Q&A: Liz Horvath, Senior Advocate: Sometimes a Conservatorship is the Right Answer

Q I read all your columns and am in a quandary. My mother, age 89, is showing some signs of memory loss. She wants to make changes to her trust because my brother has been using drugs and has stolen money from her, and she wants him out as a beneficiary of her estate. My attorney says the best thing to do is have my mother voluntarily go into a court conservatorship and have her new trust approved by the judge. In one of your columns you said, “Avoid conservatorship at all costs.” What should I do?

A Oh, boy, I wish my writing were sweeter — it would make it a great deal easier to eat my words! Your attorney is right; this action is usually called a “petition for substituted judgment,” and is a great tool for just this kind of situation.

However, before delving into the specific procedure, let me provide some general information about conservatorships.

A conservatorship is a legal process that takes place in the probate court. When an adult cannot take care of themselves or manage their finances, the court may appoint another person to take on the responsibility of helping and protecting the adult. Once conserved, the adult is called a conservatee.

Your attorney recommends that your mother “voluntarily” enter a conservatorship, which means she will be interviewed by the court investigator and, after a proper noticing period, a spouse, domestic partner, family member, close friend or hired professional will be appointed as her conservator.

In the situation you describe, let us say you are appointed as her conservator. Your attorney will then file a petition with the court stating that you are seeking approval to change your mother’s trust and are asking the court to approve this action.

The court should be given enough information to understand why your mother wants to change her document, but be careful about totally besmirching your brother’s reputation. These are generally public records so be sensitive to what you want in the open court record. Your attorney will no doubt be skilled at presenting enough information so the court will understand why the changes are needed but not so much to expose you to the potential of a defamation lawsuit.

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Liz Horvath, Senior Advocate: Sometimes a Conservatorship is the Right Answer