Category Archives: Conservatorship

Your Mom May Need a Conservatorship

nursing homeDear Liza:  My mother, suffering from Alzheimer’s, is completely mentally incompetent and living in a nursing home in Arkansas.  I have only recently learned – surprise! – that she does not have a will.  With my father and brother already deceased, I am her only legal heir, but I fear the difficulties in settling her estate upon her death.  Is there anything I can do now to ease that transition, or I am simply going to have to bite the bullet and hire an attorney?  I do hold her Power of Attorney, but I know that does not grant me the right to write a will on her behalf. I am sorry to hear that your mother is no longer able to manage her own affairs.  You are absolutely correct that, at this point, you don’t have many options in terms of putting a Will in place for her. She can’t write her own now that she doesn’t understand what she would be signing, even if she’s still capable of physically signing a document.

The only legal avenues available to you both involve working with the probate court in the county where your mother lives (and, unfortunately, this also probably involves working with an attorney). You could petition the court to be named your mother’s conservator.  If this petition is granted, you would then be  your mother’s legal guardian, and in a position to have a Will drafted for her, but conservatorship is a long and complex process which will require court hearings, proper notice, and an investigation to determine your mother’s competence and your suitability as her conservator. If you are her only  heir, you could also wait until she dies, then  inherit under your state’s intestacy statutes, which would require a probate proceeding upon your mother’s death, if her assets exceed the small estates limit in Arkansas, which is currently $100,000.

What’s a conservatorship?

Dear Liza: A friend of mine recently had a stroke and cannot sign her name, nor make an X, and her conversation is garbled. She doesn’t have a Will, a Living Trust, or a Durable Power of Attorney. How can we get something in place to take care of her financially? It sounds like you are going to need a conservatorship for your friend. This is a court proceeding where a judge appoints a responsible person or organization (that’s the ‘conservator’)  to care for another adult (that’s the ‘conservatee’) who is no longer able to care for himself or herself or manage his or her finances. Here’s a link to the California Courts website on conservatorships. If your friend had signed a Durable Power of Attorney for Finances before she had that stroke, you wouldn’t need to go to court–which is why a Durable Power of Attorney is such an important document. Conservatorships are generally handled by elder law attorneys, and sometimes (but not always) by estate planning attorneys.  California Advocates for Nursing Home Reform (CANHR) has a good directory of elder law attorneys. Hope this helps.