ATTORNEY NEWSLETTER
Rethinking the Conservatorship Model
In California and many other states, a conservatorship or guardianship is essentially the last word in deciding who has the authority to manage an elder or dependent adult’s estate. There are different varieties, some temporary, some permanent, but they generally confer complete control of finances, health, and other concerns, and are backed up by the authority of the court. The conservator, the person placed in charge by the court, is often a close relative of the conservatee, the person they are put in charge of, but they may also be a friend or professional fiduciary, if the court deems it to be necessary.
A conservatorship overrules any previous authorizations, such as a power of attorney or healthcare directive, and empowers the conservator to make changes to wills and trusts, sell property, or transfer assets. Theoretically, the conservator is obligated to act in the best interest of the conservatee, but the court lacks the resources to oversee the day-to-day actions of the conservator, and frequently does not take a thorough look at their credentials or background, to the extent that sometimes individuals with a history of elder abuse are put in a position to repeat their actions on another victim. Although a conservatorship can be contested, doing so is an expensive process that not everyone can afford.
Some elder advocates recommend that an extensive reform effort be carried out on the conservatorship process, in order to prevent acquisitive heirs from attempting to increase their share of a wealthy parent or relative’s estate. This would include limiting ex parte hearings on conservatorships, where someone can make their case to be conservator without informing other relatives or hearing another party’s side. Also, some attorneys recommend that a conservator should have to have a bond issued by a bank or financial institution, which would serve as restitution should they be found to have mismanaged the conservatee’s funds. In the event that they are unable to get a bond, it would be a strong indicator that they should not be handling the funds of other people.
Ultimately, a conservatorship is a powerful tool for preventing abusers with unlawfully signed powers of attorney or other authorizations, and, in the right hands, can protect an elder from financial and physical abuse. However, the selection of the right conservator is vital, and if the conservatee has sufficient funds, it is strongly recommended that the conservator be a professional fiduciary. This prevent abuse and potential suspicion by other relatives, as well as ensuring that the estate is looked after by someone with financial acumen.
If you or a loved one is a victim of financial elder abuse, has questions regarding a conservatorship, or is having issues with annuities, life insurance, or nursing home care, contact the Evans Law Firm at (415) 441-8669, or by email at info@evanslaw.com. Our Sonoma County estate planning attorneys have extensive experience with drafting wills and trusts, petitioning and responding to conservatorships, and in litigating against financial abuse in civil and probate court.
