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What are the difficulties of a Conservatorship? Jennifer F. Scharre, probate attorney, discusses the complexities of a conservatorship and how a power of attorney and estate plan documents can avoid the need to create a conservatorship.
Jennifer F. Scharre is an attorney at the San Jose law firm, Temmerman, Ciley & Kohlmann, LLP. She provides representation in estate plans, conservatorship matters, power of attorney, guardianship matters, and trust and estate administration and litigation.
Difficulties of a Conservatorship
One of the most frustrating things for my clients who are acting as conservators 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, my dad, my aunt, or my uncle have done to avoid this happening?
The answer is very simple. They could have completed some estate planning.
How to Avoid Difficulties of a Conservatorship
A durable power of attorney and an advance 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 becomes when you don’t have these documents in place.
Obtaining a Conservatorship
Whenever we actually obtain a conservatorship, my clients feel justifiably a bit victorious that they have gotten through this difficult process. But oftentimes 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 accounts for all the payments they’re making on the Conservatee’s behalf.
- Ultimately, they have to ask the court for permission to sell any property. Now, this can be a very onerous requirement and oftentimes harder than the actual petition for probate itself.
But remember that when we are conservators, 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.
Download the Judicial Council of California Handbook for Conservators
Conservatorship vs Power of Attorney
There are many types of power of attorney forms and other free legal forms available online.
The challenge for most of us is that we do not know if we are using the right form or how to properly execute the form.
Estate planning for dummies may not get us the results we need. We recommend hiring an attorney.
As mentioned above, having the proper estate plan documents in place can avoid the difficulties of a conservatorship.
Just about everything you need to know is detailed on our conservatorship page. On that page, you will learn how to file for conservatorship, and the petition for a conservatorship to be the conservator of a person and the estate.
Conservatorship vs Trust
The Internet is a wonderful resource for many things. It is one thing to know what we need and another to know how to create the documents we need.
No matter what type of estate plan document is needed, it could be a costly mistake to download conservatorship forms or other estate planning forms from the Internet and start filling in the blanks. By the time we discover that the do-it-yourself wills and trusts forms are not executed correctly, it may be too late, and one may be faced with the difficulties of a conservatorship.
A Trust and power of attorney can avoid the need to create a conservatorship. Jennifer details information in her video on our conservatorship vs trust page.