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Modern Estate Planning Blog

Elder Law & Special Needs Planning

Ask Heather - I have been wanting to file for conservatorship of my mother. She has Alzheimer’s.

September 21, 2011

I have been wanting to file for conservatorship of my mother. She has Alzheimer’s. She was diagnosed four years ago and is not mentally aware enough to change her Power Of Attorney, which was set in 1992. The sibling who has POA doesn’t want to see her while she’s ill and doesn’t make any decisions governing her care, but won’t give up control voluntarily. I moved in with her to take care of her 13 months ago. Do you think I have a shot?

I am sorry to hear your mother has Alzheimer’s. From personal experience with my father-in-law, I know it is one of the most difficult experiences a family can go through. Love her for who she is now and take each day as it comes.

It is not uncommon for a family member to be named as POA and not do their job, yet not want to relinquish control. This is an unfortunate situation though because your sibling is forgetting he is in a position of responsibility and he is not keeping mom’s best interests first.

It is not clear from your question what areas the POA covers – financial issues? Healthcare? Both? If the POA names you as an alternate agent, as an alternative to conservatorship, you may want to bring a court action to remove your sibling as POA. An experienced estate planning attorney will be able to decipher the POA for you.

Conservatorship may be a route to consider at this time. In CA one of the items on the Petition for Conservatorship asks about other planning tools that are in place and why they cannot be used. You will want to discuss the POA there, but be aware that your sibling will be reading this and will have an opportunity to object to you as conservator. All relatives in the second degree are required to receive notice and a copy of the Conservatorship petition. Conservatorship is a very public process which is expensive, time-consuming and requires continuing court supervision, accountings, investigations and oversight by the court.

You should seek the advice and assistance of a qualified estate planning attorney who is also experienced in the area of conservatorships.

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My wife and I have some quite large complexities both in our individual preferences and the construct of our life. When planning for our trust, Heather took the time to hear EVERYTHING we said. The trust which Heather formed for our family took all our concerns into account. When everything was said and done, we received a trust which, by design, is extremely personal to our circumstance. We also are delighted to have Heather to be part of our team of advocates to help when the time comes.

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