CONSERVATORSHIP

Published on: March 7, 2011

What are Your Duties as the Conservator of an Estate?

In the last blog, we discussed the duties of a conservator of the person. As the conservator of the estate of an individual, you also have duties and responsibilities.

Basically the conservator of an estate acts similar to a trustee. The conservatee’s “estate” is all the money and property owned by the conservatee. The conservator must inventory all of the assets of the estate and have them appraised. The conservator must file an Inventory and Appraisal describing the property and its value. The conservator must determine what income the conservatee is receiving each month. If the conservatee has some investments, the conservator will have to evaluate each investment and determine if it is a wise investment or whether some other investment would be more advantageous for the conservator. Although you have the obligation to manage the assets, you cannot make risky investments. You also must keep the estate’s money and property separate from yours or anyone else’s.

The conservator also has to make a decision as to where the conservatee will live. It should be the least restrictive place and should be appropriate, safe, and comfortable. If the conservatee is in a residential care facility, you may have the duty of taking care of the conservatee’s home, and renting it if the conservatee is moved to another place. You also pay all the bills for housing, food, clothes, transportation, and medical care. The conservator of the estate is also the person responsible for filing taxes.

Published on: March 3, 2011

What are Your Duties as the Conservator of the Person?

by Scott C. Soady

If you have been nominated and approved by the court as the conservator of the person of another individual, you have certain duties and responsibilities.

As the conservator of the person, it will be your responsibility to see to the personal needs of the conservatee. One of these needs is the living arrangements for the conservatee. This may be the conservatee’s own home with caregivers, an assisted living facility, or a locked facility that specializes in patients who have Alzheimers or other memory issues. The conservatee has been adjudged to be incapable of taking care of himself, so it is your duty to select an environment that is safe, physically and emotionally. You also are responsible for seeing that the conservatee has clothing, food, and medical care. This may mean purchasing clothes and hygiene items for the conservatee, grocery shopping if the conservatee is living in his or her own home, and seeing that the conservatee gets to doctors’s appointments. It also can involve transporting the conservatee and seeing that the conservatee has recreational activities. If there is a separate conservator of the estate of the individual, you have to work with the conservator of the estate since that person will be approving the expenses and paying the bills.

You also have ethical obligations to the conservatee. You will have to respect the wishes of the conservatee and realize that even a conservatee has the right to make or change a will, get married, and have a lawyer. If possible, you should consult with the conservatee about decisions you are making and make efforts to promote independence. Medical treatment should be in keeping with the conservatee’s wishes if he or she is able to communicate their preferences. The court will also require that you periodically file a Level of Health Care Plan outlining where the conservatee is living, how the person’s needs are being met, and whether the environment in which the conservatee is living is the least restrictive in view of the circumstances.

Published on: February 22, 2011

Avoid Being a Victim of Fiduciary Abuse

by Scott C. Soady

A fiduciary is an individual who acts in a position of trust such as acting as a guardian of estates,conservator of estates, personal representative of estates, or as an agent under powers of attorney.

A fiduciary as a trustee of a trust has the responsibility of administering the trust as set forth in the trust document, including safeguarding the trust assets, investing assets, accounting to the beneficiaries, and distributing assets as the trust document provides.

A fiduciary can also act as a conservator of an estate of the conservatee, where they are responsible for protecting and managing the conservatee’s asset, receiving income, paying bills, and filing tax returns. The duties of a fiduciary acting under a power of attorney are similar. All are positions which require a high degree of honesty and integrity,

Published on: September 11, 2010

Alternative to Conservatorships

by Scott C. Soady

A probate conservatorship often becomes necessary when an individual cannot take care of himself or handle his own finances. A petition has to be filed in the San Diego Probate Court, usually by a family member, seeking to become a conservator of the person or the estate. The conservator of a persons makes decisions about where the conservatee will live, health care, food and recreation. A conservator of the estate is the individual handling the financial affairs of the conservatee. Establishing a conservatorship is costly, sometimes contentious, and often not necessary.

