Santa Clara County Estate Planning Attorney: How to Avoid a Conservatorship

Let’s start off by saying that not all conservatorships are bad. Conservatorships play a vital role in Santa Clara County by allowing caretakers the means to make financial (Conservator of the Estate) and health (Conservator of the Person) related decisions for those who are not able to any more and have no one else to speak for them.

Unfortunately, court appointed conservatorships sometimes do not work out in the best interests of the conservatee or his or her family, so many Santa Clara County estate planning lawyers are often asked to advise their clients about the best ways to avoid a conservatorship. The simple answer is that advanced planning can almost always keep a person’s affairs out of the probate court, and the following are some of the tools Santa Clara County estate planning attorneys use to ensure their clients have a say in who will handle their affairs for them when they are no longer able.

Power of Attorney

A Power of Attorney is a document that grants an agent authority to act on behalf of a person (the principal) in various financial matters, such as paying bills, buying and selling real estate, or even conducting business dealings. Either a Springing Durable Power of Attorney (in effect only if the principal is incapacitated) or a standard Durable Power of Attorney (in effect at the time of signing) could help avoid a Conservator of the Estate being appointed by the Probate Court as an agent has already been designated to handle these financial decisions.

However, there have been some cases where the agent has been accused of mismanaging financial affairs or decides not to act as Power of Attorney, thus leading to conservatorship hearings. Santa Clara County estate planning attorneys advise their clients to choose someone who they can trust to handle their finances fairly, and to also be sure that the person being named on the document is aware of the situation and agrees to serve in that vital role.

Living Will and Designation of Healthcare Agent

The Living Will and Designation of Healthcare Agent are documents which lay out what type of medical care a person wants and who should make medical decisions for that person in the event of incapacitation. Once again, the Health Care Agent should be someone who understands the importance of this role and can be trusted to make important medical decisions on behalf of the principal. Otherwise, the Probate Court may have to appoint a Conservator of the Person.

Designation of Conservator

Even if both the Power of Attorney and Health Care Agent documents fail in their intended purposes and a conservatorship must be put in place, there is still one document which can help to ensure that a person is placed under the care of a conservator of their own choosing instead of someone appointed by the Probate Court. The Designation of Conservator is a document in which a person can name the people he or she would like to serve as either Conservator of the Estate, Conservator of the Person, or both.  It is often incorporated into a Health Care Directive. The Designation of Conservator is presented to the Probate Court during conservatorship proceedings to inform the judge that the conservatee made a decision, while of sound mind, to appoint specific people to these conservator roles. Santa Clara County estate planning lawyers find that Probate Court judges often appoint those named in the Designation of Conservator, as the document allows the conservatee to make his or her wishes known even if he or she is incapacitated.

If you have any questions about how a Santa Clara County estate planning attorney can help avoid a conservatorship, please contact us at (650) 422-3313 or email gary@braininlaw.com to set up a consultation.