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Who Will Act as My Conservator?

When an elderly parent becomes unable to make his or her own decisions regarding finances and medical care, an adult child or other person must assume the role of conservator. Through proper estate planning, a person can nominate, in advance, a conservator to act should the need arise. In the absence of such planning, however, it often falls to a probate judge to determine which person will act in the conservatee’s best interests.

Under California law, if a person does not nominate his or her own conservator, the probate court has the “sole discretion” to appoint one. The court must give preference, in descending order, to the person’s (1) spouse or domestic partner, (2) adult child, (3) parent, (4) sibling, or (5) any other person who offers to serve as conservator. When two or more people seek to act as a conservator, the court will follow the preference order only if the judge determines each petitioner is “equally qualified.”

Sibling Disagreement Leads to Outside Intervention

A recent California appeals court decision illustrates this law in practice. This case is only discussed here for informational purposes and should not be construed as legal advice. The case involved two siblings who opposed the appointment of an unrelated professional fiduciary to serve as their mother’s conservator.

Ruth Willett, a resident of San Diego, suffers from dementia. Following the death of her husband, Willett moved out of her home and into an assisted living facility that provided specialized care for dementia patients. Willett’s children, Stephan Willett and Jolaine Hatter, agreed their mother needed a conservator for both her person (to make medical decisions) and property (to manager her finances). Stephan Willett, who lives in Virginia, initially petitioned a California probate judge to name him temporary conservator. Willett claimed his sister exercised “undue influence” over their mother, and he feared she would attempt to move her to a different assisted living facility outside of San Diego.

Hatter opposed her brother’s petition. She said her mother previously signed estate planning documents designating her as conservator. The probate judge appointed an attorney to independently represent Ruth Willett. The court asked each of the parties to recommend an independent conservator and psychiatrist for Ruth Willett. Only Willett’s court-appointed attorney complied with the court’s order, and on her advice the judge appointed Gerry Donelly, a professional fiduciary, to serve as temporary conservator.

The court-appointed psychiatrist subsequently confirmed that Ruth Willett suffered from dementia and bipolar disorder and required a permanent conservator. The psychiatrist noted that Willett lacked the mental capacity to enter into contracts or make estate planning documents. This eliminated Hatter’s claim to the conservatorship based on her mother’s previous nomination. Because the children ultimately could not agree on who should act on their mother’s behalf, the court retained Donnelly as permanent conservator. Stephan Willett appealed the judge’s decision. The court of appeals affirmed, however, noting the trial court acted well within its discretion.

Cases like this emphasize the importance of getting your affairs in order before it’s too late for you to act. Never assume your family will agree on the best course of action with regard to your financial and medical care. Contact the Law Office of Scott C. Soady today if you have any questions or concerns.

Related Links
How Making an Estate Plan Can Prove Your Mental Competency
The Problem of Dueling Conservators

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