Who protects the conservatee?

A conservator files false documents with the court, claiming that s/he hired and paid for certain persons to provide caregiving services to an elder (conservatee) whom the court has already declared incompetent.  The truth is that those purported caregivers were never hired by the conservator.   

The conservatee is not represented by legal counsel, and no one else is legally responsible for investigating the accuracy of the information contained in the conservator’s reports to the court.  There are probate “examiners” who review the conservator’s documents, but their roles are limited to check for accounting inconsistencies and to make sure, for example, that the required accounting information is set forth in the proper format. 

They are not “investigators”.  They do not telephone the purported caregivers to find out if they were actually hired by the conservator and provided services to the conservatee. 

Again, they rely upon the representations, under penalty of perjury, made by the conservator. 

What’s the result?  The court, hearing no objection (and having no evidence before it to show otherwise), approves the acts of the conservator as well as his/her fee request. 

In California, if no one challenges the court’s ruling within the prescribed time, then the order becomes final. 

There’s essentially one exception:  Probate Code Section 2103 allows a later challenge if it can be shown that the court’s order was obtained by fraud, conspiracy, misrepresentation, or omission of a material fact.  That sounds like great news. 

Unfortunately, case law (which the courts rely upon) says that the types of fraud contemplated in Section 2103 must be “extrinsic”.  Hmmm … 

Let’s see … the “actual” fraud would be the conservator’s false representation that certain caregivers were hired.  But because the court’s ruling was not challenged in time, it’s become final. 

To get around that problem, the victim (incompetent conservatee) must prove that the conservator did something “outside” the fraud – something “extrinsic” to the fraud.  What could that be? 

Under case law, it means something like telling the conservatee not to attend the court hearing (for fear that the conservatee might object when s/he learned the truth about the phantom caregivers).  Seeing to it that the conservatee is at a baseball game while the court hearing is taking place.  Or lying to the conservatee by saying that everything was being done properly and there was no need to worry about anything. 

But when the court has already declared the conservatee to be mentally incompetent, and has no attorney, who is the “extrinsic” fraud to be committed against? 

The Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) was passed (with numerous amendments) to add additional protections to the vulnerable elderly – not to limit any rights.   

The real question is whether EADACPA supersedes Probate Code Section 2103.   

Unfortunately, that issue had not been raised with the appellate courts to date. 

Stay tuned.