San Diego Estate Planning Lawyer Blog
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
In October 2007, a California probate court appointed Kenneth Seastrom to serve as conservator of the person for his longtime friend, Wardell Johnston, Jr. Johnston was in his late 80s and suffering from dementia. The court decided to name another person, Kim Schwarcz, as conservator of Johnston’s estate. Schwarcz is a professional fiduciary, someone who specializes in conservatorship estate management.
Under Seastrom’s direction, Johnston moved out of his longtime home into a nursing facility sometime in 2007. The following year, Schwarcz, as conservator for Johnston’s property, asked the probate court for permission to sell the house. She said the property was in bad shape and would otherwise require costly repairs. The court denied Schwarcz’s request and she then proceeded with the repairs.
By 2010, Schwarcz had returned to court asking for instructions on whether to sell or lease the house. Seastrom, acting as conservator of Johnston’s person, opposed sale because it was still his belief that Johnston would eventually return to live in his house. The probate court held hearings in 2011 and ultimately concluded Johnston would be better off remaining in the nursing facility. In October 2011, the court issued a separate order permitting Schwarcz to sell the house.
Seastrom appealed the probate court’s decision. A three-judge panel of the California Court of Appeals in San Francisco dismissed the appeal. The panel said Seastrom lacked standing to even bring an appeal. As guardian of Johnston’s person, Seastrom’s role was to oversee his care and custody–deciding where he lives, what doctors will treat him, et cetera–while Schwarcz’s job as guardian of the estate was to manage Johnston’s property and finances. Once the probate court determined Johnston could no longer live at home, the house was simply another piece of property for Schwarcz to manage–or sell, in this case–as she saw fit. In any case, Seastrom was not an “interested party” to the house sale, and therefore could not object in court.
Avoiding Conservatorships Altogether
As noted above, conservatorships can be avoided altogether through responsible estate planning. A general durable power of attorney allows you to name an agent for the management of your estate, while an advance health care directive can appoint an agent to make decisions regarding your person and medical care. You can opt to name one person to fulfill all of these roles, avoiding the type of conflict seen in the Johnston case. Or you might adopt a similar system of appointing a professional fiduciary to handle your finances while assigning personal care decisions to a family member or close friend.
Either way, it’s always best for you–not a probate judge–to make decisions about who should act in your name. If you’d like to work with an experienced San Diego conservatorship attorney who can advise you on the best way to avoid a messy conservatorship scenario, contact the Law Offices of Scott C. Soady today at 1-877-435-7411.