Do you or your parents need Nominations of Conservator?

Heeding the warnings of the new Netflix movie "I Care A Lot."

Early last year, Netflix released a docuseries called “Dirty Money” which explores the system by which elders who have lost legal capacity are denied their assets and dignity through the appointment of professional guardians or conservators. Now, Netflix has released a movie called “I Care A Lot”, a fictionalised version based on the real-life court-appointed professionals who act as professional guardians or conservators for adults who have lost legal capacity. Both of these shows make horrifying viewing.

WHO WILL MAKE DECISIONS FOR YOU WHEN YOU CANNOT MAKE DECISIONS FOR YOURSELF?

In California, the loss of legal capacity means the inability to make decisions for yourself. What happens when this occurs? Someone else will have to be appointed by court order to make decisions on your behalf. Who will that person be?

If you have a spouse, partner, adult child or trusted friend in your life, you would probably prefer that person to be appointed to take decisions for you than a stranger appointed by the court. But, if you do not put into writing your wishes prior to losing legal capacity, it will be too late for you to make your wishes known to the court. Thus, it is imperative to document your wishes while you are able. The document to use is called a Nomination of Conservator.

WHAT IS THE ROLE OF CONSERVATOR?

The legal role of conservator is divided into two, although the same person can be appointed to both roles: Conservator of the Person (sometimes called Conservator of the Body) and Conservator of the Estate.

The Conservator of the Person makes lifestyle decisions for you. These decisions are extraordinarily wide ranging - including what you will eat for breakfast, where you will live and who you will see.

Can you imagine having a stranger make these decisions for you, while charging you for the privilege? It doesn’t bear thinking about.

The Conservator of the Estate takes control of all your assets and decides how to invest, disinvest and/or spend them. Again, you are charged significant amounts for this service. The moral of the two shows mentioned above is that any plans for passing assets to family members after your death will be in severe jeopardy if a professional conservator is appointed. While the shows obviously tend towards the dramatic, they highlight the need to reduce risk by putting the correct document in place.

ARE THERE LIMITS ON WHAT A CONSERVATOR CAN DO?

Of course, all conservators are fiduciaries, who in theory are required to act only in your best interests. If you watch the shows mentioned above, you can see how this system breaks down. The court has already determined that you are unable to speak up for yourself. The court has already determined that the conservator or guardian has these broad powers. Asserting yourself in this situation is extremely difficult.

IS REMOVING A CONSERVATOR DIFFICULT AND EXPENSIVE?

If one of your relatives brings a court action against the conservator, your relative will have to fund the legal fees out of his or her own pocket, without access to your money. In contrast, now in addition to the conservator being paid out of your funds, the conservator’s attorney will also be taking legal fees from your accounts. This can get ruinously expensive.

Moreover, in the courtroom, the playing field will not be level. The conservator is a professional with training and experience in retaining paying clients. The conservator will have appeared before this judge previously, probably in other cases, but certainly to be appointed as your conservator. The judge is now being asked to reverse a decision, so your relative will have to change the judge’s mind, which can be tricky. Added to this, all these people do this everyday - your relative has probably never been in a courthouse before.

HOW CAN I AVOID THIS SITUATION?

It is vital to think about who you trust to take on this role. Ask whether they would accept the position. Is there anyone who might act as a back-up if your first choice is unavailable? You might nominate your spouse, but if he or she becomes unavailable, then you would nominate your adult child as a back-up. Or, you might have a sibling who could act as conservator, and if he or she is unavailable, a trusted friend could be nominated as an alternative. Then, create the document and give copies to the nominees and closest trusted relatives, keeping the original in a fireproof box.

WHAT FORM SHOULD THE DOCUMENT TAKE?

Some forms of Advance Healthcare Directives include a Nomination of Conservator. These are excellent for informing healthcare providers that you have a person to take care of you and this document should be kept on file with your physician. However, you should also create a separate Nomination of Conservator document (with the same person nominated) to be submitted to the court, if and when this becomes necessary. Documents submitted to court will become public record and thus you do not want the extra information contained in an Advance Healthcare Directive to be submitted to court.

CONCLUSION

Putting in place a Nomination of Conservator is a simple step to bring peace of mind and ensure that you and your family continue to thrive through crises. Elders decline, serious car accidents happen - are you responsible for other adults, whether seniors or young adults? Having the difficult conversation to encourage them to get their documents in order now is much easier than trying to help them when it is too late for them to help themselves. If you are the person in your family who generally organizes everything, it is particularly imperative that you create the documents that will help your relatives to help you, when the time comes.

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(DISCLAIMER: This newsletter is for educational purposes only and contains no legal advice. No attorney-client relationship is established by subscribing to or reading this newsletter. Attorney Elizabeth Botsford and Busy Wills, Inc. does not know you or your specific family situation and thus cannot know whether the above applies to you or not.)