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Conservatorship Alternatives in California Estate Law

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Epiphanies are moments that you can't ignore. They can be startling; it's surprising in seeing a truth revealed. They can also be shocking - Why did it take me so long to see this?

I've practiced law for 40 years. Over those years I've had plenty of epiphanies.

My early career mirrored the needs of a growing California. I had a land-use practice that kept me busy helping clients address the problems and opportunities that Sacramento's burgeoning population presented.

I made mid-career adjustments that became painfully necessary because of personal health challenges. These adjustments transformed my practice from a local to a national practice - I served clients from 30-plus states in seeking compensation and justice for their injuries caused by dangerous pharmaceuticals.

Now, the Baby Boomers - my generation and maybe yours - are growing older. And I mean we are really growing older. And with our age, we have new realities. One reality - an epiphany that's startling in its truth - is that we are ill-prepared to deal with the challenges presented by aging parents. That particularly applies to those who can no longer take care of themselves or their finances.

Our firm does a great deal of estate litigation - often dealing with elder actions that went wrong. This litigation is usually a fight over the past.

And so I am happy that I can share some insights gleaned from painful events - insights that in the future might help families to protect their elders.

Court conservatorships provide a great deal of power over the lives of conservatees. Such power may restrict people's rights and freedom in troubling ways. That said, sometimes it seems that there is no alternative.

This is about alternatives.

Health and Personal Care Issues

The illnesses and disabilities of elders present enormous challenges for family caregivers. There are both public and private social service agencies that will help family members meet these challenges. Such help might include meal delivery, housekeeping services, transportation to medical appointments and personal care attendants.

Advance Directives for Health Care

California provides for Durable Powers of Attorney for Health Care. Such powers give those named the authority to make health care decisions if the elder can no longer communicate his or her wishes.

Financial Decisions

Trusted relatives and friends may assist in daily money management. Budgeting, paying bills, buying groceries - tasks accomplished earlier in life without great effort can be insurmountable challenges later in life.

Joint bank accounts may provide a simple way to provide more efficient money management. Such joint accounts do carry risk - the elder should have complete trust in the joint account owner.

Representative Payees

The VA, Social Security and many retirement services agencies provide a way to authorize a person to receive a benefit check on behalf of an adult with diminished capacity. The representative payee does not have control over the recipient's other funds. Physician's statements may be a protective part of this process.

Durable Powers of Attorney for Finances

Such powers allow the maker of the power to appoint someone they trust to help manage their finances if they lose decisional capacity. There are risks and it is wise to consult with lawyer familiar with the advantages and disadvantages of such powers.

Living Trusts

This arrangement allows the maker of a trust to put savings, stocks, bonds, real estate and other property under the control of a trustee. The maker is often his or her own trustee. Successor trustees are names to take over if the maker dies or becomes incapacitated.

Now you can see that there are alternatives to conservatorships.

A conservatorship for a loved one may be the right choice - but it also might be the wrong one. Whatever choice is taken, California law requires that a proposed conservator consider alternatives. I've mentioned some of the alternatives.

The most important thing is that your loved one be respected and protected. Protecting your loved one's rights and freedom can be challenging when you are also working to prevent harm. There is no "one size fits all" in this effort.

The simple truth is that the challenges of looking out for an aging parent are best met with consulting public and private social service agencies, friends and family members who have been challenged with similar circumstances and, when necessary, lawyers familiar with the ways that legal steps can help to meet these challenges.

If you remember one thing - you do have the power to help your loved one, and there are agencies and people that will help you meet this task.

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