Category Archives: Conservatorship

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How to Remove a Conservator

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How to Remove a ConservatorWhen someone is legally appointed to manage the finances of another person, that’s known as a “conservatorship.” This is a beneficial option for those who aren’t able to manage their own money due to health concerns, mental illness or old age. There are also conservatorships for children who receive money.

Unfortunately, some conservators mismanage funds (intentionally or unintentionally), compromising the financial wellbeing of people who aren’t able to tend to their own affairs. While it’s normal to become angry or frustrated in these situations, you should know that you have legal recourse to remove an ineffective conservator and seek a replacement.

A conservator has a legal duty to protect and conserve the protected person’s money and assets. If the conservator fails to fulfill these duties and responsibilities, he or she can be removed from the position.

The first step in the process is to gather evidence. You will need to prove that the conservator has failed to perform the required duties. Evidence might include bank statements or copies of checks that show the conservator has not been acting in the best interest of the protected person (known as a “ward”).

These statements can be compared against the annual accounting that the conservator is responsible for filing. If you need additional information in order to prove the conservator’s mismanagement of funds and assets, you can petition the court for a more detailed disclosure of financial dealings. Look for an experienced probate litigation attorney to assist you with this process.

Your attorney will help you file a notice of appearance and submit the documents that show the mismanagement of the protected person’s funds.

If you need to get documents from the conservator or another party (such as a bank or other involved person), your attorney can serve what is called a “subpoena duces tecum.” If you’re not able to get the necessary documents for evidence, you may need to work with the court to obtain them.

After you and your attorney have submitted the documentation, the court will rule on whether the conservator should be removed and, if so, will appoint a successor.

The courts, and the state and county governments, take very seriously the rights of vulnerable children and adults. The court accountant’s office closely monitors conservatorships. The court accountant, however, is merely reviewing annual accountings. If you or another family member discover before that review that money is being stolen or misused, you or the family member should take immediate action.

It’s important to act quickly in situations where money or assets are being stolen. Such quick action will increase the likelihood of recovering lost funds.

If you have questions about how to remove a conservator, please contact our office. We’d love to help.

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3 Ways to Reduce the Stress of a Conservatorship

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3 Ways to Reduce the Stress of a ConservatorshipThe illness, incapacity or death of a loved one is certainly an emotional blow to a family. Additional stress can come from disputes regarding the conservatorship of loved ones – especially when things don’t go smoothly.

A conservatorship deals with money, which can be stressful on its own. A conservator has many responsibilities in the position. In addition to managing the incapacitated person’s affairs, the conservator is responsible for keeping detailed accounting records and for providing annual reports to the courts that detail the protected person’s assets.

Here are three ways to reduce the stress of serving as conservator:

  1. Keep all financial accounts separate.
  2. Never use the money for personal expenditures.
  3. File annual accountings with the court.

Of course, there’s a fourth tip as well: Hire a qualified CPA or probate law firm to help you keep track of the conservatorship assets. This is often the best way to reduce stress in a conservatorship. It will give you the personal confidence that things are being done correctly, and will reduce your risk for personal liability.

Being a conservator is a detail-oriented job, and one that involves providing for the needs of the incapacitated person while keeping track of all income and expenditures. At the same time, family members or other involved parties may have concerns about how the conservator is fulfilling his or her responsibilities. They may wonder if conservator is making bad choices or they may even suspect the conservator of stealing money from the protected person’s accounts.

Wherever money is involved, emotions can run high (as can temptation). And since a conservatorship involves money management for a protected person, conservators need to take care to understand their responsibilities, and follow them. At the same time, family members or involved parties need to be aware of potential mistakes or, worse, misdoings.

If, for example, a conservator squanders money reserved for the care of the protected person, the family or involved parties may feel they need to call the police for assistance. But in these instances, the police will usually not take any action, stating that it is a “civil matter”. Such situations then must be handled through probate court.

If you suspect something is amiss with a conservator, do what you can to gather evidence about the situation to make sure the conservatorship is being handled properly. If the conservator is mishandling the estate, enlist the assistance of an experienced probate attorney to resolve the situation and, if necessary, recover lost funds or assets.

Remember, it is natural to feel some stress if you’re involved in a court proceeding involving a conservatorship. You are likely unfamiliar with particular court rules and laws as well as uncertain of how to deal with judges and lawyers.

But you’re not alone. If you have a loved one who needs the assistance of a conservator or have been appointed as a conservator, it’s important to consult with an experienced probate attorney.  We’re here to help – and to put your mind (as well as that of the protected person) at ease.

