Knowing when a conservatorship is necessary is complicated enough. When family members disagree about the care of a parent or relative, obtaining a conservatorship can become even more complex.
So, how do you know when you need a conservatorship - and what do you do if family members disagree?
As an attorney who specializes in Elder Law in the San Francisco East Bay, I have had significant experience with both contested and uncontested conservatorship matters.
Most often, a conservatorship is needed when a person no longer has the mental capacity to sign legal documents, and they do not have a Power of Attorney. There are two kinds of conservatorships - a conservatorship of the person, and a conservatorship of the estate. Having a conservatorship over an individual means having the legal right to make decisions on that person's behalf.
When an individual has capacity (i.e. no mental disability or dementia), they can execute a power of attorney.
When is a Conservatorship Necessary?
A conservatorship is necessary for those individuals who have neither a power of attorney or healthcare directive, and have lost the ability to make informed decisions and/or care for themselves. A conservatorship may also be necessary for other reasons, such as an invalid or fraudulent power of attorney document.
How do you know if a family member needs to be under conservatorship, and what is the legal process for obtaining one in California?
What if your family does not agree on the necessity of a conservatorship, or who will be conservator?
In this article, I examine a case recently brought to me by a friend and colleague.
This month, a dear friend and colleague named Renee came to me with a situation which I have unfortunately seen all too frequently. His dad had been suffering with dementia, and was struggling to care for himself. Furthermore, his father was having difficulty coming to terms with his Alzheimer's diagnosis. Renee was desperate to help his father get the medical care he needed, and called to ask me about obtaining a medical power of attorney.
In addition, my Renee's brother opposed the idea of trying to force their father to do anything against his will.
I informed Renee that because his father had been diagnosed with dementia, it was unlikely he would be able to have his father sign a medical power of attorney. With no prior healthcare directive (CA medical power of attorney) along with a diagnosis of Alzheimer's, a Conservatorship would be necessary.
The problem that Renee faced is that one cannot sign a health care directive for anyone else. Under California law, only the principal, or person giving up rights, can appoint an agent to act on their behalf. Forging a signature in another's behalf, or having a person with a diagnosis of dementia execute a legal document can have severe and costly legal ramifications.
Despite the fact that his father would not likely be in favor of a conservatorship, and his brother opposed the idea as well, if Renee wished his father to get the care he needed, he would have to go to court.
Even in the face of opposition, the court will grant a conservatorship if significant evidence of its necessity can be demonstrated.
A conservatorship is essentially a court process wherein the court appoints an agent to act on behalf of the principal, or person who needs help.
I recommended Renee petition the court for a Conservatorship of the Person, which allows an appointed agent to make medical decisions. A Conservatorship of the Estate grants someone power to manage the financial affairs of another. For Renee, this was secondary.
How long does it take to establish a Conservatorship?
Renee's father was already ill and in need of round the clock care. As such, time was of the essence and we would need to act quickly. For these types of situations, the court can petition the court for an Emergency Conservatorship. There are two types of these conservatorships-- the general conservatorship and the emergency conservatorship. An emergency conservatorship takes 5 court days notice. In other words, you can file a petition for the conservatorship, mail copies of the documents to all legally required persons, and and the court will set a hearing on the matter within 5 days.
What do you do if the Conservatorship is Contested?
Legally, Renee would be required to notice both his brother and his father that he was petitioning for a conservatorship. As such, Renee wanted to know what would happen if his brother wanted to fight him on the issue. This is where it can get complicated. There are a few different issues here. One is that the court is likely to appoint an attorney to represent your father's interest. That attorney will present a recommendation to the court. Secondly, if family members are not in agreement, the court might look to a neutral third party. If there are multiple family members fighting and the court is concerned about the impact this will have on the care of the elder, they might ask for a neutral professional to manage the elder's care in the short term. This will allow an opportunity for family members to litigate the matter or come to an agreement. In the meantime, however, the care of the elder will be seen to by a professional care manager.
In California, professional care managers are called professional fiduciaries, and are licensed by the state. I work with them all the time. In Renee's situation, asking for a professional fiduciary to be appointed right off the bat is likely his best bet to obtain a temporary conservatorship. Even if the court did appoint Renee as Temporary Conservator of his father's medical affairs, he may have a difficult time dealing with his brother. Each situation is unique, so I asked Renee if he believed his brother would further pursue the situation once a conservator was appointed.
Yes, was his firm answer. He knew his brother would continue to fight him. Unfortunately, this is the case in many families, and animosity that exists is not resolved by the initial court order. Should the court decide to choose Renee, it may make the animosity between the brothers worse, as his brother would likely feel hurt. On the other hand, if both of them can agree on a neutral third party to administer care while they work out their issues, this may be in everyone's best interest going forward.
In short, when someone wants to retain me to assist them in a situation similar to Renee's, I typically recommend they seek a temporary conservatorship using a neutral third party in the short term. From there, an attorney can be put in place to represent the conservatee, to ensure that whatever is occurring is in the conservatee's best interest, and their voice is being heard. This also gives family members a chance to either back away from the situation, or come to a resolution regarding the care of the elder going forward.
Who Pays the Costs associated with a Conservatorship?
Who pays for my attorney? Who pays for my father's attorney? What about the professional fiduciary?
These are all important questions, as the cost of a conservatorship can add up. The simple answer is that if the conservatee, or family member needing help, has funds, these funds will be used to pay for all costs. If they do not, the county can pay for their costs. The issue is that if the petitioner (Renee in this case) has an attorney, other family members have attorneys, the conservatee has an attorney and the fiduciary has an attorney, and they are all billing at a few hundred dollars an hour - that can mean that the estate dwindles quickly. This has the benefit of inspiring people to really focus on resolving their issues, and avoiding litigation so that the money goes to the care of the father, and not to attorneys.
For questions about Conservatorships, or to schedule your free 30 minute consultation, call 925-322-1763.