A Living Trust May Avoid a Conservatorship.

A Living Trust can be used to hold title to your real property. Also, in a Living Trust, you appoint a Successor Trustee to manage your Living Trust in the event you are unable to do so by reason of death, incapacity or personal choice.

If you become incapacitated, your Successor Trustee will be able to privately manage your assets in your Living Trust in accordance with your instructions you have provided in the Living Trust.

Thus, a properly prepared and funded Trust can enable you to avoid a conservatorship proceeding over your estate. Compared with the cost of a conservatorship proceeding, a Trust can be very attractive.

Sounds so simple, you know.

A conservatorship is a guardian over an adult. It is very costly and time-consuming. It can also be very scary to the individual placed in the conservatorship. You become a conservatee and lose control over your assets.

But if you have the your largest asset, your home, in your Living Trust then it can be managed by your chosen loved one. Also, if you have a Durable Power of Attorney in Place and Advance Health Care Directive -- all potential reasons to obtain a conservatorship will have been addressed.

Estate planning is truly important.

Cross References:

For more information about conservatorships, read the Guardians for Profit series reported by the Los Angeles Times.

Comments

[Mollie N]

Years ago my widowed aunt had all the documents you mention above drawn up by her attorney (who recently retired). Her Living Trust was at that time, and remains, fully funded with all her assets including her house.

She granted PoA and Successor Trusteeship to her only daughter, to be succeeded by her grandson if her daughter was unable or unwilling to perform those duties. She deliberately omitted her son's name from all but her Trust; he will share equally with his sister in their mother's estate. All of the documents were reviewed by my aunt's current attorney earlier this year and deemed valid by him.

Her daughter has, at her mother's request, been handling my aunt's finances for about three years. An accountant reviews my cousin's ledger and receipts annually, and prepares my aunt's income tax. My aunt is very aware of her finances, and is very pleased with her daughter's meticulous and honest handling of them.

Unfortunately, my aunt's legal directives and Trust are not enough under California law to protect her from her greedy son. He decided last year to move into her home with his wife, uninvited. After failing to get his mother to give him DPA, he filed for Conservatorship of her Estate and Person about a month ago. On the petition, he made claims about his mother's health and mental condition that were very misleading and/or unproven.

My aunt was 'rescued' from her son and daughter-in-law's clutches by her daughter, and has been living with her and her son-in-law since she learned of the conservatorship filing. After being served with the notice she became so depressed she told me and other relatives she wished she was dead and threatened to shoot herself. Thankfully, under her daughter and son-in-law's care, and with outstanding support from other family members, her fighting spirit has returned.

My aunt's attorney informed her she would have to attend a hearing to determine whether her son would be awarded conservatorship.

The court appointed an attorney and a state investigator for my aunt. Neither she nor her daughter were informed that she was entitled to an attorney of her choosing. (I learned that through research on the internet, but by then it was too late.)

The investigator said that if my aunt's legal documents had been known to the court, the judge would have denied the petition for conservatorship and not set a date for a hearing. But by then it was too late to stop the legal train. How are people who know nothing of conservatorship until they are served notice by the court supposed to know those things? From bitter experience, in this case.

The appointed attorney was nice to my aunt so she decided to stick with him. She was told that the only possible way to fight Conservatorship by her son was to have her daughter cross file for Conservatorship. My cousin did that through an Elder Law attorney. She is paying her own considerable legal expenses.

By the time this is over, my aunt's financial assets will be nearly depleted by legal fees. She will have to sell her home and invest the money to replace the lost income. Her daughter (and son-in-law) will be financially strapped by having to pay an Elder Law attorney to represent her.

The EL attorney said that when Conservatorship is contested between siblings, the judge usually appoints an "outside" Conservator. This, of course, is greatly upsetting to my aunt. She does not want a stranger to have power over her Estate and Person, much less pay one when her daughter already has that and doesn't take compensation for it. The arrangements she has now are completely satisfactory to her. She wants to continue living with her daughter and son-in-law. She wants her daughter to continue handling her financial affairs. But those choices will probably be taken away by the court.

The attorneys say that the State does not have the resources to monitor conservators, which is one reason for so much abuse.

Where is the justice in a stystem that can overturn a person's directives stated in documents created by an attorney and properly witnessed, especially when there is no evidence whatsoever of abuse of the person or her finances and the person is still reasonably mentally and physically competent?