Conservatorships - Who Protects the Conservatee?

In California, a "conservatee" is someone who is mentally incapacitated and unable to make sound financial and/or healthcare decisions. A "conservator" is the person appointed by the court to handle these decisions. But sometimes, a conservator creates an unnecessary conservatorship and financially exploits the elderly conservatee.

How can this happen when court authorization is required and the court is supposed to be monitoring the activities of the conservator?

Here's an actual case: A conservator files a false accounting with the court, claiming that he personally interviewed, hired and paid for a particular woman to provide caregiving services for the elder (conservatee). An accounting is required to inform the court of all of the conservatee's assets, income, liabilities, and disbursements every year (or two years).

The truth is that this purported caregiver was never interviewed or hired by the conservator.

The conservatee is not represented by legal counsel, and the law does not impose a duty on any family members to investigate possible inaccuracies contained in the conservator's accounting to the court. The court does utilize probate "examiners" who review the conservator's accounting, but the examiner's role is limited to checking on, for example, whether the required accounting information is set forth in the proper format required of the court.

The examiners are not "investigators". They do not have the time or resources to telephone every single person (and company) - that the conservator has listed in the accounting - to see if they actually provided caregiving or other services to the conservatee.

Again, the examiners - and ultimately the judge - must rely upon the representations that the conservator has made - under penalty of perjury.

What's the result? Unfortunately, if no family member or loved one shows up at the hearing and makes an objection, the court will approve the accounting, and this approval usually includes an award to the conservator for his/her requested fees.

The court's order will then become "final" if no challenge has been made within the prescribed time.

There is one exception, where a challenge to the conservator's acts may be made after the court's order has become final. Probate Code Section 2103 allows a later challenge if it can be shown that the conservator obtained the final order by conspiracy, misrepresentation, fraud, or the intentional ommission of a material fact. Gee ... That sounds wonderful. There's an axiom in the law that states: "For every wrong there is a remedy".

Unfortunately, the appellate courts that have interpreted this statute conclude that the types of fraud must be "extrinsic". What does that mean?

Hmmm ...the "actual" fraud was the conservator's false representation (contained in his accounting) that a particular woman was hired and provided caregiving services to the conservatee. Remember: the court's approval of the accounting did become "final" because no one timely challenged it.

The "extrinsic" fraud must be something else - something "outside" the actual fraud. What could that be?

Well, the cases that have interpreted Section 2103 say that it means something like: Telling the conservatee not to attend the court hearing (for fear that the conservatee might object when he learned the truth about the phantom caregivers). Or arranging for the conservatee to be at a restaurant (out of the city) when the court hearing is held. This way, the conservatee would have been intentionally kept in the dark about the actual fraud. This type of deceit is "extrinsic" to the actual fraud.

But where the court has already found that the conservatee is mentally incompetent, and has no attorney, who is the "extrinsic" fraud to be committed against?

The Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) was passed (with numerous amendments) to add additional protections to the vulnerable elderly - not to limit any rights.

Without legal counsel, and without an interested family member present to stand up for the elder, who will protect that conservatee?

Unfortunately, this issue, and the effect that EADACPA may have by possibly superceding Section 2103, has not been raised with the appellate courts to date.

Stay tuned.

Attorney George F. Dickerman is a California attorney with 24 years experience. His elder law practice includes conservatorships and the protection of the elderly and their loved ones. For more information, and to receive your free newsletter that offers additional assistance,
visit: http://www.Elder-Law-Advocate.com

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