Protecting Assets of the Elderly or Disabled with a Conservatorship

Asset protection takes on a different meaning when it comes to the elderly and disabled population. Sometimes an elderly or disabled loved one reaches a point in life where he or she is no longer able to make financial decisions in his or her best interests. Faced with the responsibility of managing a loved one’s assets, a Conservatorship procedure is an effective way to secure financial management planning tools in order to protect your relative’s assets. A Conservatorship is a legal process, which gives you the authority over your relative’s finances and business affairs. The person who is the caretaker is called the conservator, and the person who is being taken care of is called the conservatee.

While a valid power of attorney document can authorize the power of attorney holder to accomplish certain of a conservator's tasks, it cannot prevent the ill person from contracting, conveying property or marrying. For example, a patient with Alzheimer's disease may become subject to fraud from unscrupulous persons. While he or she could have given a valid power of attorney while he or she was well, he or she may be befriended, may marry, and convey his or her property to a new spouse. In that situation, the probate code provides that a Conservatorship may be established, and the conservator may ask the court to set aside any contract entered into by the ill conservatee. The advantage of the Conservatorship is that it can safeguard against fraud and protect the privacy and the assets of the ill person.

The establishment of a Conservatorship has three basic effects:

• It shifts the responsibility of making financial and personal care decisions from the disabled individual to the Court appointed conservator.
• It imposes significant limitations on the ability of the conservatee to take actions affecting finances or personal care.
• It provides a certain degree of protection for the conservatee's interests from fraud, misappropriation of funds or neglect.

Courts will only grant a Conservatorship if you cannot take care of yourself or your affairs and if you have made no arrangements for your care. If you have made adequate provisions, the court will not disturb your arrangements. Thus, a properly prepared estate plan can enable you to avoid a Conservatorship proceeding over you or over your estate.

Conservatorship proceedings can be very expensive and the cost of the legal proceedings and the cost of paying a Conservator are taken out of your assets, assets you might need for your care. Compared to the cost of a Conservatorship proceeding, the cost of planning ahead with a good estate plan is money well spent. But, if you did not plan ahead, at least this vehicle exists for the court to make sure someone is appointed to protect your interests.