San Diego Estate Planning Lawyer Blog
A probate conservatorship often becomes necessary when an individual cannot take care of himself or handle his own finances. A petition has to be filed in the San Diego Probate Court, usually by a family member, seeking to become a conservator of the person or the estate. The conservator of a persons makes decisions about where the conservatee will live, health care, food and recreation. A conservator of the estate is the individual handling the financial affairs of the conservatee. Establishing a conservatorship is costly, sometimes contentious, and often not necessary.
There are several ways that a conservatorship can be avoided. One way a conservatorship can be avoided is to create a living trust. When you create a revocable living trust, you designate someone to act as successor trustee of your trust if you become incapacitated. You also execute a durable power of attorney and health care documents which designate someone you trust to act as your agent in case of incapacity. Even if you don’t have a trust, you should obtain a durable power of attorney and health care directive. Young adults, newly married individuals, and anyone else that can’t afford a trust or doesn’t have the assets to warrant a trust, should at least execute these two documents. These documents prepared in advance of any incapacity, can avoid court intervention.
If the only reason a conservator is needed is for a family member to have access to social security, disability benefits, etc. a family member can ask the agency to allow them to act as a representative payee and therefore a conservatorship is not needed. Federal agencies which allow this to be done are the Social Security Administration, VA, and Dept. of Defense. You must explain why a payee representative is necessary and provide a doctor’s statement explaining the incapacity.
California Probate Code §3100 also may be used in some cases. This section allows a spouse that does have capacity to petition the probate court to be able to make a decision or transfer a community property asset for the spouse that lacks capacity. Often this arises in the context of qualifying for Medi-Cal.
If you need to plan in advance for incapacity, contact us at Scott C. Soady, A Professional Corporation. We can help you understand if there are alternatives to avoid a conservatorship or if conservatorship does become necessary, we can assist you with filing the necessary paperwork to be appointed conservator of the person or the estate.