What Is a Conservatorship?

On air discussion on 4/5/16 on www.KPRZ.com with Marty Schneider – The Retirement Professor 

Q: How can my wife take care of things if I became disabled? Aren’t there some things I need to agree to or to sign no matter what?

A: Most property owned by married couples in California is in joint title. Most loans are joint loans with both husband and wife on the loan. Most property is considered community property. Joint title is great, BUT if one of you becomes disabled (legally unable to make decisions), it is almost impossible for the other to do anything legally with the property on their own. This means that if you needed money to take care of a disabled spouse, or needed to re-finance property, or to borrow money, you probably could not without your spouse signing – but if your spouse is disabled, they cannot sign. In order to do any of those things -re-finance, borrow money, etc.- you would likely have to hire an attorney to go to probate court to get a conservatorship over your spouse.

Q: What is a conservatorship?

A: A conservatorship is process in probate court to appoint an adult to care for and manage a disabled adult. Think of it as a guardianship, but for an adult.

Q: How much does it cost to get a conservatorship over a loved one?

A: Normally a conservatorship would cost between $2,000 and $3,000.

Q: How long does it take to set up a conservatorship?

A: The conservatorship process takes several months. The person seeking to get authority to help the other adult is the Conservator, the one needing the conservatorship is called the Conservatee.

Q: Can a conservatorship be avoided?

A: Yes, by using a Living Trust and proper Power of attorney forms.

Q: Is a Power Of Attorney the best way to give my husband power to handle things if I become disabled?

A: No. Though a limited Power of Attorney is a good idea, a Living Trust is probably a better choice.

3 problems with giving someone a general Power of Attorney:

1 – A general power of attorney is a nuclear bomb of authority which could cause loss and abuse of the estate if the designated Power of Attorney decided to do their own thing.

2 – It is very difficult to revoke a Power of Attorney because a copy is typically as good as the original. In order to revoke it, you’d need to find and destroy all copies.

3 – They have no force or effect after death.

Probably the best way to avoid the conservatorship problem is to have a Living Trust set up for you.