Control over another person’s life and money has been in the news recently and not in a good way. Conservatorships made a lot of headlines a few months ago, when singer Britney Spears contested her father’s 13-year control of her finances. Kiplinger’s recent article entitled “What to Do When a Family Member Needs a Guardian” says that even Netflix portrays these legal arrangements as little more than an invitation for fraud in its 2021 movie, “I Care a Lot,” which starred Rosamund Pike as a professional guardian who cheats her clients out of their life savings.
While the rules vary by state, generally when someone (a petitioner) files a petition with the court to seek guardianship of an adult (for adults in California, it is called a conservatorship), a judge holds a hearing to determine whether that person meets the state’s standard for needing a conservator. A person requiring conservatorship can lose important rights, including the ability to marry, travel, make certain medical decisions, possess firearms or even vote. That is why courts may be reluctant to permit an all-encompassing loss of rights. It is common for a court to limit a Conservator’s authority, so that it only addresses a specific area with which the person needs help—like managing bills and maintaining a home. The least intrusive option is generally preferable.
An examination by a physician is usually required to determine if the individual suffers from a medical condition that impairs judgment. However, sometimes the need for aconservator is clear — for instance, a person who has suffered a stroke and is in a coma. Dementia is the most common reason why an adult might be declared incapacitated. Note that depression can be mistaken for dementia. Delirium, which can cause a person to be confused and unaware of their environment, is another common cause.
When a conservator is needed, courts typically appoint a family member. However, sometimes there is no one appropriate, so the court may appoint a public guardian paid by the state or occasionally a professional guardian paid with private funds. There is a priority list of appointees in the California probate code so if you want a specific person, it is best that you prepare an Advanced Health Care Directive, Power of Attorney, and Trust to name specific people to administer your estate and person if you are incapacitated.
Note that the conservator’s job is to protect your loved one, not serve the family’s interests. As a result, family dynamics can be stressful because relatives believe the conservator is spending their inheritance.
A conservator must keep clear records as to how any money is spent and discuss any reimbursement for expenses, such as the time and mileage for transporting the ward to appointments, in advance.
Being a conservator should be seen as a professional job. Depending on the situation and how complicated it is, it can be a great deal of work.
One of the main goals of our law practice is to help families like your plan for safe, problem free, and successful transfer of assets to the next generation. Call our office today to schedule a time for us to review your estate plan and identify the best strategies for you and your family to ensure your legacy of love and financial security. Our office is located in Santa Ana, CA but we serve all of California including Irvine, Orange, Tustin, Newport Beach, and Anaheim.
Reference: Kiplinger (Jan. 25, 2022) “What to Do When a Family Member Needs a Guardian”