When an elderly parent becomes unable to care for himself, there may arise serious disagreements among children and other family members over the best course of action. Careful estate planning on the parent’s part before he or she becomes unable to express his wishes is always best. Failure to plan for such circumstances can lead to lengthy, costly and emotionally divisive litigation.
California law provides two main avenues for probate court intervention in the affairs of adults who no longer have the capacity to make decisions. The first thing a court can do is name a conservator of the estate, someone to oversee the person’s financial affairs, pay their bills, sell their property, and so forth. A related but separate act is the appointment of a conservator of the person, who oversees the living conditions and medical care of the person. Both conservatorships may be combined in a single person but require separate legal proceedings.
Conservatorships Don’t Always Settle Issues of Care
Conservatorships can prove problematic on many levels, especially when relatives express different ideas about what is best for their loved one. Recently a California appeals court reviewed a conservatorship involving Alfred Priess, a man in his mid-80s who suffers from dementia. Five years ago, Alfred’s daughter, Ann Fiedler, decided to move her father out of his house into a Newport Beach nursing home. Ann’s brothers, George and Jeffrey Priess, disagreed with this decision and personally removed Alfred from the nursing home. He then lived with George Priess and his family in Mississippi.
After this sudden move, Fiedler petitioned a California probate court to name her conservator of the person of her father. George Priess filed a similar petition with a Mississippi court. Because Fiedler filed her case first, the Mississippi court deferred, and the California court named Ann conservator. However, once Ann was named conservator, she took no action to return her father from Mississippi to California. Nor did she comply with any of the court-mandated requirements of a conservator, such as filing a plan for her father’s long-term care.
Alfred was cared for by his son in Mississippi for three years when Fiedler suddenly appeared, declared her father’s living conditions were unsatisfactory, and immediately flew him back to California, where he was placed back in a nursing home. George Priess then asked the California probate court to remove Fiedler as legal conservator of Alfred’s person. (A professional financial manager had separately been named as conservator of Alfred Priess’ estate.)
The probate court held a hearing and determined that Fiedler’s concerns about her father’s living conditions in Mississippi were baseless. Noting that she had “completely failed” as conservator herself, the court said Fielder could not now claim it was in her father’s best interest to move him away from a loving family and into a nursing home with strangers. The court removed Ann as conservator. On February 6 of this year, a unanimous three-judge panel of the California Court of Appeals in Los Angeles upheld that decision.
Avoiding Conservatorships Through Estate Planning
The opinion in this particular case is “unpublished” which means that it technically cannot be relied upon as a statement of the law. However, reading the full opinion is still a useful way to understand some of the legal issues and arguments made in these matters.
Importantly, you can avoid ending up in Alfred Priess’ situation, caught between litigating family members, by working with an experienced California estate planning attorney to devise a power of attorney (naming someone to manage your finances if you’re incapacitated) and a living will and related health care directives (naming someone to make medical and living arrangements for you). Don’t rely on others, including the courts, to make these important decisions for you. Contact the Law Office of Scott C. Soady today if you have any questions about conservatorships and how best to avoid them.