A conservator is appointed by the court to care for and protect a person who is deemed unable to care for themselves. Among the conservator’s responsibilities are managing the conservatee’s health and wellbeing as well as preserving their assets. While most people’s lifestyles and fortunes are decidedly different from Ms. Spear’s, the problems she had are a cautionary tale for all of us who do not name a durable power of attorney for financial matters and an Advance Health Care Directive. In the absence of these legal documents reflecting your wishes should you become incapacitated, family members must petition a court to appoint a conservator to manage your well-being in the event you are incapacitated. Yet, as in Britney Spear’s case, some who are under the direction of a conservatorship have no desire to be there.
What Does Conservatorship Determine?
Conservatorships in California are protective proceedings filed in the Probate Court. Generally, conservatorships guide the life decisions of those in comas, suffer advanced forms of dementia, or are experiencing other serious injuries or illnesses. A “conservator of the estate” guides financial matters while a “conservator of the person” is in charge of personal and medical decisions. In the case of Ms. Spears, two people (her father and her lawyer, who had later resigned) were acting as conservators, and financial institutions and other attorneys have involvement. One person may be in charge of both estate and personal/medical conservatorships in less complex circumstances. Both types of conservators follow court supervision and are held accountable to that court. Conservatorships are expensive to start and expensive to maintain.
This court supervision acts as a powerful safeguard preventing conservators from mismanaging property or otherwise taking advantage of those in a conservatorship. Periodic detailing of conservator actions through reports to the court provides this oversight. Frequently, probate courts will require the conservator to seek permission before making major decisions such as terminating life-support or requiring medications (in the case of medical and personal conservatorships), or selling real estate or other property (in the case of a financial conservator). Additionally, a financial conservator must often post a bond as an insurance policy protecting the conservatee’s estate from mismanagement.
What Issues can Arise with Conservatorship?
Britney Spears stated repeatedly that her conservators are unnecessary. They refused her permission to marry and have more children while financially forcing her to pay exorbitant conservatorship and legal fees and take psychiatric medications she did not want to take. She also stated that she was required to use a court-appointed attorney who did not communicate how to end her conservatorship or hire an attorney she believed had her best interest at heart.
Some conservatorships work remarkably well because the conservator is competent and trustworthy. Yet conservatorships are most often expensive and can be avoided with proper estate planning by adequately preparing a durable power of attorney for finances and an Advance Health Care Directive before a physical or mental health crisis occurs. These legal documents provide a template for decision-making based on your wishes by the designated agent(s). In the absence of these documents, the court will most often appoint a conservator who is a relative that is available to serve, such as a spouse or adult child.
Sometimes this situation leads to great heartache when an estranged relative, like Britney Spears father Jamie, is given the reins as conservator and will not let go. Given that Ms. Spears has a multi-million dollar estate, the court believed additional professionals acting on Britney’s behalf through the conservatorship were suitable. Ms. Spears contended that after a thirteen-year conservatorship, the conservatorship should be dissolved as she was stable, could work, and provided for her family.
A conservator will act until the probate court issues an order ending this responsibility which usually follows:
- The conservatee’s death
- The conservatee no longer requires this level of assistance
- In the case of a financial conservatorship, the assets are all spent
- The conservator can no longer handle the responsibilities or resigns
- The court removes the conservatorship due to a successful legal challenge by the conservatee
The process is simple to avoid an unwanted conservatorship. Meet with an elder law attorney to draft your durable power of attorney for financial matters and your Advance Health Care Directive to reflect your wishes should unforeseen physical or mental health illness befall you. You should also consider preparing a living trust to avoid probate. Your chosen representatives will be those you trust to exercise your will if you are unable, and you will have peace of mind knowing that future decisions will reflect your wishes. Please contact us today at 877-585-1885 to schedule a free consultation to discuss your legal matters.
Thanks for reading.
Christopher E. Botti, Esq., Certified Specialist in Estate Planning, Trust and Probate Law