If you don’t create an estate plan, you could be placing yourself at the mercy of the court. What is Guardianship and Conservatorship? California uses the word Conservatorship, and the rest of the USA uses the term Guardianship. This is the court procedure by which the rights of the individual (Ward or Conservatee) are transferred to another (Fiduciary) to protect the conservatee from themselves and others. Once conserved, many conservatees can no longer enter into contract, vote, marry, manage their own funds, or make their own medical decisions. Conservatorship happens when there is no plan, or the plan has failed, and the individual has become very vulnerable, very uncooperative, or both. The court proceeding can be brought by any interested party, usually family members.
In California, there is no way to conduct a conservatorship without the conservatee being informed or given notice. Conservatees and Conservators are represented by attorneys. Investigation is conducted by court appointed parties such as a Guardian Ad Litem (an attorney appointed by the court to advocate for the proposed conservatee and report to the court) or a court appointed investigator. This way the court gets a direct report as to the condition of the conservatee, and the conservatee’s situation. The process can take months, and once finalized, the Conservator has to report to the court on a regular basis; accountings, requests for the court’s permission (like to sell the family home), and in this way the court supervises the conservator’s work.
Conservatorship is a public procedure where the question of whether or not a person can manage on their own is debated. If you create an estate plan and nominate someone to serve if a conservatorship is needed, that at least allows you to select someone you know and trust. If you select a professional to serve you, rather than a family member or friend, you benefit from the professional’s experience and resources, as most family and friends have never done this kind of work before. Please take some time to get acquainted with the professional(s) you select. Allow the professional to receive a copy of your estate plan documents, and be willing to provide additional information, so your selected person knows where you bank, who you do business with, and what you like. For more information, read “Who Needs a Professional Fiduciary?”
Marguerite Lorenz, CTFA, CLPF is a Master Trustee and a Managing Partner at Lorenz Private Trustees (MyTrustee.net) and has served as a Trustee and Executor since 2003.