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How to Avoid Disputes in a Conservatorship

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How to Avoid Disputes in a ConservatorshipWhen a loved one needs help managing finances or legal affairs, a conservatorship is often the best option. The conservator, usually a family member or trusted friend, has the authority to act in the interest of the protected person’s legal and financial affairs. As beneficial as this can be for the loved one, at times this transfer of power can lead to disputes over certain decisions and situations.

First of all, though, we should clarify what a conservatorship dispute is. For one thing, it differs from a guardianship dispute. A guardianship dispute concerns disagreements about who should be making decisions regarding where the incapacitated person lives and the healthcare he or she receives. A dispute about a conservatorship is a disagreement about who should be in control of money and assets.

Most disputes surrounding conservatorships, then, involve money matters. A conservator may even be abusing his or her authority. Examples could include stealing money or not acting in the best interest of the protected person. But far more common are the disputes arising out of mistakes – so it pays to be aware of some of the pitfalls.

There are three common mistakes people make in conservatorships:

Mistake 1: Failing to segregate conservatorship assets. All assets must be transferred from the incapacitated person’s name into conservatorship accounts.

Failing to separate the protected person’s cash and assets from the conservator’s personal cash and assets can have significant legal consequences. This is a very sensitive area: A conservator may unknowingly use funds from the conservatorship for his or her own use, or may even think it’s okay to use an incapacitated person’s funds for personal use. But the conservator must repay all funds to conservatorship accounts. In the State of Arizona, a conservator can also be fined an additional amount on top of the original sum taken. The conservator can also be disinherited from the protected person’s estate and be made liable for legal fees that have been incurred as a result of mismanaging funds.

Mistake 2: Failing to keep detailed records. The conservator must document and account for all transactions. Dealing in cash, withdrawing funds from an ATM, failing to keep receipts and not keeping track of time spent on the conservatorship are all accounting issues that can leave a conservator liable to accusations of mishandling the responsibilities of the position. If you don’t keep accurate records, you may be held personally liable for all money that isn’t accounted for.

Mistake 3: Failing to comply with court orders. As a conservator, you are responsible for filing an inventory, filing a credit report, submitting a budget and performing annual accountings of the estate. If you fail to comply with the court’s orders and the conservatorship statute, you as conservator may also risk being removed from your position.

The best way to avoid making these mistakes is to be aware beforehand of all the responsibilities and requirements of being a conservator. If you’re not good with recordkeeping and other detailed work, it may be best to defer the position to someone who’s better suited to such things. One option is to get a licensed fiduciary appointed.  A licensed fiduciary is a specially trained person who regularly serves as conservator and/or guardian in cases.

That said, remember that if you do accept the position of conservator, you don’t have to do it alone. Find an experienced probate attorney to help you understand the requirements of the position, and to comply with them.

If you have questions about how to resolve or prevent a dispute in a conservatorship, comment below or contact our office. We’d love to help.

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How to Petition for Emergency Conservatorship

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How to Petition for Emergency ConservatorshipAs loved ones age they may need help managing their finances or legal matters.

A durable general power of attorney can be a great tool for helping older loved ones when they get to the point that they need help. Simply put, it’s the written authorization to represent or act on another’s behalf in private affairs, business, or some other legal matter. A durable general power of attorney is good in many situations, such as selling a car or home. The durable general power of attorney can give others the legal rights to perform or assist with any legal acts that the person covered under this power of attorney would do for him or herself.

In certain situations, however, a general power of attorney either is not available or is perhaps insufficient to the situation. In those cases, you may need to obtain a conservatorship.

First, let me define conservatorship for you. A conservatorship is a court proceeding that appoints a person or entity (such as a private fiduciary – a fiduciary is a legal or ethical relationship between two or more parties.). This person or entity will have the authority to manage the affairs of a minor or of an incapacitated adult who is unable to manage his or her property or financial matters.

Let’s look at a few situations where a power of attorney may have limited usefulness:

  • The person listed as the agent on the power of attorney turns out to be dishonest; this person may be stealing money or otherwise mismanaging assets.
  • The person listed as the agent may be unavailable to fulfill the role of power of attorney.
  • The power of attorney is somehow invalid.
  • The family is fighting over who should control the assets.

If a conservatorship is needed urgently for the above or other reasons, you can petition the courts for an emergency conservatorship.

You may have an emergency situation if your loved one’s bills are not getting paid, if your loved one is making poor financial decisions or if someone is stealing money or taking advantage of your loved one’s financial situation.

A hearing will be scheduled either within a few weeks or within a few days, depending on whether you can prove that there is an emergency.

If you are seeking to remove a current conservator who is either abusing power or mishandling assets, you must provide evidence of this to the court. A probate or litigation attorney can help you get the evidence you need to establish your case.

