A conservatorship is a court case in which a judge appoints a responsible person to care for another adult, who otherwise cannot care for himself or herself or manage his or her finances. Like probate, a conservatorship is a complex and arduous legal process, in which the court delves into every aspect of a family’s financial life. Any time the court becomes involved, the result is expensive and time consuming, so steps taken to ward off a conservatorship may save your family untold stress in the long run.
Luckily, conservatorships can often be avoided by establishing an estate plan that designates a course of action, should the subject’s decision-making power become compromised. Powers of attorney are the most common solution in this case, as they give full authority to another party to make legal and financial decisions on their relatives’ behalf. The one main drawback is that power of attorney is “all or nothing.” The person on the power of attorney must be completely trustworthy, because he or she is granted the same power as the person granting it.
It’s important to note that even if a power of attorney exists, the party granting the power of attorney still has power over their finances; they’re not handing over complete power to the other party. Think of it as car with two set of keys; both people have a set, and both can drive the car. So, for example, even though an elderly person is being taken advantage of, he or she can continue taking cash out of the bank.
Of course, in a perfect world we would plan for every eventuality, but unexpected circumstances often come up, or relatives may be resistant to estate planning in general. In these cases, conservatorships may be unavoidable, while still a last resort. A common example is a caretaker wielding influence — past professional boundaries — and siphoning money away through nefarious means such as just plain stealing, investment or other scams, or even marriage. If foul play is expected, family members should meet with an elder law attorney as soon as possible. A conservatorship can be forced through court order, but as mentioned above, the process is lengthy and expensive, so you and your attorney should discuss every possible court of action and ensure that it is in fact your only choice.
Nothing can replace a proactive approach when it comes to protecting your family and their assets. Adult children should be vigilant with their parent’s affairs, and ensure caregivers are hired from an agency and properly screened. Even if an estate plan is in place, know your options and be prepared to consult an attorney at the first sign of trouble or foul play.