Conservatorships in Torrance & Rancho Palos Verdes
Unfortunately you may be faced with a family member or loved one who has become incapacitated or incompetent, If your loved one doesn’t have estate planning documents currently in place, the only legal recourse may be to seek the appointment of a conservator (of the person and/or the estate) through the probate court.
WHAT IS A CONSERVATORSHIP?
Conservatorship is a legal proceeding to appoint someone (conservator) to care for the personal needs of another (conservatee) and his or her assets. Your standard conservatorship involves a family member assisting a parent with Alzheimer’s or some other form of dementia, who is unable to take care of him or herself. However, conservatorships may also be used to help a feeble person who is simply unable to protect him or herself from undue influence or fraud, and these types of conservatorships are often ancillary to legal procedures to protect an elder against elder abuse. When appointed, the conservator becomes responsible for making decisions for the conservatee when the conservatee cannot make decisions for him or herself.
WHAT IS THE PROCESS FOR A CONSERVATORSHIP?
A probate conservatorship petition is usually brought by a family member or friend of an incapacitated person. Such a conservatorship is appropriate when a person cannot take care of his or her personal needs or is substantially unable to manage his or her finances or resist fraud or undue influence.
Sometimes, the proposed conservatee has sufficient capacity to nominate a conservator, or the individual may have put a durable power of attorney in place prior to becoming incapacitated, which names the conservator of his or her choice. Otherwise, a spouse, adult child, parent, sibling or friend can volunteer to be conservator. If there is no family or friends willing or able to be appointed by the court, a professional conservator can be appointed.
A court order appointing a temporary conservator can be obtained within a week or less if there is a pressing need for protection of the proposed conservatee’s person or assets; in the absence of such pressing need, the petition for conservatorship will be scheduled, at the earliest, six weeks from the date of filing in Los Angeles County courts. In the interim, a court investigator is appointed, and usually an attorney for the proposed conservatee is also appointed, from the court’s Private Volunteer Panel (a PVP attorney). The investigator and PVP attorney work to determine whether a conservator is needed, and whether the proposed conservator is suitable. The proposed conservator will be expected to attend the hearing on the petition, in most courts. On occasions, the PVP will recommend a professional conservator instead of the petitioner. This will often happen where the proposed conservatee or other family members object to the petitioner’s appointment, and there is a valid basis for the objection. The PVP attorney’s recommendations are given considerable weight by the courts.
Once a petition is granted, it is often a couple of weeks more before the letters authorizing the conservator to act as such are obtained from the court.
A bond will most likely be required of the conservator, unless they are the spouse of the conservatee. The amount of the bond is determined by the value of the conservatee’s assets which will be subject to the court’s jurisdiction; if the conservatee’s assets are in a trust which states no bond is required of the trustees, then the bond will not have to cover those assets. Also, the bond will usually not have to cover the value of the conservatee’s residence, since a special court order would have to be obtained in order for the conservator to sell the conservatee’s residence.
Where the conservatee does not have an estate plan, a petition for substituted judgment may be brought to obtain a court order putting one in place. Where appropriate for Medi-Cal planning, an order may be obtained making an immediate gift of the conservatee’s residence to their children or others, subject to an occupancy agreement allowing the conservatee to continue living in the residence for the rest of their lives.
The court will require an inventory and appraisal identifying the conservatee’s assets and their value, followed by annual or bi-annual accountings to allow the court to periodically review the conservator’s management of the estate.
HOW TO AVOID A CONSERVATORSHIP
Conservatorship should be avoided whenever possible. They are expensive; the conservatee’s estate will ultimately bear the costs of the attorney fees both for the conservator’s attorney and the PVP, and for the fees charged by the conservator. Fortunately there are different approaches which can be taken to ensure that your family members don’t need to go to court in case you ever become incapacitated. Options can include:
- Creating a living trust, transferring assets into it, and naming a backup trustee who can take over the management of your money and property in case of incapacity.
- Creating a power of attorney to name someone as your agent to make decisions for you and manage your affairs in case of incapacity. You can create both a general power of attorney and a healthcare power of attorney so an agent can take care of all of your financial and business issues and also make choices on your medical care.
- Creating an advanced directive or living will, which details what kinds of extraordinary measures (if any) you want taken to keep you alive in various emergency situations.
If ultimately a conservatorship is required, having experienced legal counsel is incredibly important to protect the conservatee. Efficiency is important, and therefore proper strategizing by knowledgeable counsel can reduce the time and cost associated with a conservatorship proceeding, as well as prevent potential lawsuits before they start.
Call David Lee Rice, APLC, at 310-402-2844 or contact us online for more information about conservatorships.
What Sets Us Apart?
- Over 3 Decades of Experience
- Specialist in taxation through the California Board of Legal Specialization
- Certified as a specialist in elder law through the National Association of Elder Law Attorneys