Jennifer F. Scharre, probate attorney, discusses the complexities of a conservatorship and how estate planning documents can avoid the need to create a conservatorship.
One of the most frustrating things for my clients who are acting as conservator is the sheer amount of work and money that has to go into it. They have to make regular reports to the court about care, they have to file ongoing accounting, and they have to have a bond for all of the assets. A lot of times these clients ask me:
What could my mom or my dad, or my aunt or my uncle have been done to avoid this happening?
The answer is very simple. They could have completed some estate planning.
A durable power of attorney and advanced healthcare directive are absolutely key to staying out of a conservatorship. When most people look at these documents which range somewhere between two and twenty pages, it is difficult for them to realize how simple it would have been to complete these documents ahead of time and how difficult this process now becomes when you don’t have these documents in place.
Whenever we actually obtain a conservatorship, my clients are feeling justifiably a bit victorious that they have gotten through this difficult process. But often times they don’t realize the ongoing requirements that they have to the court.
They have to be bonded for whatever the estate’s assets are. They have to file a care plan with the court and notify all of the family members about exactly what they are doing with respect to medical decisions. They have to file accountings for all the payments they’re making on the Conservatee’s behalf and ultimately they have to ask the court for permission in order to sell any property. Now, this can be a very onerous requirement and often times harder than the actual petition for probate itself.
But, remember that when we are a conservator you are a fiduciary. You are not acting for yourself, you are acting for another individual and the court is the person exercising that oversight.
About: Jennifer F. Scharre is an attorney at the San Jose law firm, Temmerman, Ciley & Kohlmann, LLP. She provides representation in estate planning, conservatorship matters, guardianship matters and trust and estate administration and litigation.
Jennifer may be reached at 408-290-7210 or www.tcklawfirm.com.