CONSERVATORSHIP

Published on: February 23, 2017

What Happens When Children Manipulate a Parent’s Estate Plan?

Sibling rivalry is a natural part of childhood and growing up. When sibling rivalry continues into adulthood, it can have negative consequences for a parent’s estate planning. In some cases an adult child may even attempt to manipulate a parent’s will or trust to place his or herself at an advantage over a sibling.

Toxic Sibling Rivalry Leads to Court-Appointed Conservator

Such behavior may constitute elder abuse and require a court to step in. For example, an appeals court in Los Angeles recently upheld a probate judge’s decision to appoint a neutral third-party conservator for a woman in her 80s. The conservatorship was necessary, according to the court, due to her son and daughter’s jockeying for “position to control, manage, and ultimately inherit their mother’s assets.”

Published on: December 30, 2016

When is a California Conservatorship Necessary?

by Scott C. Soady

If you have a family member who is unable to care for him or herself, it may be necessary to seek a conservatorship for that person. A conservator is someone appointed by a probate court to manage the personal or financial affairs of another person (the conservatee). In California there are several different types of conservatorships. For example, a conservator of the estate exercises control over the conservatee’s assets and finances, while a conservator of the person makes decisions regarding the conervatee’s health care, living arrangements, and other basic needs.

Court Appoints Conservator Due to Spouse’s Irresponsibility

While California conservatorships are often associated with elderly relatives with dementia or physical disabilities, in truth a conservatee can be someone of any age and condition. For example, in a recent California case, a probate court created a conservatorship for a woman in her early 30s due, among other things, her ongoing substance abuse problems. Although the woman is married, the court named her aunt as conservator.

Published on: October 27, 2016

Can “Undue Influence” Lead to a Conservatorship?

by Scott C. Soady

A conservatorship is a legal last resort for someone who is unable to properly provide for his or her personal needs or manage his or her finances. With proper estate planning, a person can anticipate such contingencies by signing a power of attorney or even creating a trust. Still, there may be cases in which a court determines such documents are invalid due to a person’s deteriorated mental state or the undue influence of others.

Court Rejects Stepdaughter’s Petition for Conservatorship Over 101-Year-Old Stepfather

A recent case from here in San Diego illustrates the problems that can arise when dealing with elderly relatives and estate planning. This case is just an example and should not be viewed as a definitive statement of California law on estate planning or conservatorships.

Published on: October 20, 2016

How a Conservatorship Can Protect Your Assets

by Scott C. Soady

A conservatorship is a court-ordered guardian who takes charge of the financial or personal affairs of an individual if he or she is unable to care for him or herself. A conservatorship is often necessary when a disabled adult (called a “conservatee”) does not have a proper estate plan—i.e., he or she has not signed a power of attorney designating an agent to act on his or her behalf. In some cases, a California court will name a “public guardian” to serve as conservator if nobody else is qualified and available.

Court Sides With Conservator Over Lender in Property Sale Dispute

A critical function of a conservator or agent is protecting the assets of the disabled adult. Here is an illustration from a recent California case. This is only an example and should not be construed as a complete statement of California law on the subject.

Published on: July 8, 2016

Can a Court Force Me into a Conservatorship if I Have a Mental Disability?

by Scott C. Soady

A conservatorship exists whenever a California probate court determines that a person is not capable of taking care of him or herself or managing his or her finances. In the case of an individual who suffers from a mental disorder, a court may order what is known as an LPS conservatorship if there is sufficient evidence that the person is “gravely disabled,” and “unable to provide for his or her basic personal needs for food, clothing, or shelter.” But merely having a mental illness does not, in an and of itself, justify imposing a conservatorship against a person’s will.

Court Reverses “Close Call” Conservatorship Order

A California appeals court recently addressed the type of evidence necessary to create an LPS conservatorship for an individual with a mental disorder. The subject of this case is a man suffering from schizophrenia. He had been hospitalized multiple times over the years and has been required to take psychiatric medications since he was a child.

