In the United States, all adults are considered capable of handling their own affairs unless a Court determines otherwise. In California, this legal arrangement is called a conservatorship. Conservatorships are established for impaired adults, most often older people. Adults who are developmentally disabled or the victims of a catastrophic illness or accident also may have a conservatorship.
When Conservatorship is Necessary
Establishing a conservatorship is a formal legal proceeding and involves several steps. Some adults who are concerned about possible future mental and physical incapacity decide to establish a power of attorney or a trust, in part so they can avoid the court action. They choose an individual or an institution to make decisions for them if they become impaired. These are private arrangements and must be made while the person has full mental capacity. In California, courts do not routinely monitor powers of attorney or trusts. Most people do not make these arrangements probably because it is difficult to think about becoming incapacitated mentally or physically. But it happens, especially to people over 75 years of age. For those who have not made prior arrangements, or if the person handling the power of attorney or trust is incapable or dishonest, a conservatorship may become necessary.
After a Conservatorship is Established
Management of Wealth and Property
When a conservatorship is established, the Probate Court will require that a bond be obtained for the liquid assets and annual income in the person’s estate. Liquid assets include bank accounts and stocks. A bond is like an insurance policy. The Court will monitor the finances and property of the person in conservatorship as well as his or her welfare. The law requires that an Inventory and Appraisal of all assets be filed within 90 days of the appointment of the conservator.
One Year Review
One year after the appointment of the conservator and every two years thereafter, an accounting of the assets, including the income and the expenditures must be filed with the Court. The accounting is reviewed in detail by a probate examiner. An investigator personally interviews the individual in conservatorship periodically and determines if the conservator is acting properly.
Those Most in Need of a Conservatorship
Conservatorships affect mainly older people, especially those over 85 years of age. Coincidentally, the fastest growing age group in the United States is the one over 85 years of age. In California, that age group will increase by 143 percent between 1990 and 2020. Some counties will experience even higher rates, up to 400 percent. The influence of the 85 and older age group will emerge most strongly between 2030 and 2040 as the first of the baby boomers reaches 85 years of age. With the right genes, healthy living, and luck, most people will escape being incapacitated. However, many of us will have impairments and will need help with daily living.
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Why a Durable Power of Attorney?
Daniel Leahy, Esq. is a powers of attorney lawyer who will help you identify the best candidate to be designated as a representative, usually a spouse, domestic partner, friend, or relative. We then draft a clearly worded document stating under what circumstances that representative has power of attorney.
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