthcare powers of attorney. Often, the court can also approve the creation of a simple trust which names a bonded trustee with authority to handle all financial matters.

In conservatorship cases, one should search for other less restrictive alternatives. When they are available, then sufficient evidence can be presented to the court to prove that all of the conservatee's needs can be met without a conservatorship and that it should therefore be terminated.

Article Source: http://EzineArticles.com/4158828

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