In this article, you can discover…
- How power of attorney differs from conservatorship.
- The impact of a conservator on your legal rights and freedom.
- Whether it is possible for you to contest conservatorship in California.
What Is The Difference Between A Power Of Attorney And A Conservatorship?
If estate planning has been done ahead of time, you most likely will have assigned an agent under power of attorney, a medical agent, and a trustee for your trust (if you have one). Alternatively, there are two types of conservatorships you could end up with: conservatorship of the estate and conservatorship of the person. Entering the conservatorship process generally means that you failed to plan ahead.
Planning ahead will provide you with control over who will be your agent, who can decide whether or not you’re incapacitated, and instructions for how to follow your wishes. Additionally, conservatorships are an expensive, publicly invasive process that can be avoided altogether if the proper plans are made in advance.
How Do The Responsibilities Of A Conservator Differ From Those Of An Executor?
A conservator generally has a lot of statutory responsibilities, with the conservator handbook in California clocking in at a whopping 318 pages of information outlining what to expect. The process can be far from simple, as the courts want to be sure that a conservator is appointed who you can trust to work in your best interests when you can no longer make decisions for yourself. The handbook is so expensive and extensive because of the many parameters associated with a conservatorship in California.
If we are talking about somebody who is parallel to a conservator that you plan for in advance, we are talking about an agent. Agents will act in your best interest as a fiduciary, consistent with the powers you have assigned and the directions you have given. Their role is to act in your best interest, and they cannot abuse their power for their own self-interest.
When you complete a power of attorney or an advanced healthcare directive in advance, you are able to control the scope of authority that is given to your designated parties. If you are appointing family members, which many do under a power of attorney or a trust, you can include an exculpation clause. This clause stipulates that if your family member is doing a good job and acting in good faith while making decisions on your behalf, they are not going to be held personally liable for any of their actions.
How Does The Role Of A Conservator Affect My Legal Rights And Decision-Making Power?
There are a number of statutory powers involved with the role of a conservator, and there is also the potential to request a grant of independent powers if there are specific additional authorities that are required for your situation. The court can narrow down the powers that are granted differently from case to case, but you will immediately be considered incapacitated in one or more areas once you have appointed a conservator and been deemed a conservatee. If you are considered incapacitated, you generally will be unable to make financial and/or medical decisions for yourself.
It’s not uncommon to encounter cases where someone struggles with something like dementia that allows them a small level of capacity. On a given day, they may feel that they have limited capacity, only to wake up on another day with no capacity whatsoever. From a legal standpoint, since there’s no way to predict “good” days and “bad” days, you will be considered incapacitated as long as you are in a conservatorship scenario. This means that no provisions will be made to allow you capacity under your conservatorship, even on “good” days.
How Long Will The Process Of Establishing A Conservatorship Take?
Despite the courts in California being extremely backed up, they will prioritize a conservatorship because your life will be on hold until a conservator is appointed to make decisions for you. The process generally only takes one to two months, but this can be an excruciating period of time to wait while your family is panicking about your well-being. Establishing a conservator is often quicker than many other court proceedings, but the extreme stress on your family can be very intense and make for a very long two months.
In order to get started, you will need to file a petition with a lot of information. This is where things can start to get invasive, as you will need to provide personal medical information and other details that will be used to justify the fact that you need a conservator. The court will then send out an investigator to assess your case, which can be rather invasive and may require you to have your own legal counsel.
Next, there will be a hearing and an appointment of a conservator. The process usually lasts one to two months, but there’s always a chance of ongoing involvement from the court as new developments arise in your case that require additional powers or an extension of authority. Depending on the scope of your circumstances, it is possible that court involvement could extend the timeline of the case.
Attorney Rebecca Sommer is a seasoned lawyer based in Anaheim, CA who has helped countless clients just like you navigate the intricacies of incapacity planning. With a seasoned history in estate planning law, Rebecca is prepared to assist you in planning for incapacity so that you can keep your affairs in order even in the worst case.
Still have questions? Ready to get started? Contact The Law Office Of Rebecca Sommer today to schedule a free initial consultation.
Can Conservatorship Be Contested To Protect My Estate Plan?
What generally comes to mind is the “Free Britney Spears” movement, which shows that the conservatee or proposed conservatee can contest the conservatorship the same way that anyone else can. As the person who is determined to be incapacitated, you have the right to argue that you do not need a conservatorship put over you. This is part of the reason why the process is so extensive: the court is looking for proof that you are unable to make your own decisions.
To protect yourself from the risk of having your estate taken advantage of by a conservator, plan ahead and appoint someone you trust to this position. Selecting a conservator ahead of time while you are still competent helps you to ensure that your conservator will be someone that you can trust to take care of you. These documents can be changed at any time and will help dictate the terms of decisions that can be made on your behalf.
With this protection in place, you can save your estate from the expense and hassle of Conservatorship, especially because your costs will be far higher if your case is contested and the court needs to review even more information than if it is uncontested. There are papers that need to be filed and possibly responded to by the person looking to get a conservatorship for you. This can ultimately make things far more expensive if there is any kind of contest.
What Are Common Dilemmas Faced By Families Considering Conservatorship?
One of the most common considerations that families face is whether or not a conservatorship is worth it for what could be a temporary condition. If a doctor says that there is a 65% chance of recovering mental capacity in several months, loved ones may try to argue about whether a conservative is worth it. This can be a very difficult decision to make, as it is hard to say whether or not conditions will improve and competence will be reached quickly enough that a conservatorship will not be necessary.
Timing can also play an enormous role—for example, having no one to file your taxes will mean that you need to get a conservatorship or face potential penalties and interest imposed by the IRS. You can see how a family can struggle with the concept of going through the expense and complexity of the conservatorship process only for the purpose of filing your taxes!
The primary considerations in a conservatorship are generally things such as how to begin the process, where the money will come from, and who will act as the conservator. Every one of these decisions can be fraught with family conflict as loved ones are trying to make the best decision they can and emotions may be running high.
How We’ll Guide You And Your Family Through Difficult Decisions
The first thing we do is establish your goals and get a clear idea of what you’re trying to accomplish. Once you have explained the scope of your situation, we can take a step back and evaluate what would be the best course of action. If you are planning ahead, we can help you craft essential legal estate planning documents to ensure your wishes are protected and minimize any potential for court involvement.
For families already dealing with incapacity, we always start by reviewing all relevant documents and seeing if there are any options to avoid court involvement. Depending on your situation, it is possible that we can accomplish enough without court involvement to make the decision more straightforward and less stressful.
Our role as your legal representation is to listen to your goals and help you figure out the most effective way to reach them.
Still Have Questions? Ready To Get Started?
For more information on Incapacity Planning In California, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (657) 571-1241 today.
Attorney Rebecca Sommer is a seasoned lawyer based in Anaheim, CA who has helped countless clients just like you navigate the intricacies of incapacity planning. With a seasoned history in estate planning law, Rebecca is prepared to assist you in planning for incapacity so that you can keep your affairs in order even in the worst case.
Still have questions? Ready to get started? Contact The Law Office Of Rebecca Sommer today to schedule a free initial consultation.
