CONSERVATORSHIP

Published on: January 31, 2014

Distinguishing Between a Conservatorship and a Probate Estate

A conservatorship is a court-ordered relationship whereby one adult assumes responsibility for the finances and/or personal care of another adult. In California, conservatorships fall under the same law as probate estates, that is, the estates of deceased individuals. Indeed, the same branch of California’s superior courts hear probate and conservatorship matters.

Once a person under a conservatorship dies, the conservatorship also terminates, and a separate probate estate must be established. This may lead to some confusion, as a recent decision by the California Court of Appeals illustrates. This case is discussed here for informational purposes only and should not be treated as a comprehensive statement of California law on the subject.

Borden v. Dise

Published on: December 30, 2013

Disney Heiress Case Spotlights the Importance of Conservatorships

by Scott C. Soady

Estate planning is not limited to providing for your affairs after your death. Unexpected health problems may leave you unable to manage your affairs during your lifetime. In such cases, a court may name a conservator for your person or estate unless you have provided for such appointments in advance through a document such as a durable power of attorney.

A properly executed conservatorship can protect your interests from unscrupulous relatives or other third parties who might try and take advantage of your situation. A recent California case illustrates how the law governing conservatorships can apply in a given situation. In this particular case, a woman voluntarily asked a court to appoint a conservator, then later opposed attempts by hostile family members to keep the conservatorship going.

Lund v. Lund

Published on: August 28, 2013

California Appeals Court Addresses Forced Sterilization of Woman Under Conservatorship

by Scott C. Soady

Conservatorships are often thought of in the context of a person caring for an elderly parent who is no longer capable of making his or her own decisions. But conservatorships can also involve a parent caring for a physically or developmentally disabled adult child. These situations raise complex legal questions regarding the limits of personal liberty, as proven by a July 31 decision of the California 4th District Court of Appeal in Santa Ana.

The unnamed appellant in this case is a 25-year-old developmentally disabled woman. Upon reaching her 18th birthday, a probate judge appointed the woman’s mother as her “limited conservator,” authorizing the mother to direct her daughter’s medical care. For many years, the daughter has suffered from “severe and debilitating migraine headaches” related to an irregular menstrual cycle. After a number of treatments failed to treat the migraines, an obstetrician-gynecologist recommended the daughter undergo a total hysterectomy.

Although the daughter indicated she approved of the surgery, legally should could not give “informed consent,” so her mother, as conservator, had to petition the probate court for permission to proceed with the hysterectomy. The court appointed a public defender to represent the daughter’s legal interests.

Published on: August 16, 2013

Who Will Act as My Conservator?

by Scott C. Soady

When an elderly parent becomes unable to make his or her own decisions regarding finances and medical care, an adult child or other person must assume the role of conservator. Through proper estate planning, a person can nominate, in advance, a conservator to act should the need arise. In the absence of such planning, however, it often falls to a probate judge to determine which person will act in the conservatee’s best interests.

Under California law, if a person does not nominate his or her own conservator, the probate court has the “sole discretion” to appoint one. The court must give preference, in descending order, to the person’s (1) spouse or domestic partner, (2) adult child, (3) parent, (4) sibling, or (5) any other person who offers to serve as conservator. When two or more people seek to act as a conservator, the court will follow the preference order only if the judge determines each petitioner is “equally qualified.”

Sibling Disagreement Leads to Outside Intervention

Published on: July 19, 2013

How Making an Estate Plan Can Prove Your Mental Competency

by Scott C. Soady

The purpose of estate planning is to prepare for a time when you can no longer make decisions for yourself, either because of death or incapacity. And while ascertaining a person’s death is usually a straightforward task, determining incapacity-more precisely, the lack of capacity to make certain types of decisions-is often complicated. California law establishes varying competency thresholds for different legal decisions, as illustrated by a recent decision from a state court of appeals panel in Santa Ana. This case is only used for illustrative purpose and cannot be relied on as a statement of the law.

The case itself involved divorce, not estate planning. Lyle B. Greenway wanted to end his 48-year marriage to Joann Greenway. In 2009, Lyle Greenway moved out of his marital home and into a retirement community. The following year, he filed a petition for legal separation, citing irreconcilable differences with his wife. Joann Greenway opposed the petition.

Lyle Greenway was recovering from an operation and convalescing in a nursing home in mid-2010. Because of this, the couple agreed to have their case heard by Thomas J. Murphy, a former San Diego County Superior Court judge who now works for JARS, an alternative dispute resolution company. Judge Murphy performed essentially the same function as a trial court in this case.

