What is a Conservatorship?
A conservatorship is a legal arrangement created by the court to help people who cannot care for themselves. Their caretaker is called the conservator and the person being cared for is called the conservatee. The conservator can be appointed to handle the conservatee’s personal needs, which includes healthcare decisions, financial needs, or both. A conservatorship is appropriate when the conservatee cannot take care of himself or herself because of a mental disability, disease, illness, age, or other affliction, whether temporary or permanent, which renders the person unable to handle his or her own personal, healthcare, or financial needs.
A Conservator’s Duties
Conservators owe legal duties to the conservatee to make decisions in the conservatee’s best interest. Fulfilling these duties requires the conservator to proactively investigate, research and communicate with the conservatee so that the conservator is making educated decisions. The conservator is also responsible for periodically reporting to the court and obtaining court authorization to perform certain actions. For example, a conservator must obtain the court’s advanced permission to sell the conservatee’s home, to pay his or her attorney using the conservatee’s funds, and to reimburse himself or herself for expenses advanced on behalf of the conservatee. These reporting requirements exist during the entirety of the conservatorship which may last years (until the conservatee is able to care for himself or herself, or until the conservatee passes away).
Challenges in Selecting a Conservator
Determining who to select as the conservator can be difficult because there are so many factors to consider, such as the relationship between the conservator and conservatee, the physical proximity between the two, and the proposed conservator’s financial acumen and decision-making abilities.
Loved One vs. Professional Fiduciary
A conservator can be a loved one or a licensed professional fiduciary who regularly handles making decisions for others. While a loved one might be a good option because of their familiarity with the conservatee, the loved one may not have the skills, experience, or time needed to properly care for the conservatee. For example, an elderly woman that has Alzheimer’s Disease may have two adult children available to act as her conservator. On the one hand, her son may be a convenient option because he lives with her and only works part-time. Son, however, is not financially responsible or trustworthy. On the other hand, daughter is adept at handling finances but she has little time to devote to her mother’s care needs because she has a busy job, and two young children to care for. In this type of situation, a professional fiduciary might be a good option.
Conflict of Interest
A loved one acting as conservator may also be confronted with conflicts of interest. In the example provided above, the conservator may be required to sell conservatee’s residence in order to pay for mother’s care. If son is conservator, he may be reluctant to sell the home because he lives there rent free, and does not have sufficient income to live independently. If either son or daughter is conservator, either or both may be reluctant to spend money on mom’s care, knowing that they will inherit whatever is left over. Such actions may result in conservatee not receiving adequate care, or not receiving the level of care that he or she deserves.
Sometimes the conflict may relate to religious or political beliefs instead of financial interests. For example, the conservatee’s physician may recommend a vaccination or medical procedure, like a transfusion, which may be consistent with conservatee’s beliefs but contrary to conservator’s beliefs. In that situation, the conservator may find it difficult to authorize such treatment because it is contrary to their own personal values.
Lack of Medical Knowledge
Another challenge that commonly arises with a loved one acting as conservator is making poor choices because he or she is unfamiliar with a certain disease or condition. For example, a child making decisions for a parent who has Alzheimer’s may be unaware that his or her parent may have better capacity in the morning than the evening, may wander, may be verbally abusive, may be physically aggressive, and/or may be subject to undue influence by new friends or service providers. The conservator’s lack of awareness, although innocent, may cause him or her to make decisions that are unsafe or not in conservatee’s best interest.
Family relationships can also create challenges in selecting a conservator. People typically apply for a conservatorship after a stressful event occurs, such as injury to a loved one or advancing medical condition of a loved one. The stress of the event coupled with strained family relationships can provide the basis for further arguments and division. These issues make it more difficult for the court to determine who to appoint, and may delay care needed by the conservatee.
Less Personal Care
Selecting a professional fiduciary to act as the conservator may avoid some of these issues, but may also result in less personal care. In most cases, the professional fiduciary is a stranger who has no prior relationship with the conservatee. Thus, the fiduciary does not have the benefit of knowing the conservatee’s prior habits, preferences, or relationships with others when making decisions. While the conservator can solicit input from the conservatee, obtaining accurate information may be difficult if the conservatee is speech challenged, or has lost substantial memory. It may also be more difficult for the fiduciary to communicate with the conservatee, or develop a trusting relationship with the conservatee if the conservatee does not interact well with strangers and has no long-term memory of the fiduciary to rely upon, the way that he or she would have with a loved one.
Financial Issues In Conservatorships
Issues also arise when the conservatee lacks sufficient cash and assets to pay for his or her own needs, including the attorneys’ fees and costs required to apply for a conservatorship. In these instances, it may be difficult to get the conservatee the help required because the loved one may need to spend his or her own money to pay for these expenses. That can act as a deterrent to loved ones who want to help, because some may be unwilling to pay for these expenses while others may not have the means to pay. Likewise, it would be difficult to find a professional fiduciary who would be willing to act as the conservator if the conservatee’s cash, assets, and income are insufficient to pay the conservator for the services to be provided and the level of care that the conservator believes is needed to adequately care for the conservatee.
The Solution is Proper Planning
A conservatorship usually results from the conservatee’s lack of planning. It creates emotional and financial hardship for both the conservatee and the conservatee’s loved ones. The solution is to do your estate plan, while you are able and healthy. The estate planning process will enable you to select your agents (i.e. decision makers),consider the financial means your agents will need to provide for your care, determine how to accrue the financial means to achieve the level of care you desire, and to properly document your choices so that your plan can be carried out when needed.
Bellator Law Group, APC provides comprehensive estate planning services and can also assist with conservatorship matters in California. Contact us to learn more: (619) 232-8377 and bellatorlawgroup.com.