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Conservatorships/Powers of Attorney

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Santa Monica Conservatorship Attorneys

Los Angeles Conservatorship Lawyers Since 1979

 

A conservatorship is a legal proceeding wherein a third party (usually a spouse or relative) is appointed to take care of a disabled person's medical and/or financial needs. Typically, these are granted when an individual cannot care for him or herself physically or financially. For example, individuals who suffer from dementia or Alzheimer's disease often require the appointment of a conservator to ensure that their bills are paid, their financial affairs are looked after, and that they are properly cared for medically.

A conservatorship can be "temporary" or "permanent." However, it can always be terminated if the person requiring the supervision recovers to the point where he or she can handle the medical or financial affairs without the assistance of a third party.

If you believe your loved one is in need of a conservator, please contact Cooper-Gordon LLP to schedule an initial consultation with an experienced conservatorship lawyer.

A Conservatorship for the Person and the Estate

Usually, if a person needs a conservatorship for his or her personal needs, that person also needs one for his or her "estate" (financial matters). Sometimes, a catastrophic incident occurs, such as a stroke or an accident, which renders the proposed conservatee incapacitated. In other cases, a conservatorship is necessary due to old age or mental illness.

As the disabled person's spouse, relative, heir or friend, you may contact our attorneys with observations to help make your case for conservatorship. These observations include unpaid bills, giving money away to strangers, not taking care of themselves, or failing to keep medical appointments. We will help determine if you have enough evidence to pursue a conservator appointment.

The Conservatorship Process

The general conservatorship process is as follows:

  • An application is made to the court for the appointment of a conservator.
  • The court usually sends out an investigator to provide testimony on whether a conservatorship is appropriate.
  • A hearing will be held.
  • If a conservator is appointed, he or she must file an inventory, take charge of the conservatee's estate and medical needs and file regular accountings with the court.

Our firm can assist the potential conservator by explaining the process and assisting him or her through the legal proceedings. We also help prepare an inventory and regular accountings as required by the court.

Powers of Attorney

A power of attorney is a court document that notarizes a representative to handle the medical and/or financial needs of an incapacitated person. But, a power of attorney is more than a simple form. Usually, the person in need of a power of attorney creates the document and appoints a representative before the services are needed. Everyone's financial circumstances and family situations are different, and one should consider these differences carefully before drafting a general power of attorney.

There are two primary types of powers of attorney:

  • A special power of attorney grants the agent some powers and limits others. The document should explicitly state the powers given to the agent and under what circumstances those powers can be performed.
  • A general power of attorney gives an agent nearly unlimited control over a person's financial or healthcare decisions. It covers most circumstances and affairs of the person needing care.

A power of attorney and conservatorship are similar in that a representative is authorized to handle the affairs of another person. However, there are some clear differences, the primary one being the level of involvement of the court and appointed representative.

In a conservatorship, the court appoints a third party to care for another person, establishing a fiduciary relationship. The conservator essentially has complete control over the person's medical and/or financial needs. The power of attorney is a document drafted by the person in need of care and his or her lawyer. The court is not involved. In addition, the powers granted to the representative, and when the representative can use those powers, are limited by the terms of the document.

At Cooper-Gordon LLP, we can help you understand the differences between a conservatorship and power of attorney, and the advantages and limitations of each.

Set forth below is an article by Cooper-Gordon LLP Partner Avery M. Cooper explaining the various facets of Powers of Attorney.

POWERS OF ATTORNEY: The Good, the Bad and the Ugly (Part I)

Most of the readers of this article are familiar with the general concept of a Power of Attorney. When properly executed, a Power of Attorney vests a person (designated as an “Attorney-In-Fact”) with various powers. Powers of Attorney come in all forms, shapes and sizes. By way of example, one can create a Power of Attorney for limited and very specific purposes such as, for example, signing documents to close an escrow. Similarly, Powers of Attorney can be extremely broad, allowing the Attorney-In-Fact to do everything from signing Tax Returns to controlling bank accounts. These are called “Limited” or “Special” Powers of Attorney.

The advantages of a Power of Attorney are, to have a person available to perform acts for you when you are either unavailable to perform them or, perhaps as a result of injury or illness, unable to do so. By way of example, if you are out of the country when a particular act needs to be performed, it is not uncommon to grant a person a limited or special Power of Attorney to perform a particular act that may be time sensitive.

On the other hand, for a person who has been involved in a catastrophic accident or has suffered a debilitating illness or loss and who cannot handle their own affairs, at least for a limited period of time, and if a Power of Attorney has been duly prepared, this would allow the Attorney-in-Fact to take over the incapacitated person’s finances and make sure all their bills are paid and their financial affairs properly managed. Such a document is called a “General Durable Power of Attorney.”

There is also a Power of Attorney for Health Care (that in California is called an Advance Health Care Directive) which empowers someone to make difficult medical and end-of-life decisions for someone else. These are entirely different documents and should not be confused with General and Special Durable Powers of Attorney, which deal only with financial issues, as opposed to healthcare issues.

Powers of Attorney when properly utilized can be very beneficial. For example, if a proper Power of Attorney is in place, a formal, time-consuming and expensive legal proceeding to obtain a Conservatorship over the Person and/or Estate can usually be avoided. However, Powers of Attorney can also be abused. Imagine empowering someone to handle all of your bank accounts or your life savings in other assets. Is that person trustworthy? Will they take advantage of the situation? Obviously, this is a lot of responsibility for a person to have at their disposal.

General and Special Durable Powers of Attorney should only be granted for very specific purposes and to very responsible persons. Even family members can take advantage of the situation. In a follow-up article to this I will discuss other aspects of this uniquely beneficial, yet troublesome concept.

Contact Us

For a consultation with a Santa Monica conservatorship lawyer at Cooper-Gordon LLP, call us at 800-561-6322, or contact us online. We offer initial consultations at a reduced rate.