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If you have an elderly loved one who is declining mentally or is expected to decline mentally, you may need to start taking steps to protect them. There are several legal options available for protecting incapacitated adults; the best option for your loved one will depend on their circumstances.

For example, is the adult for whom you are concerned already mentally incompetent or are they projected to lose mental competence in the future (e.g., because of a diagnosis of Alzheimer’s disease)?

Had the incapacitated adult executed estate planning documents when they were of sound mind empowering another adult to act on their behalf if they become incapacitated in the future?

Had the incapacitated adult executed a trust when they had the capacity to contract nominating a successor trustee to take over management of the assets held by the trust in the event they become incapacitated or die?

Had the incapacitated adult executed an Advance Health Care Directive prior to becoming incapacitated?

The answers to these questions will determine whether the elderly or incapacitated adult in your life will need a conservatorship or can utilize one of the alternatives for conservatorship. We will go over what all of this means in a forthcoming section.

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Table of Contents:

What Is a Conservatorship?

Conservatorships are legal proceedings during which a responsible adult seeks permission from the court to manage the personal and/or financial affairs of an incapacitated adult who has proven unable to manage these aspects of their life on their own. 

Conservatorships can either be temporary or permanent. A temporary conservatorship is usually established to protect an incapacitated adult who is under immediate risk (e.g., because they are in a coma or are residing in an unsafe living environment). They can be terminated if the conservatee regains competence, but they can also serve as a placeholder until a permanent conservatorship, which is usually reserved for incapacitated adults who are not projected to regain capacity, can be established. Both temporary and permanent conservatorships can be general or limited. 

A general conservatorship grants the conservator broad authority over the conservatee, whereas a limited conservatorship only grants the conservator minimal authority over the conservatee, which is why they are generally reserved for developmentally disabled adults who can navigate life predominantly on their own but need assistance with making important life decisions.

If the court grants the proposed conservatorship, the incapacitated adult will become what is known as a conservatee, and the adult managing the conservatee’s life and/or finances will become what is known as a conservator.

A conservator can either be a conservator of the person, who is responsible for managing the conservatee’s essential daily needs (e.g., food, shelter, clothing, health care), or a conservator of the estate, who is responsible for handling such tasks as collecting the conservatee’s income, paying their taxes and debts, and keeping detailed records of every financial transaction made using the conservatee’s assets, or both. 

How Do I Know Whether My Loved One Needs a Conservatorship?

While conservatorships have been known to save lives and are necessary in many situations, there are downsides to conservatorships that are worth considering.

For instance, conservatorships can be quite restrictive for the conservatee, since they basically relegate the rights of the conservatee to those of a child. Depending on the powers granted to the conservator, the conservator may have the authority to make critical life decisions for the conservatee, including where the conservatee lives, whether the conservatee undergoes certain medical treatment, and how the conservatee spends their money.

Conservatorships can also be burdensome for the courts, since they are required to oversee them. What this means for those seeking a conservatorship is that the court will do its due diligence in ensuring the conservatorship is actually needed and none of the alternatives to conservatorship can be used. 

If the court ultimately grants the conservatorship, it will require the conservator to periodically report to the court with updates concerning the management of the conservatee’s person and/or finances. As a result of the court’s active involvement in the conservatorship, it is likely substantial time and money will be spent formally overseeing many aspects of the conservatee’s life.

Because of the ethical and legal dilemmas conservatorships can present, the court will not grant a conservatorship if it believes the proposed conservatee is capable of caring for themselves. Likewise, the court will generally not grant a conservatorship if there are less restrictive means of protecting the proposed conservatee’s person or finances (e.g., if the proposed conservatee had executed estate planning documents prior to their incapacitation empowering another adult to act on their behalf should they lose mental competence during their lifetime). If a third party is already in a position to make personal and financial decisions on behalf of the proposed conservatee, it is unlikely a conservatorship is necessary.

On the other hand, if the incapacitated adult had not taken steps to nominate a fiduciary when mentally competent, a conservatorship may be the only viable legal option available for protecting them in the event of their incapacity.

Estate planning documents that can serve as viable alternatives to conservatorship include powers of attorney (POA), trusts, and Advance Health Care Directives. We will go into the differences between conservatorship vs. POA (including durable power of attorney vs. conservatorship), conservatorship vs. Advance Health Care Directives (including conservator vs. health care representative), and conservator vs. trustee in the following sections.

What Are the Alternatives to Conservatorship?

If the Covid-19 pandemic has taught us anything, it is that life is unpredictable, and it is never a bad idea to be prepared for the worst-case scenario, including our own incapacitation. Many people execute estate planning documents — such as a power of attorney, trust or Advance Health Care Directive — to authorize a person or entity they trust to act on their behalf in the event they become incapacitated and financial or personal/medical decisions need to be made for them.