There are several ways that a conservatorship can be avoided. One way a conservatorship can be avoided is to create a living trust. When you create a revocable living trust, you designate someone to act as successor trustee of your trust if you become incapacitated. You also execute a durable power of attorney and health care documents which designate someone you trust to act as your agent in case of incapacity. Even if you don’t have a trust, you should obtain a durable power of attorney and health care directive. Young adults, newly married individuals, and anyone else that can’t afford a trust or doesn’t have the assets to warrant a trust, should at least execute these two documents. These documents prepared in advance of any incapacity, can avoid court intervention.

If the only reason a conservator is needed is for a family member to have access to social security, disability benefits, etc. a family member can ask the agency to allow them to act as a representative payee and therefore a conservatorship is not needed. Federal agencies which allow this to be done are the Social Security Administration, VA, and Dept. of Defense. You must explain why a payee representative is necessary and provide a doctor’s statement explaining the incapacity.

Published on: May 23, 2010

What is a Limited Conservatorship?

by Scott C. Soady

There are several types of conservatorships, one of which is a limited conservatorship. These types of conservatorships are set up for an individual who is developmentally disabled and unable to provide for his or her personal needs and/or financial affairs. Developmental disabilities include such conditions as autism, cerebral palsy, and mental retardation that was diagnosed before the individual’s 18th birthday.

Many disabled people can do certain things on their own and do not need a regular conservatorship. With a limited conservatorship, the Court has the authority to give the conservator some or all of the following limited powers: determining where the conservatee will live, giving or withholding of medical treatment, determining the ability of the conservatee to contract, controlling social and sexual relationships, giving or withholding of consent to marry, and making decisions about education. The limited conservator also can be granted the authority to see the conservatee’s private papers and records and manage their finances.

Limited conservators are usually the parents or siblings of the conservatee but the Court can appoint other interested persons who petition the Court. Once a conservator is appointed, he or she will take care of the conservatee’s food, shelter, clothing, and medical treatment and if appointed conservator of the estate of the conservatee, will also manage that person’s assets, collect income, and pay the bills.

Published on: November 21, 2009

Types of Conservatorships in San Diego

by Scott C. Soady

There are 3 types of probate conservatorships that can be obtained in the San Diego Probate Court. The first is the general conservatorship of a person where the Probate Court gives a responsible person (the conservator) the ability to take care of another person (the conservatee) or to manage someone’s financial affairs. With a conservatorship of the person, the conservator takes care of the conservatee’s health care, housing, food, clothing, and other personal needs. A conservatorship of the estate pays the conservatee’s bills, taxes, asssets and manages other aspects of finances.

A limited conservatorship is one that is set up for a developmentally disabled adult. If an adult with developmental disabilities is unable to care for himself or herself or their property in certain ways but not to the extent of needing a regular conservatorship, a limited conservatorship may be appropriate. The difference between a limited conservatorship and a general conservatorship is that a limited conservatorship is only available to adults with developmental disabilities. This could be something like autism, a brain injury at birth such as cerebral palsy or mental retardation, or other disability that arose before the age of 18, which is expected to continue indefinitely and constitutes a substantial handicap. The handicap could be in the area of self-care, receptive and expressive language, learning, mobility, self-direction, capacity to live independently, or economic self-sufficiency. Some of the powers that can be granted to the limited conservator are the power to decide living arrangements, the power to a sign a contract, and the power to make decisions about education or health care.

A third type of conservatorship is one under the Lanterman-Petris-Short Act for persons who are gravely disabled. “Gravely disabled”means a person, who as a result of a mental disorder or chronic addiction is unable to provide for their personal needs for food, clothing, or shelter. Usually this type of conservatorship is necessary for an individual who is seriously mentally ill or needs specialized care.

