San Diego Estate Planning Lawyer Blog
Petitioning the probate court to be appointed the conservator of someone’s person or estate may be necessary when an individual has become legally incapable of taking care of himself or unable to handle his finances, and has not created a durable power of attorney for finances. The majority of the time, conservatorships are not contested and granted upon a showing to the court that the proposed conservatee is incapacitated and unable to manage their personal or financial affairs. Sometimes, however, conservatorships are contested.
Family members may disagree as to who should be the conservator. Sometimes the proposed conservatee has a lawyer and wants to contest the granting of the conservatorship. Other times the contest arises simply because of miscommunication among family members who may not understand what it means for an individual to be conserved.
Contested guardianships are similar to conservatorships in the sense that the majority of the time they are not contested. Like conservatorships, family members can fight about who would be the best guardian for minors who have lost their parents or minors whose parents cannot take care of them. If there is no agreement, then a trial may become necessary before a probate judge.
Both contested conservatorships and contested guardianships can be emotional and sometimes embarrassing when they play out in a courtroom. The courtroom can be a battleground for the “he said- she said” and avenging of perceived wrongs, whether large, small, real, or imagined. Often there is not a “winner.” The judge will determine who should be the conservator or guardian but no one comes out a “winner” when the family has to go through such turmoil.
Both of these types of cases often can be resolved with mediation. Mediation provides an opportunity for all parties to express their opinions, feelings, etc. and a mediator can often guide the parties to remember that the real issue is the welfare of the conservatee or the minor. Mediation is not done in a courtroom but in a neutral setting, usually the mediator’s office. It is voluntary and confidential with the goal being for all parties to express themselves and resolve the conflict between them.
The estate planning lawyers at Scott C. Soady, A Professional Corporation can assist you with your contested conservatorship or guardianship matter, whether it be through mediation or a trial in the probate court. Call us if you would like to schedule a complimentary consultation.