Published on: May 20, 2016

Conservatorships Often Lead to Intra-Family Litigation

by Scott C. Soady

A conservatorship is designed to protect the health and finances of a person who is no longer capable of acting for themselves. A conservator is someone appointed by a California probate court to oversee the disabled person’s estate or person. Once appointed, the conservator is accountable to the court, and a judge may issue additional orders to ensure the conservatorship is handled properly.

Judge Erred in Ordering Premature Division of Couple’s Community Property

Judges are not always right. In a recent case from Santa Ana, a California appeals court overruled a probate court’s order against the spouse of a man under a conservatorship. The probate judge said the spouse disobeyed an order related to the conservatorship.

Published on: March 3, 2016

California Conservators May Not Unilaterally Cut Off Family’s Access

by Scott C. Soady

In California, like all states, a probate court may appoint a conservator to act on behalf of a people who are unable to care for themselves or their property. Once appointed, a conservator has broad power to provide for the “care, custody, control, and education” of the person under the conservatorship (the conservatee). But the California legislature recently clarified the conservator’s powers, and the conservatee’s rights, in one important area.

Legislature Clarifies Right to Visitation

The legislature was concerned that conservators may try to cut off a conservatee’s access to family or other loved ones. In a report, a California Assembly committee noted that as “divorce and remarriage become more prevalent in today’s society, there is a greater possibility of conflicts between a second spouse and children from a first marriage.” In such cases, a second spouse who is named conservator of the other spouse may ban the children from visiting or communicating with their parent.

Published on: January 31, 2015

How a Conservatorship Can Protect You (and Your Assets)

by Scott C. Soady

During your lifetime, it may be necessary for a court to appoint a conservator to oversee your affairs when you are no longer able to do so. A conservatorship can apply to both a person-i.e., someone to make healthcare decisions for you-and to the property contained within your estate. While you can nominate a conservator as part of your estate plan, the final decision rests with a California probate court. You can also sign a power of attorney granting another person control over your financial affairs, without the need for a separate court order.

California courts will look at whether a potential conservator exercised “undue influence” over a person. For example, an unscrupulous individual might use a conservatorship as a means of using an elderly relative’s assets for their personal gain. Similarly, other persons or groups with an interest in a person’s estate might use the conservatorship process to manipulate the situation for their own advantage.

In re Conservatorship of Person and Estate of Melanson

Published on: September 5, 2014

California May Adopt Uniform Law on Conservatorships

by Scott C. Soady

California is poised to join the majority of its sister states in adopting a uniform law designed to promote interstate cooperation on the subject of adult conservatorship proceedings. In May, the California Senate passed SB-940, a bill that would enact the Adult Guardianship and Protective Proceedings Jurisdiction Act, a model law created by the National Conference of Commissioners on Uniform State Laws. A California Assembly committee approved the Senate bill on July 2, and it is likely to pass the full assembly sometime this month.

Making Interstate Conservatorships Easier

A conservatorship proceeding may be necessary when an adult cannot manage his or her own financial, personal or health care decisions. For example, an adult child might petition a California court to be named conservator of her elderly father’s person or estate because he suffers from dementia. In California, a probate court supervises such conservatorship proceedings.

Published on: March 28, 2014

Conservatorship Disputes Can Divide Families

by Scott C. Soady

In dealing with an elderly person who suffers from dementia or who otherwise loses the capacity to make decisions, it may be necessary to create a conservatorship. This occurs when a probate court appoints someone to act as the disabled person’s agent in making legal, financial and healthcare decisions. Careful estate planning should include a power of attorney that nominates a guardian or conservator if either becomes necessary.

Unfortunately, disputes may arise between family members over how to handle a conservatorship. A recent California case-which actually involves courts in two different states-helps illustrate the problems than can arise from a conservatorship. This case is discussed here for informational purposes only, and should not be construed as an authoritative statement of California law on the subject.

Owens v. Thayer