Because of the extent to which they restrict freedom, conservatorships are generally not the preferred option of the court, the proposed conservatee or the conservatee’s family; however, when there are no estate planning documents nominating a fiduciary to manage the personal and financial affairs of the adult in question, a conservatorship may be the only legal option available for protecting them, since the incapacitated adult lacks the requisite capacity to execute a new estate plan. 

If, despite being incapacitated, an adult manages to execute a new estate plan, the estate plan could be challenged in court after they die on account of lack of capacity and be potentially voided.

The loved ones of elders and incapacitated adults should understand the following subsections, which go over the alternatives to conservatorship, in order to ensure they are proposing the optimal legal arrangement for their loved one. A probate attorney can assist with this process. 

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Power of Attorney as an Alternative to Conservatorship

What is the difference between power of attorney and conservatorship? Is conservatorship the same as power of attorney? If you are deciding on whether to seek a conservatorship vs. powers of attorney in California, it is important to make yourself aware of the differences between the two legal arrangements.

What Is a Power of Attorney?

A power of attorney is a legally enforceable document that grants a trusted party (e.g., a family member or business partner), called the attorney-in-fact, the authority to manage the affairs of the person who executed the power of attorney, called the principal

An attorney-in-fact may be appointed through a nondurable power of attorney, which generally takes effect as soon as it is signed but limits the scope of the authority granted to the attorney-in-fact and terminates at a specific time or if the principal becomes incapacitated or dies, a durable power of attorney, which takes effect as soon as it is signed and remains in effect until the principal revokes it or dies, or a springing power of attorney, which takes effect only if the principal becomes incapacitated during their lifetime and their incapacitation is confirmed by their physicians. 

Powers of attorney are either medical in nature or financial in nature. A medical power of attorney (also called a health care power of attorney) empowers the attorney-in-fact to make most health care decisions for the principal after they have been deemed mentally incompetent by their physicians. A financial power of attorney empowers the attorney-in-fact to oversee all aspects of the principal’s finances.

Conservatorship vs. Power of Attorney

When executing a POA, the principal can decide whether to provide the attorney-in-fact broad or limited authority over their life (e.g., an attorney-in-fact may be permitted only to manage the principal’s business transactions, but not their personal transactions). While conservatorships also grant the conservator broad or limited authority to manage the affairs of the conservatee, it is not up to the conservatee to decide which level of authority is appropriate; it is up to the court. 

Next, with POAs, it is up to the principal to decide whom they would like to appoint as their attorney-in-fact. With conservatorships, the ultimate decision of who is to be the conservator of an incapacitated adult is left up to the court. While the incapacitated adult will have a chance to express their approval or disapproval of the proposed conservator or the conservatorship in general, the decision of whether to approve the conservatorship and whom to appoint as conservator ultimately lies with the court.

The other main difference when it comes to conservatorship vs. POA is that a POA can only be executed by an adult who is mentally competent. In other words, if an adult already has been diagnosed with advanced Alzheimer’s disease and lacks capacity, they cannot execute a valid POA because they lack the capacity required to sign such a document. If a POA had not previously been executed by the incapacitated adult, and they had not executed any of the other alternatives for conservatorship, a conservatorship may be their only option.

Many of our clients are confused on the issues of durable power of attorney vs. conservatorship and springing power of attorney vs. conservatorship. 

Because a durable POA remains in effect after the principal becomes incapacitated, it is an ideal alternative to a conservatorship, given that it provides the attorney-in-fact with sufficient authority to adequately manage the affairs of the principal. Suppose that a principal was left incapacitated after an accident and needs someone to consent to life-saving medical procedures on their behalf. A durable POA for healthcare may enable the designated attorney-in-fact to provide the necessary consent without seeking confirmation of the principal’s incapacitation from their physicians first.

A springing power of attorney is another good alternative to a conservatorship since it takes effect once the principal has been confirmed as incapacitated by their physicians. The only downside to this type of POA is that if the principal were to require, say, an emergency medical procedure, there could be a delay in obtaining consent, as the attorney-in-fact would typically not be permitted to act until the principal’s physicians have confirmed the principal’s incapacitation. 

There are certain instances in which an incapacitated adult may require a conservator even if they had executed a power of attorney in the past. For example, if an incapacitated adult previously had only executed a financial power of attorney, they may require a conservator of the person to manage their health care and essential daily needs. Likewise, if an incapacitated adult previously had only executed a health care power of attorney, they may need a conservator of the estate to manage their financial affairs. 

What Happens If an Incapacitated Adult Has a Conservator and Attorney-in-Fact?

If the proposed conservatee had previously executed valid power of attorney documents, the court may be inclined not to appoint a conservator under the belief that a viable, less restrictive alternative to conservatorship is available. However, sometimes, a conservatorship is needed because the proposed conservatee’s attorney-in-fact had mismanaged their assets or engaged in other forms of malfeasance. In such instances, the court may find the power of attorney documents to be insufficient in protecting the proposed conservatee’s person and/or finances.

