San Diego Estate Planning Lawyer Blog
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
The subject of this case is Homer Owens, who is now deceased. Owens married his second wife, Emerald Owens, in 2002. Both spouses had adult children from their respective prior marriages. During the course of the marriage, Homer Owens suffered from dementia and Parkinson’s disease.
In 2009, Homer Owens signed a new will naming his wife as executor. He also prepared, but apparently did not sign, a power of attorney naming Emerald as his guardian or conservator, should the need arise. That same year, Emerald Owens traveled to Hawaii with her daughter, leaving her husband with two nurses and one of his children.
While in Hawaii, Emerald Owens received a call from Paul Thayer, Homer’s son-in-law and an attorney. He said that Homer and his children had decided it was in his best interests to divorce Emerald and move to Utah, where his daughter Sandra lived. Twenty minutes after receiving this news, Emerald Owens suffered a stroke.
Homer Owens filed for divorce in California and moved into a nursing home in Utah. As his condition continued to deteriorate, Douglas Thayer filed a petition in the Utah courts for appointment as Owens’ conservator. Owens appeared to consent to the appointment, and signed a power of attorney naming Thayer as his agent. Emerald Owens later contested the appointment, but the court agreed with Thayer she was disqualified from serving due to the divorce proceedings, as well as her own health issues following the stroke.
The divorce proceedings continued, although it was moved from California to Utah, and eventually Thayer, acting as Homer Owens’ conservator, signed a settlement with Emerald Owens. The parties remained legally married, but each spouse waived any claim over the property or estate of the other. Emerald Owens also withdrew her appeal of the Utah conservatorship order.
Several months later, however, Emerald Owens filed a new lawsuit in California against Thayer and her husband’s children. She claimed they had “kidnapped” her husband and forced him to initiate divorce proceedings against his will, causing her stroke and emotional distress. Both the trial court and the California Court of Appeals rejected the lawsuit, holding that the factual questions underlying her complaint were already litigated and decided during the Utah conservatorship proceeding. Under a legal principle known as “collateral estoppel,” when one court has already ruled on a particular issue, another court (outside of the appeals process) will not disturb those findings.
Acting Before It’s Too Late
It’s too late when a person has lost the capacity to make decisions for himself. That’s why it’s important you work with an experienced California estate planning attorney today who can advise you on the preparation of a power of attorney and other documents regarding the potential need for a guardian or conservator. Contact the Law Office of Scott C. Soady today if you have any questions.