Sometimes adults become unable to handle all of their own affairs due to incapacity. Under these circumstances, in California, the matter of conservatorship enters the picture.
In California, a conservator is someone who is appointed by a court to make decisions on behalf of someone who is incapacitated. In some states, a guardian would be appointed to handle personal decision-making, and a conservator would manage the financial affairs of a ward.
In California, a conservator would handle all types of decision-making for an incapacitated adult. In our state, a guardian is someone who would manage the affairs of a minor child.
Disadvantages of a Conservatorship
If people close to you felt as though you were unable to make sound decisions on your own, they could petition the state to appoint a conservator to manage your affairs. On the one hand, this is a positive safeguard. On the other hand, there are numerous disadvantages that can present themselves.
One of them is the simple matter of choice. The court could appoint someone that you would have chosen yourself, but there are no guarantees. In the end, the individual who is empowered to act on your behalf may not be the person that you would have chosen when you were of sound mind.
Secondly, everyone in your family is not necessarily going to be on the same page. There could be multiple different family members who want to act as conservator. This can result in hard feelings and acrimony among your loved ones, and it could also prolong the conservatorship proceedings.
Third, the conservatorship process is expensive and often last for years until the person put under the conservatorship dies.
Fourth, the court proceedings under conservatorships are cumbersome and can be difficult to navigate. It is very unlikely a person can navigate conservatorship procedures without the assistance of an attorney and accountant.
A well constructed and managed estate plan will include an incapacity planning component that can prevent a conservatorship. The legal documents that are executed to make a conservatorship unnecessary are called durable powers of attorney, advanced health care directives and revocable living trusts.
Most people are aware of the fact that a power of attorney is a document that you can use to empower someone to act on your behalf. A power of attorney that is not specifically designated as durable would no longer be in effect if the person granting the power was to become incapacitated.
Durable powers of attorney do remain in effect upon the incapacitation of the grantor, and this is why they are used.
When these documents are properly in place, there would be no need for a conservatorship.
Schedule an Incapacity Planning Consultation
If you would like to prepare for possible incapacity late in your life, our firm can help. We offer consultations, and we can answer your questions and help you put a plan in place.
To set up an appointment, simply contact our office.
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