When the court does approve a conservatorship for an incapacitated adult who is under a POA, it is usually because:

 

  • The POA does not grant enough authority to the attorney-in-fact to adequately manage the incapacitated adult’s affairs (e.g., the POA only grants financial powers to the attorney-in-fact so they are not authorized to manage the principal’s health care); or
  • The designated attorney-in-fact is not being diligent in fulfilling their duties to the principal (e.g., they are failing to timely pay the principal’s bills and taxes); or
  • The attorney-in-fact is breaching their fiduciary duties (e.g., they are making risky investments using the principal’s assets or outright stealing them)

If the court learns that an attorney-in-fact is abusing their power or failing to fulfill their responsibilities to the principal, it may move to suspend the POA and establish a conservatorship. It is important to keep in mind that, unlike conservatorships, POAs are not supervised by the court, so if you believe an attorney-in-fact is committing power of attorney abuse, it will be up to you to bring the matter to the court’s attention.

Keystone’s probate attorneys have worked on numerous cases related to power of attorney and conservatorship abuse. If you suspect either has taken place, get in touch with a probate lawyer right away to prevent further harm from befalling your incapacitated loved one.

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Advance Health Care Directives as an Alternative to Conservatorship

An Advance Health Care Directive (AHCD) is a another type of estate planning document that can serve as an alternative to conservatorship if it had been executed by the incapacitated adult prior to their incapacitation; however, as you might have guessed, an AHCD only grants the health care representative authority to make medical decisions on behalf of the incapacitated adult, so if the adult in question needs help with their finances as well, they likely will need a conservator of the estate.

An Advance Health Care Directive consists of a medical power of attorney (which nominates a health care representative to make medical decisions on another adult’s behalf) and a living will (which provides instructions for end-of-life care). 

If an AHCD is valid, it could serve as a viable less restrictive alternative to a conservatorship of the person, especially if the adult who executed the AHCD can tend to their essential daily needs of food, clothing and shelter on their own. If the adult in question is severely incapacitated and in need of around-the-clock care, a conservatorship of the person may be the better option. 

In sum, when examining the differences between a conservator vs. a health care representative, you’ll find that a conservator of the person has more authority over the life of the incapacitated adult than their health care representative. While a conservator of the person does manage the conservatee’s health care, they also are responsible for such things as arranging the conservatee’s housekeeping and clothing — which do not fall under the purview of a health care representative.  

Trusts as an Alternative to Conservatorship

A trust can serve as another alternative to conservatorship.

A trust is a type of estate planning document in which the creator of the trust, called the settlor, entitles a third party, called the trustee to hold title to and manage the assets and property held by the trust for the benefit of the trust’s beneficiaries

When trusts are created, settlors generally name themselves as the sole trustee and beneficiary, while also nominating a successor trustee to take over management of the trust once they become incapacitated or die. It is the trustee who is responsible for ultimately making trust fund distributions to beneficiaries. 

In terms of differences between a conservator vs. trustee, a trustee only has authority over the assets held by the trust, whereas a conservator of the estate can generally exercise full control over the conservatee’s finances to the extent the conservatee’s assets are held by the conservatee individually. Every financial transaction a conservator of the estate makes using the conservatee’s finances must provide benefit to the conservatee. 

If an incapacitated adult had executed a trust but failed to transfer the titles to most of their assets into the name of the trust, the incapacitated adult may still need a conservator of the estate, since the trustee would not be authorized to oversee the entirety of their finances. The incapacitated adult would likewise need a conservator of the person, since the successor trustee would have no authority over their personal affairs.

In sum, if most of an incapacitated adult’s assets are held by their trust, their trust could most certainly serve as a viable alternative to a conservatorship of the estate; however, if the incapacitated adult is also having trouble managing their personal lives and/or own substantial assets outside of their trust, they likely will need a conservatorship of the person or both a conservatorship of the person and estate.

Still Have Questions About the Alternatives to Conservatorship? Our Conservatorship Attorneys Are Standing By to Help

Deciding whether to choose a conservatorship vs. power of attorney, a conservator vs. trustee or a conservator vs. health care representative can be a daunting task. Since Keystone’s attorneys dedicate their practice to probate matters only, they cannot help with executing estate planning documents such as powers of attorney, trusts and Advance Health Care Directives, but they can work with you to establish a conservatorship over a loved one or litigate abuse perpetrated by conservators, trustees, attorneys-in-fact or other fiduciaries. 

If you have questions about the difference between power of attorney and conservatorship or about how best to protect the incapacitated adult in your life, our probate attorneys can assist. Call us today to schedule your free consultation.