Wednesday, May 16, 2012

Elder Law - Conservatorships

This brief article describes conservatorships in California. In general, a conservatorship is established over an adult, while guardianships apply to minors.

There are generally two kinds of conservatorships: over the person and over the estate. Many times, one conservatorship case includes both types.

To establish a conservatorship over the person, the court must find that the proposed conservatee is substantially unable to provide for their food, clothing and shelter. The petition to create a conservatorship is usually filed by a loved one or family member who recognizes the elder's inability to provide for these personal needs. In Riverside County, California, for example, the petition may be filed by the Public Guardian's Office when no family member or other interested person is available to assist.

A conservatorship over the person should occur only when no reasonable alternatives are available. A future article will discuss such alternatives, but these include informal assistance from loved ones and powers of attorney for health care decision making. Sometimes, an elder unquestionably needs assistance but will not voluntarily agree to accept it. Their deteriorating mental faculties prevent them from recognizing the need and they simply refuse any help.

When the court orders the establishment of a conservatorship over the person, it will appoint a conservator and grant that person the authority to make all necessary decisions to properly provide food, clothing and shelter for the conservatee. Often, these powers will also include the authority to make medical decisions.

To establish a conservatorship over the estate, the court must find that the proposed conservatee is substantially unable to make sound financial decisions or to resist fraud or undue influence. The circumstances necessary to show this condition usually involve an elder who fails to timely pay bills, open the mail, or respond to bank notices. A conservatorship over the estate can also be necessary when a perpetrator manipulates an elder and wrongfully takes money or property.

Alternatives to a conservatorship over the estate must also be explored. If the elder still possesses legal mental capacity, then a financial power of attorney can be created that provides a trustworthy agent the authority to assist with banking needs, bill payment and other financial decisions.

When the court appoints a conservator of the estate, then that person will be granted all powers necessary to marshal the elder's assets, receive income and make disbursements - all in accordance with the reasonable steps required to care for and maintain the elder's estate.

It is not necessary that the conservator live in the same county or state as the conservatee. Logistically, this would be the preferred choice. However, the court recognizes that the conservatee's family members may not live nearby but would still be the best choice to carry out the conservatorship duties on behalf of their loved one.

The court will require certain periodic reports and accountings by the conservator to make sure that all tasks are being performed for the sole benefit of the conservatee. This ensures that the conservator does not take advantage of the elder and allows the court to make recommendations when necessary.

Conservatorships are often a necessary legal procedure to assist those who can no longer sufficiently care for themselves. An elder law attorney can assist to make the process as easy to navigate as possible.

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