Financial Abuse By Crooked Conservators
A conservatorship generally begins when someone petitions the court and represents to a judge that an elderly person is unable to care for their own personal needs and/or manage their finances. A lawyer, elder law attorney, will represent a person, conservator, who will file for a conservatorship in order to help the elderly person pay their bills, buy groceries, attend medical appointments, etc. Unfortunately, many times an unscrupulous conservator singles out an elderly person for the sole purpose of obtaining access to their finances and then depleting the estate.
This often occurs because the conservatee (elderly person) has some form of dementia, short/long term memory loss, and is just too weak physically and mentally to object to the establishment of a conservatorship. Family and friends may not be aware of the elderly persons needs, and are therefore not available to offer assistance.
What is needed is for someone to step up to the plate and inform the court, on behalf of the elderly person, that a conservatorship may not be necessary and that other alternative options are available in order to handle the elderly person’s finances and medical needs. Always, a conservatorship should be a last resort and all possible alternatives should be explored that can provide for the elder’s needs without court involvement.
In deciding whether or not to establish a conservatorship, the court generally requires that a probate investigator personally meet with the elder for a face-to-face interview, in which the conservatorship proceeding is discussed, the elder is allowed to express his/her opinion as to whether they wish to have a conservatorship imposed upon them, and then a recommendation is made to the court.
These probate investigators fulfill that particular task; however, they generally do not have the time nor the resources to contact available family members or other loved ones to determine whether outside assistance can be provided to meet all of the elder’s needs without establishing a conservatorship. Unfortunately, if the elder (or others) fails to inform the court that feasible alternatives exist (or have not yet been investigated), then the courts often “rubber stamps” the petition and a conservatorship is then established.
Once established, the crooked conservator now has access to all of the elder’s funds. With that authority, the conservator can then hire friends, family members, or others to perform various tasks that may not actually be needed. The new conservator may hire his daughter’s husband (otherwise unemployed and not qualified) to unnecessarily paint the house. Full-time (unneeded) caregiving services may be contracted for, at huge expense, without having first investigated alternatives such as less expensive adult day care centers or the possibility that friends or family members could voluntarily donate some of their time to attend to the elder’s needs.
When an unnecessary conservatorship is established, then the estate of the elder can be quickly depleted. Aside from unnecessary caregiving services, repair and maintenance costs on the home, the elder’s funds are also depleted by the fees charged by the conservator and his/her attorney.
The conservator is required to provide an accounting to the court of all money that has been received and spent. However, unscrupulous conservators will generally take control of elders who have no immediately available friends or family to object to the accounting or the initial establishment of an conservatorship. The court is then left unaware of the rip-off.
Fortunately, crooked conservators can be stopped. It will require that someone step up to the plate and inform the court that alternatives exist to a conservatorship.
For example, if a valid advance health care directive (power of attorney for health care) exists or can be created, then the elder’s agent will have full authority to make health care decisions for the elder.
Similarly, if a valid power of attorney for financial management exists or can be created, then the elder’s agent would have full authority to handle all financial matters. Alternatively, it may be possible to retain a professional (bonded) fiduciary to perform these tasks.
These two steps could avoid the need for a conservatorship, as the elders agent(s) would already have all of the authority that a conservatorship would grant through the court.
Family, friends or other interested persons can go to court and request that the judge appoint an elder law lawyer to represent the elder. That attorney’s task would be to consult with his client, contact friends and family, and explore alternatives to the establishment of a conservatorship.
Again, a conservatorship is a very costly and time-consuming process and should be established only after a conclusion is reached that no viable alternatives exist.
If it has been discovered that a conservatorship was unnecessarily established, or that a conservator has improperly used the elder’s money, then a petition can be filed to request that the judge surcharge the conservator and that the money, wrongfully taken, be returned to the elder’s estate. A bond or surety company, which would have been ordered by the court, will now be responsible for reimbursing the estate if the crooked conservator cannot come up with the money himself/herself.
Of course, the most effective way to protect an elder from a crooked conservator, is to get involved immediately and inform the court that there are specific ways to ensure that the elder’s finances and medical needs can be met without the establishment of a conservatorship. Action must be taken quickly enough, before the conservator has time to deplete money from the estate.
The legal remedy to surcharge the conservator for money improperly spent, is one remedy. But the most effective method to stop these unscrupulous conservators, is to take immediate action the moment a petition is filed (or expected to be filed) with the court.