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It used to be that getting old indicated that a person had gained the wisdom of a lifetime of experience, and that therefore deserved our utmost respect. But those days are long forgotten – especially when it comes to the probate courts, where you might end up someday.     

A serious problem in our current legal system makes it far too easy for an elderly person to end up with an unwanted Conservatorship, when in fact they may not actually even need one.  A Conservatorship is a court ordered arrangement in which a single probate court judge can order one person (who, in some cases, is a complete stranger) to have absolute control over another person’s affairs, just because the court has decided, in its “reasonable discretion”, that this second person is no longer able to properly care for themselves or manage their things.  Many unwitting people end up becoming the victims of this system, a system that strips you of the right to make your own decisions, simply because you are now showing normal signs of age. You have not been found criminally insane or harmful to anyone. It’s just that you are slowing down, you’re getting forgetful, and it is possible that someone may be able to take advantage of you. Unbelievably, in more and more cases, that “someone” is the probate court itself. It is the court that is taking advantage of the fact that you do not have a protective-enough estate plan to thwart the imposition of an unnecessary Conservatorship of your person and estate.

A dirty little secret, one that most people are not aware of, is that courtrooms today may not have an incentive to dispense justice. This is because, like every other business across America, courtrooms operate on a budget. The tighter the budget, the greater the likelihood is that injustice prevails in that courtroom. For example, gone are the days where a courtroom provides you with its own court reporter (to keep a record of who said what) so that a person (including the Judge) can be held accountable for what they actually did or didn’t say. What this means to you is that if the Judge commits an abuse of justice, no one will ever be able to do anything about it (in an appellate court), because there is no record of it. On top of this, if a judge knows that the court he or she works for is looking to cut back its already restricted budget, even the most scrupulous of judges might be pre-disposed to making sure that the court presides over a lot of ongoing cases. A conservatorship proceeding is a perfect example of one of these ongoing cases, because the court essentially governs over it from start to finish (which, in some cases, is a lifetime). Therefore, as unbelievable as it might sound, it is not a difficult stretch to conclude that a probate court in any particular city might actually seek to conserve as many people as possible. The more cases they have to preside over,  the more job security they have.

Another important thing to know, is that regardless of your physical or mental capacity at the time someone might actually attempt to conserve you, the only way to effectively prevent the imposition of an unnecessary conservatorship is to have an expertly made estate plan already in place long before any of this happens. The probate court will look for faults in your existing plan in order to find a reason to conserve you. Even if you think that your estate plan is good enough, you need to make sure that it will withstand legal scrutiny.

Editorial credit: Roman Stetsyk / Shutterstock.com

The court can rule that your estate plan is invalid for a plethora of reasons. One of the reasons may be that you made the plan too late in life, meaning that you made it at a time when your mental capacity could be questioned. Most often, problems with your estate plan are caused by the multitude of peddlers who sell “estate planning”, but are unqualified to do so, or who can’t legitimately give you legal advice because they are not lawyers.

Here is the take away point: if you have to fight in court someday for the right to stay in control of your own life, then you had better make sure that your estate plan is built like a coat of armor. How well it is prepared and executed (by your certified estate planning attorney expert) and when it was prepared (when your mental capacity was unquestionably sound) are all you may have to shield you from your opponents in a battle for your autonomy.  You can’t afford to take any chances with a bad estate plan.

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Written by:

Elain Andrews, JD, LTC, USAR (Ret.)
Certified Specialist Estate Planning, Trust and Probate Law

Serving the following areas:
San Francisco Bay Area 707-773-1375
Lake Tahoe 530-550-8736
Sacramento 916-668-4546

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