Modern Estate Planning Blog

Dear Heather:

My neighbor is a gentleman in his late 80’s and has been like a member of our family for as long as I can remember. Every single one of us refers to him as “uncle” and because he has no family, we have included him in ours.

When my parents passed away, I moved into my childhood home and began to enjoy regular outings and dinners with “Uncle Joe”. Over the past few months I have noticed big changes in Uncle Joe and when I return recently from a lengthy business trip, it became clear that he needs help.

I fear that he can’t continue to live independently and manage his assets. He has no will, power of attorney or healthcare proxy.

My question is whether I should begin a conservatorship proceeding to have someone appointed to take care of Uncle Joe and his assets. What happens when there are no family members or friends who can be appointed conservator of him?

Answer:

While every situation is different, when it becomes obvious that a person is likely to suffer harm to his or her personal or financial needs because of an inability to take care of themselves, it is time to begin conservatorship proceedings. Based on your opinion of Uncle Joe, it appears it would be appropriate to begin those proceedings.

Before beginning the process, you need to decide which type of conservatorship Uncle Joe needs. A conservator may have authority to make decisions for a person, estate or both. A conservator of person would allow someone to make decisions about Uncle Joe’s medical treatment, living arrangements and day-to-day needs. A conservatorship of estate allows one to make decisions about assets including managing finances, and if the court approves, may apply for government benefits or begin estate planning.

Once you’ve decided which type of conservatorship would be most appropriate, you will file a petition with the court seeking appointment of the conservator. A Citation and Notice of the hearing is required to give notice to Uncle Joe, other interested parties, and Uncle Joe’s relatives in the second degree (a court requirement which may be time consuming), that a hearing will take place before a judge to determine whether or not Uncle Joe lacks the abilities the conservator would handle for him. At the hearing, you will be the petitioner and your uncle will be referred to as proposed conservatee.

When you file the Petition the court will set a date for the hearing and will appoint a court investigator to assess your uncle’s situation. The investigator will meet with your uncle to evaluate his ability to make decisions and his financial and personal care. That person may also speak with you, friends, healthcare providers or others to learn more about his situation. The investigator will then prepare a report for the court which includes the recommendation regarding the placement of a conservator and whom should be the conservator (you or a court-appointed person). The court appointed investigator would be paid out of your uncle’s assets.

You, your uncle, the investigator and possibly others will testify at the hearing to determine conservatorship. Afterward, the court will decide if a conservator is appropriate. If your uncle is found to be incapacitated, a conservator will be appointed and the court will specifically outline the types of decisions that conservator will be able to make.

The court requires that conservators complete a training course, and may be required to post a bond depending on your uncle’s assets. The conservator will visit your uncle at least quarterly making decisions on his behalf, and will be required to file annual reports detailing all financial activities and updates as to your uncle’s condition.

The court has the authority to name a conservator if you do not have a specific person in mind and will appoint one from a list of qualified individuals. Court appointed conservators are compensated for their services from your uncle’s assets.

Depending on the county, it takes one to two months between filing the petition and the hearing. Although delays are common and there is a considerable amount of time, effort and money required prior to the conservator being placed.

It seems as though your uncle did not make any plans regarding his estate, so you may have no option but to have a court intervene. If he had properly drafted a Power of Attorney and a healthcare proxy or trust, a conservatorship proceeding may not be needed.

As always, I encourage my clients and readers to contact our Sacramento County conservatorship and estate planning law firm at (916) 241-9661 with any questions regarding their personal estate plans or to ask questions about how to best educate your loved ones about estate planning.