Why a Private Conservator?
by Becky Allred
He drove an automobile dangerously - and without insurance. Their checking account held in excess of $100,000 and he adopted the habit of handing blank, signed checks to people to fill in as it was to difficult to write it out himself. He decided he no longer wanted to visit the doctor for medication refills and would cause disturbances at the pharmacy when demanding medications inappropriately. His wife was frightened of his driving and would not ride in the car with him but was equally as frightened to take away the car keys. Together they could not fill out an insurance form so they paid full price for prescriptions. When they did decide to cook, they often forgot that there was food in the oven. She needed help and assistance but he, being frugal, thought it would be too expensive. She became malnourished and dehydrated and had to be hospitalized. They both suffered. Clearly there was a need for a conservator and/or a guardian.
As the population grows older and technology and research makes for longer lives, the above scenario becomes more and more common. The problems are innumerable, the solutions equally so. Every case is different, every need is specific, every family unique.
This generation that is growing older is experiencing new and prolonged mental and physical health issues. The fastest growing segment of our population are those 85 years of age and older. In fact, the number of 85 year olds today is twice as many as in 1965. Every day in the United States in excess of 1000 people turn 85. Of that elderly population, only 5% reside in nursing homes. Whether in a nursing home or not, 39% of individuals over the age of 70 require one or more assistive devices. Studies report that 47% of people over age 85 suffer from some sort of dementia.
The numbers are staggering and growing, as are the costs of care and maintenance for the elderly and disabled. Many have been able to plan ahead as 70% of the wealth in the United States is held by those 50 years of age or older. Unfortunately, while the elderly may have the financial means to take care of themselves, they often no longer have the mental ability to do so and are without a support system to safeguard them and implement a functional plan.
When an adult can no longer manage his/her own affairs, the ideal solution would be a trusted family member getting involved and working in the best interest of their relative. Family would be familiar with patterns, life choices, and dynamics that exist and would, theoretically, be the most cautious and considerate caretaker. Unfortunately, there is not always a family member willing, or capable, to step in and address the issues. There are time constraints, financial issues, family dynamics, and logistics. Quite often the children are middle-aged adults themselves with all the inherent stress and responsibilities of their own families, careers, and jobs.
These are people that need their day to day affairs managed. As an attorney this type of service may not be the best use of your time. It is not necessarily appropriate, cost effective, or even desirable to get involved at that level. Bank trust departments often take on this responsibility if the estate is structured to allow their involvement and is sufficient to support their fees. Many banks have a benchmark in estate value that must be met before they will accept the assignment.
While a private conservator is not inexpensive, it may still be the most economical choice, if a family member cannot or will not serve in that capacity.
Conservators are problem solvers and facilitators. Daily money management is only the tip of the iceberg. A conservator will work closely with a guardian, if one is appointed, as well as with other of professionals to solve whatever problems arise with assets; attorneys, real estate agents, plumbers, electricians, estate sales organizers, appraisers, car dealerships, home health care, geriatric care managers, investment counselors, funeral homes, yard care teams, moving companies, even the Holocaust Museum in Washington DC. The list is limitless. The financial responsibility assigned with the appointment also necessitates filing accountings with the presiding authority and keeping related parties informed. All of these services take time, and therefore, have related fees. Generally, the more complicated the client's life and assets, the greater the fees.
Another factor to consider when deciding to retain a conservator is family dynamics. Families often disagree. There are multiple disputes that could be going on, for an infinite number of reasons. Sometimes these disputes are quiet and polite, often times they are loud, unpleasant, and very disruptive to the general well being of the senior family member.
The disputes are as varied as the people involved. Some children are concerned about protecting their inheritance, not understanding or wanting to acknowledge that Mom's assets should be used for Mom's care first, inheritance second. Often there is a history of enabling behavior of parent to child that, at this advanced age, has to be curtailed to allow the funds to be extended for as long as possible for Dad's care. Perhaps there are some different perceptions over ownership of personal property. Fear can play a large factor in behavior: fear of the unknown, fear of loss, fear of change. Sibling rivalry rears its head at times and causes heretofore rational children to behave inappropriately with Mom or Dad's assets. Another problem that may render the family unacceptable for the role of conservator is substance abuse.
After a conservator is appointed, if the family continues to raise road blocks, hamper the work of the conservator, create additional work, and unceasingly call and demand attention from the conservator, fees can become greater than expected. While the professional does have some control over these interruptions, they also have the responsibility to show common courtesy and respect to the extended family members.
Sometimes a family member is an obvious problem. According to Utah Adult Protective Services statistics, in 2002 68% of adult financial exploitation was perpetrated by a relative, with children being the largest group and grandchildren being 15% of the problem.
A conservator has the right and the responsibility to try and recover any misappropriated funds. This can be a delicate subject and raises the question of whether the cost of recovery will be greater than the recoverable amount? Sometimes the goal may be to remove an abusive person from the immediate situation, whether restitution is likely or not. Again, not a pleasant job and not one a lay person would relish pursuing.
The elderly are not the only segment of society that is vulnerable and may need a conservator: She was a 45 years old woman diagnosed with Multiple Sclerosis (MS) and had a 16 year old child at home. Her husband had long since departed and left the relationship. She was struggling to survive. The disease had taken its toll and she could no longer control her bodily functions, much less function in the world on a day to day basis. She had income and means to support her daughter and herself, if only someone could help her write the checks, manage the funds, and perform the day-to-day tasks of living.
Then another young woman entered her life and offered to do just that, "help" with everything. The second woman was added to the credit cards, added to the bank account and given the ability to control all assets. She moved in with this mother and daughter and "helped".
It wasn't until an attorney was called to create a new will, assigning all assets to the unrelated adult and leaving the minor child with no inheritance that someone thought to look into the situation. By then, all utilities and house payments were months behind, the home was in a shambles, the bank accounts depleted, the child at risk, and the $6000 per month income disappearing as fast as it came in.
With no family willing to step in and address the problem, a private conservator was appointed by the court. The changes began.
Of course, the conservator could not cure the MS or take away the disabilities. However, proper care could be established through the involvement of a professional care manager. The creditors were contacted and appeased until payments could be made. The home was secured and a plan implemented to repair damages, as funds allowed, so that the daughter would be safe and secure in her home environment. College was investigated and programs accessed to obtain tuition funds. Income was managed for immediate needs and savings for future. The improper will was negated through appropriate legal channels, competency being a critical issue in that resolution. While restitution was unlikely, documentation was submitted to the criminal authorities to prosecute the abuser. Conviction in this case would not only get the perpetrator off the streets, it would mean credit issues could be resolved and the home could be refinanced at a reasonable rate.
As our aged population increases, conservators and guardians will become more and more necessary to protect our frail, elderly, and vulnerable adults. Each year the numbers of exploitation cases of parents by family members are greater than the year before. The role of private conservator and guardian becomes harder, more complicated, and ever more critical.