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Distinguishing Between a Conservatorship and a Probate Estate

A conservatorship is a court-ordered relationship whereby one adult assumes responsibility for the finances and/or personal care of another adult. In California, conservatorships fall under the same law as probate estates, that is, the estates of deceased individuals. Indeed, the same branch of California’s superior courts hear probate and conservatorship matters.

Once a person under a conservatorship dies, the conservatorship also terminates, and a separate probate estate must be established. This may lead to some confusion, as a recent decision by the California Court of Appeals illustrates. This case is discussed here for informational purposes only and should not be treated as a comprehensive statement of California law on the subject.

Borden v. Dise

This case began with two sisters, Bessie Moore and Catherine Bradley, both of whom are now deceased. In 2004, the Los Angeles Superior Court granted Moore’s petition to establish a conservatorship for Bradley. Among other issues, Moore believed her sister had been defrauded out of some real property she owned. Once appointed conservator, Moore hired attorney Alex Borden to sue the persons responsible for the fraud.

The litigation succeeded in recovering the property. The court awarded Bradley’s conservatorship estate over $300,000 in damages and costs. Unfortunately, the defendants never paid the judgment, which included approximately $60,000 in attorney’s fees owed to Borden.

Bradley died in 2007, terminating her conservatorship. Borden advised Moore that she needed to file a final accounting with the probate court to formally close the conservatorship. Borden further advised that one of the properties belonging to the conservatorship estate was subject to a foreclosure proceeding. That made it imperative that someone open a probate estate in order to prevent the foreclosure.

Moore released Borden as the attorney for Bradley’s conservatorship estate so that he could seek appointment as administrator of Bradley’s probate estate. Borden had standing to open the estate as one of its creditors (as he was still owed the $60,000 in attorney’s fees from the original litigation). The court made the appointment, and Borden proceeded to settle the probate estate by early 2010.

In the interim, Moore closed her late sister’s conservatorship estate. Moore herself then passed away. Veronica Dise, acting as personal representative of Moore’s estate, then filed objections to Borden’s final account for the Bradley probate estate. Additional litigation followed.
The probate court ultimately approved Borden’s account. The Court of Appeals affirmed that decision. Dise’s objections proved meritless. It’s worth noting, however, that the appeals court said that there was no reason that probate and conservatorship proceedings related to the same person could not take place at the same time. Dise argued Borden should not have been allowed to open Bradley’s probate estate before her conservatorship estate was formally closed. The court said that was incorrect.

Avoiding Confusion

This type of confusion can be avoided through proper estate planning. A power of attorney can designate a person (or persons) to supervise a person’s financial affairs when he or she is unable to do so. Similarly, a last will and testament can appoint a personal representative to take charge of a person’s estate after they die. In tandem, these documents can make it clear to a probate court who you wish to manage your affairs. In many cases, you may wish to name the same person as a conservator and a personal representative. Whatever your situation, it’s important you consult with an experienced California estate planning attorney who can advise you on all of your legal options. Contact the Law Office of Scott C. Soady in San Diego today if you have any questions.

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