What cases are the most hotly contested in Probate Court? Where do you find the most drama? The answer to that question is easy, Conservatorships! Unfortunately, the court system is not very good at resolving family disputes. Just ask anyone who has been through a nasty divorce or custody battle. The litigation process is expensive, time consuming, and there are really no winners. Often the family relationships are more strained after the process is “completed.” This is no different in Conservatorship cases except the parties involved are usually siblings fighting over their elderly parent. The benefit of a nasty divorce case is that if there are no children involved, the parties can go their separate ways and do not have to continue to have any sort of relationship. Unfortunately, in Conservatorship cases the family is often torn further apart during litigation, and then has to find some way to continue to have a relationship. The underlying source of the conflict is often money, control, old unresolved hurts and animosity. The litigation process does little to resolve any of these issues. So, as attorneys practicing in this area of law, why are we particularly concerned about these types of cases? With the aging population and the lack of good estate planning being done beforehand, these cases are already and are going to become extremely prevalent. The courts will simply become overloaded with them.
How do these cases arise? In the typical Conservatorship case an elderly family member has begun to exhibit signs of mental defects, loss of memory, and is unable to make financial and/or medical decisions for themselves. One or more family members want to assist the elder in paying bills, managing finances, dealing with healthcare decisions but is unable to because no formal estate planning documents are in place to allow them the legal power to do so. This is when court action is required to formally appointment someone as Conservator of the Person and/or Estate for the elder. This can be a very rigorous process made even more difficult if there are multiple family members who are vying to be appointed.
Financial Elder Abuse. Unfortunately, there are many cases where a family member has been taking advantage of the elder’s lack of mental capacity and essentially stealing their assets or using them for their own benefit. Conservatorships are often necessary in these cases to protect the elder by placing control in the hands of a Professional Fiduciary or qualified family member.
How to Identify When a Conservatorship is Appropriate. Whenever it is suspected that someone, usually an elder or disabled person, is unable to make decisions for themselves and there is a lack of appropriate estate planning documents in place, a Conservatorship may be needed. Warning signs that someone needs help include; bills and finances being neglected, unusually large gifts being made, the individual is susceptible to scams, and healthcare and medical needs are not being met. Often the individual/elder is unaware that they need help. In all of these types of cases, a concerned family member should consult with an experienced attorney to discuss the use of a Conservatorship to protect the individual. I also recommend that they find an attorney whose goal is to help resolve any potential existing conflicts between family members rather than using litigation to make them worse. Experience in Mediation and Collaborative approaches is very useful in resolving family conflict.