If you’re unable to provide evidence to prove that the situation is an emergency, the court will schedule your hearing as it fits into its schedule, which may take several weeks.

If the court hearing needs to be made immediately, then the court will treat it as an emergency and appoint someone without giving the other interested parties an opportunity to appear.  A follow-up hearing will then be scheduled to ensure that everyone involved is given due-process rights and allowed to contest the conservatorship if it’s felt to be necessary.

Probate courts are familiar with emergency situations. They are there to help. Remember that you have options. With the assistance of an experienced probate attorney and the probate courts, you can get help resolving the situation.

If you have questions about an emergency conservatorship, give us a call. We’re here to help.

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Resolving Disputes Involving Guardianships and Conservatorships

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Resolving Disputes Involving Guardianships and ConservatorshipsDisputes involving guardianships and conservatorships can be confusing and overwhelming for most people. The single biggest mistake I see in this area is people not consulting a probate litigation attorney. An experienced attorney will not only be familiar with the applicable statutes and case law, but will also know the applicable probate rules. Here is what you need to know about resolving disputes involving guardianships and conservatorships.

Guardianships and conservatorships is one of those areas of law that the uninitiated simply cannot tackle alone. People serving as guardians or conservators find themselves in a position where they are expected to be an expert on a complex topic they likely know little about. This is fertile ground for anger, surprises, greed and revenge among heirs and family members. While some guardianship and conservatorship matters are settled peacefully and amicably among family members and heirs, many times the actions by the guardian or conservator can engender disputes and bad feelings.

I recently worked with a prominent family in the Phoenix area to help the adult children resolve a dispute about their mother’s money. It turned out that one sister who had been named trustee and financial (general) power of attorney was mismanaging funds. To rectify this, I helped the other siblings file for conservatorship. We were able to obtain copies of all the financial documents and track all the funds that had been held in the mother’s trust and LLC.

After examining the financial documents, we could then force the sister who had been serving as trustee and financial power of attorney to pay back the money she’d stolen from the trust and business. We then replaced her with a professional trustee. (My clients became co-conservators.) We resolved this dispute in a cost-effective and family-oriented manner while maintaining the family’s privacy, thus avoiding public drama that would have tarnished the family name and reputation.

Conservators and guardians make important decisions on behalf of a loved one. But if the conservator or guardian is not living up to the responsibilities of the position you do have options. A probate litigation attorney can help you assess your unique situation and give you direction.

If you are an heir or if you’re serving as a guardian or conservator and you’ve found yourself in a dispute, don’t wait and hope the problem will go away on its own. Enlist the help of a probate litigation attorney right away.

In our next post we will look at solving disputes that involve trusts. If you have questions about guardianships and conservatorships, or other probate issues, please comment below or contact our office.

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How to Get a Physician’s Report for a Guardianship or Conservatorship

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How to Get a Physician’s Report for a Guardianship or ConservatorshipCaring for an aging parent or loved one can be challenging. Especially when one or both parents become unable to care for their health and finances. In these situations, it may be necessary to seek a guardianship or conservatorship to help your parents get the care and support they need.

Obtaining a physician’s report is an important step in applying for guardianship or conservatorship. In the State of Arizona, a physician’s report can be completed by a physician, a registered nurse, a psychiatrist or psychologist. The content of the physician’s report (which varies from state to state) will be used to determine whether the situation requires a guardianship or conservatorship.

Here are three important steps you need to take before the court can appoint a conservator or guardian:

  1. Take action. If a loved one is not paying bills, starts to make poor financial decisions or isn’t receiving the healthcare he or she needs, you should be proactive. Learn more about what you can do to help. Frequently aging parents will resist a child’s urging to get help. But be persistent. You are their best advocate.
  2. Get a physician’s report. If a parent refuses to be examined by a physician, you can enlist the support of a social worker or anyone else familiar with the situation by getting a statement about what’s going on. The court can use this statement to appoint a physician or other professional to make an evaluation.
  3. Prepare for a court hearing. Petitioning for guardianship or conservatorship requires a lot of paperwork. Remember to include the physician’s report and other supporting documentation. It’s much easier to spend a little extra time preparing for the hearing than dealing with the frustration and delay of rescheduling a hearing because you didn’t have all the necessary paperwork. Make a checklist of what needs to be included; if you are working with an attorney, the attorney will help with the details.

If you’re seeking a guardianship or conservatorship for a loved one, or if you’re concerned about a current guardian or conservator, it’s important to know how to get a physician’s report in order to establish your case.

If you have any questions about how to get a physician’s report or about guardianships or conservatorships contact our office. We’d love to help.

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