|What is a Conservatorship and when is it necessary? |
| A Conservatorship is a court supervised proceeding in which another person or persons are appointed to take care of another's personal and financial affairs.|
The Probate Court may appoint a Conservator of the Person for someone who is no longer able to provide properly for his or her personal needs (physical health, food, clothing and housing); it may appoint a Conservator of the Estate for someone who cannot manage his or her own finances or to resist fraud or undue influence.
|How does the need for a Conservatorship arise?|
The Law Offices of Julia P. Wald has helped many clients obtain a conservatorship for relatives when it became absolutely necessary. For example, Barbara came from out of town to visit her mother, Susan, and found her mother's papers on the gas stove, bad food in the refrigerator and on the counter, and clutter and unopened mail everywhere. Neighbors reported that her mother was wandering the neighborhood at night. We helped establish a conservatorship for this elderly and confused person.
We have had other situations where a neighbor or friend called the police because newspapers were piling up outside the house, the garbage had not been taken out, and no one was answering the door. The police did a welfare check and they brought in Adult Protective Services who contacted the family. Again, in these cases we established conservatorships.
Other cases arise when a family member becomes aware that a caretaker, housekeeper, gardener, or new boyfriend or girlfriend is taking money from a loved one. That problem surfaces when someone is writing checks for the elderly person and the relative or the bank notices unusually large withdrawals. Other times, the elderly person announces that she is going to give money to a caretaker or other household employee or the new boyfriend or girlfriend. If the elderly person needs the money for his own care, these gifts are imprudent and need to be prevented. How to stop them may be unclear.
|What can you do to help to protect your loved one?|
The first step is to find out if your relative will accept assistance voluntarily.
If so, find out if she has estate planning documents. Has he signed a Durable Power of Attorney for Health Care and a Durable Power of Attorney for Finances? A Revocable Living Trust? Who are the people designated to take over if your relative becomes incapacitated?
Find out if you can speak with a doctor to confirm whether your relative can continue to take care of herself and her finances.
If your relative is willing to accept help, take whatever steps are necessary to follow the instructions in his estate planning documents as to who is to take charge. Consult with an attorney who is familiar with estate planning and conservatorships.
|But what if your relative will not accept assistance voluntarily?|
It is likely that your relative will be unwilling to accept assistance voluntarily. Then you may have to petition the Court for appointment of a Conservator. A petition for the appointment of a Conservator may be filed by any concerned person.
|Who can be the Conservator?|
Who has a right to be appointed Conservator is clear, there is law on the subject. At least here the skies are clear:
1. The spouse or registered domestic partner
2. The adult children
3. Brothers and sisters of the proposed conservatee
4. . . . It gets tricky. There are also private professional fiduciaries who serve as Conservators.
Whom to select may, however, be hard to decide among those with the right.
|What proof does the Court require to appoint a Conservator?|
The main source of proof for the appointment of a Conservator is a doctor's capacity declaration.
The doctor specifies whether there is any impairment and the degree of impairment in the mental functions of the Conservatee. It must be shown that a deficit or combination of deficits in one of the mental functions severely impairs that person's ability to act in his own interest, to carry out normal daily functions, like eating and bill paying, and/or understand and appreciate the consequences of his or her actions.
The Court (and law) does not look for a medical diagnosis but for how the impairments disable. Is the person so forgetful she doesn't remember to eat? To pay bills? Is the person so deluded he thinks his wife is alive? The fog has come in; what is the result?
The proposed Conservatee may object and the court will make sure she is represented by an attorney. He or she is entitled to an evidentiary hearing on the petition before a judge or jury.
What are the duties of the Conservators of the Person and the Estate?
The person who is appointed as the Conservator of the Person ("CP") must decide where the proposed Conservatee will live. The CP will also take the Conservatee to the doctor and the dentist and other appointments and may make medical decisions. The CP will work with the Conservator of the Estate ("CE") to make sure the Conservatee's needs for food, clothing and housing are met.
The person who is appointed as Conservator of the Estate ("CE") will manage all of the proposed Conservatee's assets. The CE must qualify to be bonded. A credit check is necessary to apply for a bond. The two primary responsibilities are:
A. Pay all of the bills of the Conservatee; and
B. Manage the investments of the Conservatee.
Most often, the Conservator of the Person and the Estate are the same person.
|What does a Conservatorship cost and who pays?|
A Conservatorship can be expensive.
The filing fees and the court investigator fees of $1,200 are paid to the court. There are fees for legal services for the attorney who works for the person petitioning and for the attorney who represents the CP and CE. The Court may also appoint an attorney to represent the proposed Conservatee. The Conservatee pays all these attorneys' fees. The CP and CE may also need payment.
The fees and costs will be paid from the assets of the proposed Conservatee after they have been approved by the court.
|Are there ongoing costs of a Conservatorship?|
Yes. The Conservator or Conservators are entitled to be paid, even if she is/are related. But a CP who is a daughter would not be paid for visiting mom Sunday afternoon. She is entitled to have costs reimbursed, like bus fare, copying, wages lost in caring for the Conservator.
There are other ongoing costs that include paying attorneys' fees for filing annual court reports, mandated court investigations, continuing file fees.
|How can I avoid a Conservatorship for myself?|
A Conservatorship is expensive and takes away rights. A Conservatorship should be the last resort.
In order to avoid a conservatorship for yourself, it is very important to have and to fund a revocable living trust.
In the event that you have a revocable living trust and you become incapacitated, then your successor trustee can take over your financial affairs. Your successor Trustee usually does not have to go to Court.
In addition, you should have a Durable Power of Attorney for Health Care. This document gives power to make medical decisions for you.
It is also important to let family know about your estate planning documents and your preferences and to seek help when you need it.
If you create a good path, the clarity will keep the fog away.
If you want to discuss any issue raised in this newsletter, please give us a call. We will be happy to discuss your concerns confidentially.
Julia P. Wald
The Law Offices of Julia Wald