Don’t wait until a conservatorship is necessary. Consult a probate lawyer today to explore alternatives for safeguarding a mentally declining loved one.
Watching a loved one experience cognitive decline can leave family and friends feeling helpless. Fortunately, there are legal options available to protect them — and these measures don’t always have to be as extreme as a conservatorship, particularly if your loved one is in the early stages of decline and still retains basic capacity.
The alternatives to conservatorship can vary depending on your loved one’s individual circumstances and the severity or potential progression of their incapacity. Consulting with a probate attorney at the first signs of decline can help ensure that the full range of options remains available to safeguard their wellbeing and financial security.
Suppose your elderly parent was recently diagnosed with Alzheimer’s, but they have yet to show any symptoms of the disease. Their physician, however, warns that a cognitive decline is inevitable.
Since your parent still retains mental capacity but may eventually lose it, it’s crucial for them to take proactive steps now to plan for their future and avoid the need for a conservatorship. This can be done by executing a power of attorney, trust, Advance Health Care Directive or, ideally, a combination of all three.
The unfortunate reality is that many individuals do not adequately plan for the possibility of incapacity. While they may create an estate plan to ensure their assets pass to the right people after their death, they often overlook how their personal and financial needs will be managed if they lose capacity due to a cognitive disorder or age-related challenges before death.
Failing to take precautionary measures can severely limit an individual’s options once incapacity occurs, sometimes leaving a restrictive conservatorship as the only viable solution. Although conservatorships can be lifesaving in many situations, they do come with significant restrictions.
Individuals under conservatorship may lose certain rights and freedoms, including the ability to manage their own finances or make medical decisions. Rather, their personal and financial affairs are often overseen formally and publicly through court-supervised proceedings.
By contrast, alternatives such as a power of attorney, trusts and Advance Health Care Directives allow individuals to make these decisions proactively.
That said, these alternatives to conservatorship are legally binding contracts, which means the person must have sufficient mental capacity when signing them. If the individual lacks capacity at the time, the documents can be challenged and potentially invalidated.
Understanding how conservatorships and their alternatives work — as well as the rules that govern them — can help ensure that a mentally declining or incapacitated loved one is protected in a way that respects their preferences and autonomy.
If you are unsure which legal arrangements your loved one may qualify for or which options would best meet their needs, a probate attorney can provide guidance and help you navigate these complex decisions.
What Is a Conservatorship?
A conservatorship is a legal proceeding in which a petitioner seeks permission from the court to manage the personal or financial affairs of an incapacitated or dependent adult who is unable to manage these aspects of their life on their own or is unable to resist fraud or undue influence.
Conservatorships are generally reserved for adults who are already incapacitated. To successfully obtain a conservatorship, evidence of their incapacity will need to be presented to the court. Evidence can include a declaration of incapacity from the adult’s treating physician, medical records or even testimony from those close to the adult.
The type of conservatorship granted, as well as its duration and scope, will depend on the specific needs of the individual for whom it is established. Conservatorships in California can be temporary or permanent, general or limited, and can cover either the person or the estate.
Temporary conservatorships are typically established on an emergency basis to protect an incapacitated adult who faces immediate risk of harm or is expected to regain capacity soon. These conservatorships often serve as a short-term solution until a more permanent arrangement is determined. Permanent conservatorships, on the other hand, generally remain in place until the adult’s death.
A general conservatorship grants the conservator broad authority over the adult’s personal and financial affairs. By contrast, a limited conservatorship provides only narrow powers and is usually reserved for adults with developmental disabilities, who can live independently but need help with certain major life decisions.
Finally, a conservatorship may be of the estate, granting authority to manage the conservatee’s financial matters, or of the person, granting authority over medical care and daily needs.
When a conservatorship is granted, the incapacitated adult becomes the conservatee, and the person appointed to manage their affairs becomes the conservator.
When Might Alternatives to Conservatorship Be Appropriate?
Alternatives to conservatorship — such as a power of attorney, trust or Advance Health Care Directive — are generally only viable if the operative documents were signed while the incapacitated adult still retained mental capacity. This is because each of these arrangements functions as a legal contract, requiring the signer to fully understand what the document is, what it authorizes and how it could impact their finances and loved ones.
Once capacity is lost, the law presumes that the individual no longer comprehends these essential details. As a result, any document signed after a loss of capacity may be subject to challenge and invalidation.
This is why it’s so important for adults to plan not only for how their assets will be distributed after death, but also for how their personal and financial affairs will be managed if they lose capacity before death — something a qualified estate planning attorney can help with.
By taking such precautionary measures, individuals can control who will make decisions for them in the event of their incapacity and the kinds of decisions those individuals will be authorized to make, reducing the likelihood that a restrictive conservatorship will ever become necessary.
When Are Conservatorships Necessary?
A conservatorship becomes necessary when an adult has lost the ability to make sound decisions regarding their finances, medical care or daily needs — and no other legal arrangement is already in place to address these matters.
For example, an incapacitated adult may need to sell a property to pay for their assisted living facility. Because such a transaction requires the transfer of a deed, which the adult cannot legally execute if they lack capacity, the court may appoint a conservator of the estate to handle financial transactions and manage the adult’s assets on their behalf.
Similarly, if an incapacitated adult requires a medical procedure but cannot provide informed consent, a conservator of the person may need to be appointed to make healthcare decisions, manage medical treatment and oversee the adult’s daily care.
Given how restrictive conservatorships can be, the court takes great care to ensure that they are genuinely necessary before approving them. In most cases, a conservatorship will not be imposed unless there is clear and convincing evidence that no less-restrictive alternative can adequately protect the adult’s wellbeing.
What Alternatives to Conservatorship Exist?
