An incapacity can strike at anytime and it is wise to be prepared rather than caught off guard.
We see a number of families caught off guard when a loved one suffers a stroke, aneurysm, traumatic head injury or starts to decline due to dementia or Alzheimer. The best way to provide for this possible situation is to have someone pre-appointed as your agent in a legal document known as a Durable Power of Attorney.
An mental incapacity occurs when a Person temporarily or permanently impaired by a mental deficiency, disability, illness, or by the use of drugs to the extent he or she lacks sufficient understanding to make rational decisions or engage in responsible actions on legal, business and financial affairs.
Once it occurs there may be a double Whammy which means your in the Living Probate for Conservatorship but once declared incompetent you cannot then create a testamentary instrument (e.g., Will or Living Trust). That means your family may be in court upon your departure again just to transfer your property.
CA. Probate Code § 6100.5. (once incapacity sets in you cannot then make a will or do a trust to avoid Probate at death)
(a) An individual is not mentally competent to make a will if at the time of making the will either of the following is true:
(1) The individual does not have sufficient mental capacity to be able to (A) understand the nature of the testamentary act, (B) understand and recollect the nature and situation of the individual's property, or (C) remember and understand the individual's relations to living descendants, spouse, and parents, and those whose interests are affected by the will.
(2) The individual suffers from a mental disorder with symptoms including delusions or hallucinations, which delusions or hallucinations result in the individual's devising property in a way which, except for the existence of the delusions or hallucinations, the individual would not have done.
COST OF CONSERVATORSHIP
DON'T GET CAUGHT WITHOUT AN APPOINTED AGENT
What Are the Fees?
The filing fee for this initial petition for Conservatorship is $465.00.
There is also a $650.00 investigation fee due upon filing.
That brings the total amount of fees to $1,115.00.
Are There Other Costs and Fees?
Attorney fees??? (can range)
You will need to pay the Court appointed attorney and the Court Investigator for their services.
Average Total Cost in Several Counties: $20,000 and up.
In Conservatorship of Samuels, Case No. B195217 (2d Dist., Div. 4 Aug. 21, 2008) (unpublished), conservator filed a petition for fees, seeking about $450,000 for services rendered to her parents as caregiver, conservator, and attorney (with $200,000 of the requested sum representing claimed attorney's fees). The probate court, as germane to our blog, only awarded $25,000 for legal services and denied conservator's request for fee sanctions based on the claim that some objectors made frivolous objections to the accounting. Except for a minor modification on one other unrelated issue, the Second District, Division Four—in a 3-0 opinion by Justice Suzukawa—affirmed the lower court determinations.
Can you avoid a conservatorship?
Yes you can avoid a Conservatorship completely by having proper documents before incapacity!