Terminating a Conservatorship

You might be shocked at how many times an unnecessary California conservatorship is set into place.  Sometimes a conservatorship is necessary, but I would estimate that nearly half could have been avoided if a less restrictive alternative had been thoroughly examined.

A conservatorship should always be a choice of last resort.  Where there is an incapacitated (single) elder, for example, with no trust having been established, no powers of attorney in place, and no authority for anyone to assist with finances and healthcare decisions, then a conservatorship may be the only option available.

Sometimes, an elder still possesses the legal mental capacity to execute powers of attorney, but is unable to reside fraud or undue influence being exerted by a predator.  In such cases, the wrongdoer might simply convince the victim to revoke (otherwise legitimate) powers of attorney and execute new ones – naming the perpetrator as the agent with the authority to make these decisions.  Under such a scenario, a conservatorship might be required to ask the court to step in and appoint a trustworthy person to take care of the elder’s needs.

But I’ve seen too many conservatorships established as a “knee-jerk” reaction by attorneys (and family members) who either neglected to pursue other less restrictive alternatives, or just didn’t know what other options were available.

Once a conservatorship gets established, it takes on a life of its own.  It’s costly, time-consuming, and emotionally draining on family members.

Terminating a conservatorship can be relatively simple … sometimes.  They are not etched in stone.  If sufficient proof can be presented to the court to show that the (elder) conservatee is capable of making sound financial and healthcare decisions, then the court must terminate the conservatorship.  In fact, a conservatee has the right to request a jury trial to determine whether a conservatorship is still required.

When an elder-conservatee is not completely of sound mind, s/he may still have the ability to execute powers of attorney (for financial management and healthcare decisions), and to execute a revocable trust.  Probate Code Section 811 sets forth the categories that the court will look at to see if legal mental capacity exists.  The conservatee may exhibit deficiencies in one or more of these facets, yet still be mentally capable of executing estate planning documents where authority is granted for an “agent” and/or “trustee” to make the necessary decisions.

The court’s main concern is, and should be, that the conservatee’s finances and health are protected.  Although the conservatee may lack a sophisticated understanding of these issues, if a qualified psychologist or psychiatrist can truthfully report (to the court) that the elder is capable of understanding that, for example, by executing a financial power of attorney, s/he is granting an “agent” the authority to manage all finances, then it’s quite possible the conservatorship over the “estate” can be terminated.

Of course, this approach must include a petition to the court to approve the execution of any such estate planning documents as an alternative to a conservatorship.  Any financial “agent” (or “trustee”) would need to be bonded to ensure that the elder’s estate is always protected.

Again, sometimes a conservatorship is absolutely necessary.  But careful thought must be given to explore less restrictive alternatives.  When such alternatives exist, then it’s appropriate to petition the court to terminate the conservatorship