Conservatorship could be necessary as a last resort

By Rita Baum

Grow old along with me! The best is yet to be./The last of life, for which the first was made.

So wrote 19th-century poet Robert Browning, perhaps to his wife, poet Elizabeth Barrett Browning. For many of us, the golden years are the best years of our lives--a time to enjoy and reflect on a life well lived. However, a small percentage of people are so cognitively or physically impaired in late life that, if they have not made their own arrangements, a conservator must be appointed to oversee and direct nearly every aspect of their lives.

Conservatorship is a serious and life-changing process and usually the last recourse after other, less limiting forms of support have been tried or considered. In this legal procedure, an individual is adjudicated by a judge of the Superior Court to be substantially unable to make decisions or provide for her own personal needs or finances or both. If the inability to function is mild and can be resolved by alternatives such as a direct deposit for checks, representative payee, durable power of attorney and durable power of attorney for health care, these should be considered first.

There is a common misconception that conservatorship is only for older people who are no longer able to get along on their own. In fact, there are various kinds of conservatorship. However, our focus today is on general probate conservatorship, which includes general, limited and temporary conservatorship, most often set up for older people with limitations caused by aging. But it may apply to younger people who have been seriously impaired through disease or accident.

The process of conservatorship usually starts with the discovery or realization that an older person is not able to function as well as he or she once did. A family member, neighbor, bank officer or friend might notice changes in behavior. Perhaps bills are going unpaid, or the person gets lost, forgets where she is, or can't remember how to sign her name. The refrigerator may be filled with spoiled food.

Often Adult Protective Services or another senior service agency is called, and an investigation begins. According to Felicia Brown, chief court investigator in the Santa Clara County Superior Court Investigations Unit, "The most troublesome cases are those where someone has begun to exploit the elderly person for personal benefit."

A physician will do a medical and functional assessment and a probate attorney will do a legal evaluation to determine if there is a clear case to petition the court for the appointment of a conservator. Prior to the court hearing, a court investigator will interview and assess the prospective conservatee, explain the process and submit a report to the court. "The investigators are there to be the eyes and ears of the judge, having no personal stake in the proceeding," says Brown.

The probate court judge will determine the merits of the case, decide if conservatorship is needed, appoint a conservator, and determine what powers and authority the conservator will have. The conservatorship appointment becomes effective after an oath of conservatorship has been signed, a bond has been filed with the Superior Court clerk (for conservator of the estate) and the letters of conservatorship have been obtained. These letters name the conservator and list the powers of the conservator, serving as legal authority to make financial, medical and benefits arrangements for the conservatee.

A caring, responsible family member or trusted friend is ordinarily the most suitable candidate to serve as conservator. If there is no eligible or qualified family member or friend available, the court will appoint the public guardian or a private professional conservator. Timothy Ruschin, an attorney who practices probate and conservatorship law in San Jose, says, "It's a good idea for people to plan in advance for possible incapacity by executing powers of attorney and/or creating a trust that will indicate their wishes and designate person(s) to act in their behalf."

The conservator of the person is responsible for managing the day-to day care and needs of the conservatee in the least restrictive setting, preferably at home. A private professional conservator usually will have social assessment skills, experience in working with geriatric cases, a background in social services and knowledge of resources. If medical powers are included in the letters, the conservator may make decisions in good faith based on the advice of the physician. If an advance directive has been drawn up, both the conservator and the physician will be guided by it. An advance directive contains written instructions that state the conservatee's wishes regarding treatment or the withholding of treatment in various situations where life-support measures must be considered.

The conservator of the estate should have knowledge and experience in managing finances and keeping records. He or she protects the conservatee's assets, safeguards valuables and makes sure income and benefits are being received, bills are paid, the property is insured and tax returns are filed on time. If the conservator of the estate is working with a bank trustee or private fiduciary, she must keep track of how the trustee is managing the assets.

Conservators file periodic reports with the court. Each conservatorship is reviewed and reassessed by the court investigations unit a year after appointment and every other year thereafter.

No matter how appointed, a conservator holds a position of responsibility and is bound to respect the vulnerability and safeguard the dignity of the conservatee. Whether the relationship with an incapacitated older person is a professional or a personal one, the words of the Psalms ring true: Cast me not off in the time of old age. Forsake me not when my strength faileth.

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Rita Baum is a Los Gatos resident. She has a master's degree in gerontology.

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