Conservatorship is the Court process for taking control of an adult’s finances and personal care in California when there is no other planning in place—such as a Trust or Will. (Some states refer to it as “guardianship,” but in California guardianship only applies to minors–conservatorship is for adults).
Conservatorships are supposed to “conserve” a person’s estate (as in “to keep in a safe or sound state…especially to avoid wasteful or destructive use of…” as defined by Merriam Webster). Yet, even a routine conservatorship proceeding (one that is not contested by family members) is expensive to initiate, time-consuming to create, and burdensome to maintain. It hurts less to simply hit yourself in the head with a hammer than to go through a conservatorship proceeding.
But when a conservatorship proceeding is contested by dueling family members wanting to be conservator, now the pain really begins. And the costs (both financially and emotionally) are downright excessive.
Conservatorship proceedings start with a petition filed by a family member reciting why the proposed “conservatee” (the person in need of help) can no longer manage his or her personal and financial decisions. Then there are loads of other documents that go with the initial petition.
If other family members disagree with the conservatorship filing, or want a different person appointed as conservator, then they must make an objection to the original conservatorship petition and then file their own petition for conservatorship (referred to as a “competing” petition). The Court appoints an attorney to represent the proposed conservatee, and the matter is ultimately set for trial and tried before the court to determine whose petition will win.
Sounds easy enough right? But what this little overview fails to convey is the amount of time, money, and emotional toll that goes into a lawsuit of this nature. Conservatorship cases are difficult to begin with because there is usually an elder adult caught in the middle; as opposed to Trust and Will contests, where the dispute revolves around a pile of assets. The effort to conserve a person’s estate often results in the excessive waste of that estate instead.
Of course, the Court acts as a safeguard to the estate and will refuse to reimburse the parties for their litigation fees and costs if they do not directly benefit the conservatorship estate (or even if they do benefit the estate, the reimbursement will be refused if the estate cannot afford it).
The end result is that no good deed goes unpunished. The parties bear the costs, the estate bears some too, and the family feels bruised, wounded and far worse from the wear of conservatorship litigation. The alternative is to have some plans in place (such as a California Trust and related powers of attorney) so that conservatorship can be avoided. All too often good planning is neglected and the penalty of such neglect is facing the excesses of conservatorship in California.