Tale of Caution: Conservatorship

In this week’s Tale of Caution, we’ll be discussing the cost of Conservatorship and the financial and emotional toll it can take on a family, and how to avoid it.

Martha and David were both widowers that met each other later in life. Never married, but living together for years, Martha had always intended for David to make medical and financial decisions for her should she be unable to, but never got around to legally designating him for these things. She owned her home that they lived in together. She had an estranged son across the country and a sister she kept basic contact with by phone or email, but weren’t especially close.

One day David noticed Martha was acting funny. He called an ambulance and it was later determined she had a stroke. She was completely incapacitated and it was unclear of when and if function would return. Upon receiving the news, both her son and sister arrived. The following week her son filed a petition with the court to be made a Conservator of both her person and her estate.

The first step in a Conservatorship is an investigation to determine if the individual is truly incapacitated. The court would put together a team to examine Martha and determine if she is incapacitated. The court would appoint a lawyer to represent Martha as well. Both the committee and lawyer would meet with her and file their report with the court. There would be a hearing to decide if Martha was truly incapacitated and then, if so, who would be appointed her Conservator or Guardian.

If her son is granted Conservatorship, he will be making all the decisions for her medically and financially. As Martha did not have designated a durable Power of Attorney, Medical Directive, or Living Trust on file, David would have no rights to make any decisions, even though that was Martha’s wishes. Besides causing bad blood, if Martha regains mental capacity she may be upset to find that the person she wished to making decisions, whom she felt had her best interests at heart, was unable to. Conservatorship can also become very costly between filing, court fees, and attorney fees, and some of these costs may be taken out of her estate.

How could Martha have avoided Conservatorship?

Martha, and everyone for that matter, needs to have Powers of Attorney and Medical Directives on file with an attorney. An attorney can guide you through the process of estate planning that encompasses all of the paperwork that needs to be filed to ensure the right person is the decision maker should something happen to you. Living trusts can protect your estate and designate a trustee that would make decisions should you become incapacitated. Avoid putting your loved ones through Conservatorship. Consult an attorney and plan ahead to avoid costly legal issues for your family and loved ones in the future.

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