Published on: March 3, 2009

Conservatorship for Actor Peter Falk?

by Scott C. Soady

In December 2008, Peter Falk’s daughter petitioned the court in Los Angeles county to become the conservator of her father. Falk, noted for his role of Columbo on TV, has apparently been diagnosed with Alzheimer’s disease and dementia. His daughter Catherine claims her father requires full time custodial care for his health and safety and is unable to take care of his finances. The Los Angeles court appointed an attorney to evaluate Falk who has filed a report saying there is no grounds for a conservatorship. Falk’s wife of 32 years also opposes the conservatorship.

Conservatorships are probate proceedings where a judge appoints a responsible person called a conservator to care for another adult who cannot care for himself or herself or handle his or her finances. Any person who wants to be a conservator can petition the court to become the conservator. Usually it is the individual’s spouse or other relative although it can be a friend or even a state or local agency. The court will not grant a petition for conservatorship if there are other ways to meet an individual’s needs such as with a durable power of attorney, a spouse that can handle the care and finances, or a revocable living trust in place.

It will be interesting to see what the L.A. probate court does in the case of Peter Falk. Another hearing on the matter will be held soon. If you have questions about conservatorships or how to avoid them, call the experienced estate planning lawyers at Law Office of Scott C. Soady, A Professional Corporation for a complimentary consultation.

Published on: December 8, 2008

San Diego Conservatorships – Not Always the Only Alternative

by Scott C. Soady

The San Diego County Courts hear many cases where a conservatorship is sought of an individual’s estate or person. When an individual cannot take care of his or her financial or personal affairs, it may be necessary to have the probate court appoint a conservator of the estate or of the person. A conservator of the estate is responsible for handling the finances of the conservatee. The individual appointed has broad powers to manage assets, write checks, make investments, etc. A conservator of the person is an individual appointed to make decisions about the conservatee’s personal needs such as health care, residence, food, clothing, etc.

A conservatorship can be an expensive process and may not always be necessary. Before the court appoints a conservator for an individual, it must be shown that no other alternatives are available to the proposed conservatee. These alternatives are durable powers of attorney, trusts, or the voluntary acceptance of assistance.

1. A power of attorney is a written document whereby one person (the principal) appoints another ( the agent) to act on his behalf upon incapacity. Powers of attorney for finances and for health care may provide a viable alternative to a conservatorship.

Published on: November 13, 2008

Help is a Click Away!

by Scott C. Soady

If you live in San Diego, there is a lot of free information available to you on a variety of legal issues. Here are some “clicks’ that may answer many questions you have:

1. Our website at Law Office of Scott C. Soady, A Professional Corporation has many articles in the area of estate planning and divorce. Our estate planning blog has current postings as well as archived postings going back to 2002.

2. The San Diego County Clerk/Recorder’s office has information on its website about recording documents and you can also download samples of commonly used forms such as affidavits of death, grant deeds, quitclaim deeds, property tax exemption forms, and preliminary change of ownership forms. You can access information about your property tax bill or download an application to lower your propery taxes. You can also check the Grantor/Grantee index online for deeds and other recorded documents and order copies on line or pick them up at one of the offices in Kearney Mesa, San Marcos, downtown, Chula Vista, or El Cajon.

Published on: May 8, 2008

San Diego Probate Court: Britney Spears Conservatorship

by Scott C. Soady

In San Diego, California, we have two probate courts: San Diego in the Madge Bradley Courthouse and in Vista at the North County Courthouse. For your convenience, included in this article is a link to the probate court page for the San Diego Superior Court website.

In Los Angeles, California, Britney Spears case was transferred from a Commissioner to a Judge due to an objection by one of the parties in a recent article. In San Diego, this is also the procedure and if one of the parties does not agree [stipulate] to the Commissioner hearing the case then it is transferred to a Judge. In San Diego, there is a form which is normally signed by all parties prior to the case proceeding.

Our law firm of Law Office of Scott C. Soady, A Professional Corporation, LLP can assist you with your conservatorship, probate and estate planning needs. Please feel free to call or e mail our firm