Frequently Asked Questions About Alternatives to Conservatorships and Guardianships

 

If my mother can no longer manage her assets or care for herself, are there any alternatives to conservatorships?

Generally yes, if your mother has previously executed a complete estate plan:

  • First, most living trust allow the Successor Trustee to step in at such times to manage the trust assets.  If your mother acknowledges the problems, she may be willing to resign as Trustee and appoit you to serve now, thus avoiding the need to wait until he or she is incapacitated and then find a doctor who will sign a certification to that effect.
  • Second, most powers of attorney allow the attorney-in-fact to manage non-trust assets when the principal can no longer do so.  As noted in the answers to Frequently Asked Questions About Bank Accounts, however, beware of the difficulty in dealing with banks using a power of attorney other than the bank's own form.
  • Third, most advance health directives authorize an attorney-in-fact to make health care decisions for the principal who can no longer do so.
  • Notwithstanding the authority you may have under such estate plan documents, remember that each of those documents is revocable and does not limit the actions your mother can take, whether or not those actions are in her best interest.  Sometimes, as a result of an illness or undue influence of another, a parent may sabotage your efforts to help your parent.  In such cases, it may be necessary to legally deprive your mother of control, which can only be done by the court.

If my father has early Alzheimer's disease, but has not executed an estate plan, is it to late to avoid a conservatorship?

Probably not as long as he still has capacity and is willing to sign the necessary documents.  If he is unwilling to do so, you may have no alternative to starting a conservatorship.


Are there alternatives to a conservatorship to care for an ailing spouse?

Yes.  First, of course, many assets, such as bank accounts, are held in joint tenancy.  Either spouse can write checks, withdraw cash, and transfer funds from one account to another.  Second, in most estate plan documents, each spouse authorizes the other spouse to act for him or her, either presently or upon incapacity.  Third, many medical providers will act on instructions of the well spouse even if the ill spouse has not signed an Advance Health Care Directive.


What if my spouse can no longer act and has not executed a power of attorney?

Court involvement may be necessary, but not necessarily the appointment of a conservator.  The well spouse can petition the court for the authority to act on behalf of the ill spouse.  This is often referred to as a "3100 petition", referring to the applicable probate code section.

For example, if the ill spouse has a large IRA, the court can authorize the well spouse to access the IRA, to make investment decisions and to make withdrawals if necessary or appropriate.  The court can authorize the well spouse to make gifts of the ill spouse's assets, and can even allow the well spouse to remove the name of the ill spouse from title to the family home for Medi-Cal purposes.

The court will not approve any act unless the court also determines that the act will not jeopardize the ill spouse; many counties, including Alameda County, routinely appoint a guardian ad litem for the ill spouse when such petition are brought.  The guardian ad litem is often an attorney in private practice whose job it is to represent the interests of the ill spouse and make a report to the court.  The court usually requires the well spouse to pay the guardian ad litem's fee.


I just learned that my 10-year-old is entitled to receive the proceeds of a life insurance policy.  Will I need to file to become guardian of his estate?

Not necessarily.  A judge can, in lieu of requiring a guardianship, order that the funds be deposited in a blocked account, an account that allows withdrawals only with court authority.  The judge can also order the funds to be transferred to a custodian for the minor under the California Uniform Transfers to Minors Act., Part 9 (commencing with section 3900).  If the money belonging to the minor does not exceed $20,000.00, the judge can order that the money be held "on any other condition that the court in its discretion determines to be in the best interests of the minor."  Whether a judge will consider such alternatives will often depend on the amount of the proceeds.