The most common alternatives to conservatorship are powers of attorney, trusts and Advance Health Care Directives. These documents empower third parties, like agents or trustees, to act on the principal’s behalf when the principal becomes incapacitated.
Once capacity is lost, establishing these arrangements is no longer possible, and a conservatorship may become the only viable solution.
To take advantage of these alternatives, advance planning is essential — ideally while the adult in question still has the ability to understand and execute legal documents.
Below, we explore the most common alternatives to conservatorship, how they work and how their scope and function compare to that of a conservatorship.
Powers of Attorney
A power of attorney is a legally enforceable document that grants a trusted party (called the attorney-in-fact or agent) the authority to manage the affairs of the person who executed the power of attorney (called the principal).
Most powers of attorney that are designed to protect adults in the event of their incapacity are either springing, meaning they take effect upon a declaration of incapacity by the principal’s treating physician, or durable, meaning they take effect upon signing and remain in effect until the principal’s death.
As long as the principal retains capacity, they can modify or revoke a power of attorney at any time. However, once they lose capacity, they no longer have the ability to make such changes or revocations.
While powers of attorney can serve a variety of purposes, in the context of estate planning, they are most commonly medical or financial in nature. A medical power of attorney (also called a health care power of attorney) authorizes the attorney-in-fact to make health care decisions for the principal once physicians determine the principal is no longer mentally competent. By contrast, a financial power of attorney grants the attorney-in-fact authority to manage the principal’s financial affairs, such as paying bills, managing investments or selling property.
Power of Attorney vs. Conservatorship: How Do They Compare?
A power of attorney allows an adult with capacity to select who will manage their affairs and how much authority that person will have. In contrast, a conservatorship is a court-supervised arrangement created after an adult loses capacity, meaning the court, not the individual, determines whether the conservatorship is necessary, who will fill the role of conservator and what the scope of their authority will be.
A durable power of attorney remains effective even after incapacity, making it one of the strongest alternatives to conservatorship. A springing power of attorney, on the other hand, activates only after incapacity has been confirmed, which can cause delays if emergency situations arise.
It’s worth noting that, even with a power of attorney in place, a conservatorship may still be required if the document is not comprehensive in the areas it covers. For example, a conservatorship of the person may be necessary if an incapacitated adult executed only a financial power of attorney but not one for health care.
Trusts
A trust is an estate planning tool through which a person appoints a successor trustee to manage and control the assets held by their trust for the benefit of trust beneficiaries after they lose capacity or die.
If most of an incapacitated person’s assets are held in a trust, it can often serve as an alternative to a financial conservatorship, since the trustee would already have authority to handle that person’s finances.
However, because trustees cannot make decisions about medical care or daily needs, a conservatorship of the person may still be required if the trust creator becomes incapacitated before executing an alternative arrangement for their personal care.
Trust vs. Conservatorship: How Do They Compare?
When comparing trusts and conservatorships, the key difference is in the scope of authority. A trustee’s powers are restricted to managing the assets held by a trust, whereas a conservator of the estate can generally exercise full control over a conservatee’s finances, so long as those assets are held in the conservatee’s name.
Because trust assets are in the trustee’s name, not in the name of the conservatee, conservators are usually not entitled to manage or control trust assets.
It’s worth noting that while a trustee must act in the best interests of the trust beneficiaries, every financial decision a conservator makes must be for the benefit of the conservatee.
In summary, while a trust can sometimes serve as an alternative to a conservatorship of the estate if most of the incapacitated person’s assets are held within the trust, it won’t necessarily eliminate the need for conservatorship. For example, say the person owns substantial property outside their trust or struggles to manage their personal care — a conservatorship may be required to ensure all their needs are met.
Advance Health Care Directives
An Advance Health Care Directive consists of a medical power of attorney and a living will, which provides instructions for end-of-life care. It is an estate planning tool that can sometimes serve as an alternative to a conservatorship of the person if it had been executed prior to an adult’s incapacitation.
While Advance Health Care Directives can be extremely helpful in clarifying for family members or designated representatives what the incapacitated person’s end-of-life wishes are and how decisions about their medical care should be handled, they only grant authority over medical matters, not financial ones. This means that if the adult also needs assistance managing their finances, a conservator of the estate may still be necessary to handle those responsibilities.
Advance Health Care Directive vs. Conservatorship: How Do They Compare?
If a valid Advance Health Care Directive is in place, it can serve as a less-restrictive alternative to a conservatorship of the person, particularly when the adult who executed the directive is still able to manage their day-to-day needs, such as shelter, nutrition and hygiene. However, if the adult is severely incapacitated and requires round-the-clock care, a conservatorship of the person may be a more appropriate option, since it grants broader authority.
While both arrangements deal with medical decisions and care, a conservator’s responsibilities extend beyond health care to include overseeing the incapacitated adult’s daily life — duties that do not fall under the scope of a health care representative.
It’s also important to note that an Advance Health Care Directive does not grant authority to manage a person’s financial affairs. If the incapacitated adult cannot handle their finances, pay bills or protect their assets, a conservatorship of the estate may still be necessary.
Generally, a combination of an Advance Health Care Directive and a conservatorship of the estate is an effective way to ensure both the medical care and financial decisions of an incapacitated adult are comprehensively addressed.
Still confused about conservatorship, power of attorney or other alternatives?
Deciding between a conservatorship, power of attorney, trustee or health care representative can feel overwhelming. While Keystone’s attorneys focus exclusively on probate matters and do not handle estate planning documents, we are here to help you establish a conservatorship for a loved one or pursue legal action against conservators, trustees, attorneys-in-fact or other fiduciaries who may be abusing their authority.
Call our firm today to discover how we can help.
