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Featured Article
The Ultimate Indignity
A Conservatorship Proceeding
By Susan B. Geffen
Here is a portion of an email that I recently received.
"I wish you would write [a] article about Conservators gone bad and how the courts handle this issue and not in favor of the family.
I paid thousands upon thousands of dollars to have an attorney misrepresent my cases in Probate and Conservatorship issues. I had to hire another attorney that seems not to be able to undo these issues, in fact they are escalating. I have watched my mother be abused by the caregivers the conservator hires to care for her and her assets depleted by a judge that seems to be bias.
I am sure if you also write an article about this situation there will be many people that will relate to this issue as well and hopefully come out of the wood work and proceed with beneficial changes.
Hopefully relieving the plight and changes will occur.
It seems hopeless at this time and there is no place to turn or get any justice whatsoever. It seems to be in the judge's hands and they seem to favor the lawyers and conservators instead of the family members."
The woman who sent me this email is clearly frustrated. I as an attorney feel her pain. She is right. I do not know of the particular circumstances that thrust her family into a conservatorship proceeding, but as I always say, being prepared will help you avoid this in most cases.
These proceedings result in massive loss of rights and heartbreaking indignities. They can also bankrupt elders and deplete the inheritance that parents desire for their children as the conservator must continually return to court for approval of certain transactions, which require hearings and additional fees and can create delays in completing the transactions.
For those of you who do not know what a conservatorship is, let me explain.
In California, an interested person can petition the court for orders that allow a conservator, a person who steps into the shoes of the person over whom a conservatorship is sought, to make either health care decisions or financial decisions or both over the proposed conservatee.
Why would this happen? If an individual has no agent for health care and he/she becomes incapacitated no one will be able to advocate on their behalf without an order from the court. No one will be able to access funds to pay for caregivers, insurance premiums, change insurance, speak with governmental agencies, etc. The mechanism to get an order from the court is by filing a petition for conservatorship.
However, in some instances even if you have powers of attorney for finances in place, a conservatorship is still necessary. For example, if the agent has renounced his power or if the court sets the power of attorney aside (due to allegations of mismanagement) the court can appoint a conservator. Typically, the agent for healthcare is not displaced.
When I counsel a family, I explain the financial risks and the risks of alienating a parent. There are positive aspects of a conservatorship; it offers more protection against abuse of the conservatee than other devices because the court supervises the conservator. Also, the conservator must first file with the court an inventory listing all the conservatee's property, and later, accountings that reflect all transactions involving the conservatee's assets. Finally, a conservatorship can be helpful as a structured mechanism for managing an incapacitated person's affairs when no other mechanism is in place, especially when that person is reluctant to accept assistance.
How much does this cost and who pays for it? I charge between $4000.00 to $6000.00 and then there are additional costs of approximately $1,000.00.
The interested party cannot use the proposed conservatee's money. Why? Because when you file this petition, you become adversaries. That is right. Your mom or dad will have an attorney appointed by the court to represent their interests. These are called PVP attorneys (probate volunteer attorneys). How does this attorney get paid? From the estate (or funds) of the proposed conservatee. Will you get reimbursed? Yes, if you as the petitioner prevail you will get paid from the estate (or funds) of the proposed conservatee too.
Sometimes attorneys will wait for the judge to order that their fees get paid. Most attorneys will no longer do this as the judges cut our fees and make us wait an inordinate amount of time to get reimbursed for work done on a family's behalf.
Seems pretty straightforward right? However, it does not always go that way. Often times, the proposed conservatee (usually a parent) objects and then it goes to trial.
The estate will have to pay for psychiatric reports to prove or disprove debilitating cognitive dysfunction. The PVP must do what is in the best interest of the client. But the PVP gets paid more money the more conflict there is. You can read between the lines.
Sometimes there are family members who object or file counter petitions. Unless settled, this will be an issue that must go to trial. Settlement often means that an independent fiduciary gets appointed. That person gets paid from the estate. In theory that sounds like a good idea, but there can be a lot of problems with professional conservators.
Professional conservators (also called "private conservators") earn a living from compensation for their services as conservator of the person, the estate, or both. They usually manage the affairs of several conservatees at once. Many are members of the Professional Fiduciary Association of California. See: http://www.pfac-pro.org.
In the past, there had been problems regarding the integrity with which some professional conservators manage their incapacitated clients' funds. Due to the passage of the Omnibus Conservatorship and Guardianship Reform Act of 2006, more stringent standards have been enacted regarding conservatorship oversight. However, in my opinion, it is still far from perfect.
To compound everything, we have a broken probate court here in Los Angeles. It takes forever for matters to be heard and resolved and the Judges are a hodge podge of attorneys or whom served in other civil departments who often know little about the probate system prior to taking the bench.
As I mentioned earlier, most people can avoid a conservatorship by being prepared and making good decisions about who will be in charge if they can longer take charge. You can avoid having an individual removed as a power of attorney or trustee if you unequivocally know that they will not abuse your finances and that they agree in advance to taking on the position.
Unfortunately, sometimes we do everything we can and then our brains interfere with our ability to allow others to help us. It is not your fault at that point. It is nobody's fault. It is just unsolicited cognitive dysfunction that disables us from seeing the harm barreling at us and causes us to believe that we are invincible.
In the end, I am glad that there is a system that might save us from the ultimate indignity giving all of our money to the Jamaican Lottery Scam.
LAST MINUTE UPDATE: Just minutes before I hit "send" for this newsletter to be published I got a call form a 90 year old woman who had just been served with legal papers indicating that her daughters are seeking a conservatorship against her husband, SURPRISE. She has no power of attorney, trust or advanced health care directive. Now she has to spend thousands of dollars on my fees instead of being able to direct them towards her husband's care.
Be prepared,
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