Published on: June 11, 2013

The Problem of Dueling Conservators

by Scott C. Soady

When an adult can no longer manage his or her own affairs, a conservatorship may be necessary. If your California estate planning does not include a general durable power of attorney or advance healthcare directive naming agents to act in the event of your incapacity, a probate court may name an agent called a conservator to act for you. In some cases, a court may name two separate conservators–one for your person and another for your property or estate.

Conflicts can arise when multiple conservators disagree over what’s in the best interest of the conservatee. The California Court of Appeals recently had to settle one such dispute, which is discussed here purely for informational and illustrative purposes and should not be construed as a statement of the law. The argument arose over what to do with the property of an elderly man who was longer living at home.

Conservator of the Estate vs. Conservator of the Person

Published on: March 4, 2013

The Dangers of Conservatorships

by Scott C. Soady

When an elderly parent becomes unable to care for himself, there may arise serious disagreements among children and other family members over the best course of action. Careful estate planning on the parent’s part before he or she becomes unable to express his wishes is always best. Failure to plan for such circumstances can lead to lengthy, costly and emotionally divisive litigation.

California law provides two main avenues for probate court intervention in the affairs of adults who no longer have the capacity to make decisions. The first thing a court can do is name a conservator of the estate, someone to oversee the person’s financial affairs, pay their bills, sell their property, and so forth. A related but separate act is the appointment of a conservator of the person, who oversees the living conditions and medical care of the person. Both conservatorships may be combined in a single person but require separate legal proceedings.

Conservatorships Don’t Always Settle Issues of Care

Published on: May 31, 2011

Walt Disney’s Family Feud Show Common Issues in Estate Planning

by Scott C. Soady

Currently there is a feud going on involving two of Walt Disney’s grandchildren and their share of the huge Disney fortune. Walt Disney died in 1966 leaving two daughters and 10 grandchildren. One of his daughters Sharon Disney had married and then divorced a real estate developer named Bill Lund who located and assisted in the purchase of the land which became the Disney World site. Sharon and Bill had two children Michelle and Brad. Sharon created an estate plan to leave her share of the Disney fortune to her two children from her marriage to Bill and one child from a previous relationship. She made her ex-husband as one of the four co-trustees of the childrens’ trusts. The trustees were to determine whether the three children were competent to receive the monetary distributions at ages 35, 40, and 45 and the yearly payments of income. The disbursements were approximately $20 million per child every five years.

To complicate everything, Sharon then died and her ex-husband remarried. Then in 2009 Michelle, Sharon and Bills’ daughter, suffered an aneurysm and her father began caring for her as the trustee of her trust. Family members sued in court to remove Bill claiming that he was trying to isolate her from family and friends and take over her estate. As time went on, the other co-trustees of Michelle’s trust also filed petitions in the probate court to remove Bill as a co-trustee. Eventually Bill agreed to resign as trustee in exchange for significant yearly payments.

The drama continues over the Disney fortune because Brad, the son of Sharon, is developmentally disabled and needs a conservator to manage his affairs. Michelle, his sister, does not believe that her father Bill and his new wife should be managing Brad’s estate. The huge attorneys fees are draining the estate.

Published on: May 3, 2011

Contested Conservatorships and Guardianships

by Scott C. Soady

Petitioning the probate court to be appointed the conservator of someone’s person or estate may be necessary when an individual has become legally incapable of taking care of himself or unable to handle his finances, and has not created a durable power of attorney for finances. The majority of the time, conservatorships are not contested and granted upon a showing to the court that the proposed conservatee is incapacitated and unable to manage their personal or financial affairs. Sometimes, however, conservatorships are contested.

Family members may disagree as to who should be the conservator. Sometimes the proposed conservatee has a lawyer and wants to contest the granting of the conservatorship. Other times the contest arises simply because of miscommunication among family members who may not understand what it means for an individual to be conserved.

Contested guardianships are similar to conservatorships in the sense that the majority of the time they are not contested. Like conservatorships, family members can fight about who would be the best guardian for minors who have lost their parents or minors whose parents cannot take care of them. If there is no agreement, then a trial may become necessary before a probate judge.

Published on: March 27, 2011

April 2 is National Autism Day

by Scott C. Soady

Coming up next week is National Autism Day which was established to raise awareness about autism. Wear blue to show your support.

The incidence of autism is on the rise with approximately 1 in 110 children in the United States being diagnosed with the disease, according to the Center for Disease Control and Prevention. Autism is a developmental disorder which affects social and communication skills and sometimes motor and language skills.

From an estate planning perspective, here are come things to consider if you have a child with autism. Many people with autism receive government benefits. Failure to have a will or trust that incorporates a special needs trust or a stand alone special needs trust can jeopardize your child’s ability to receive government benefits when you die.