If you’re considering setting up a conservatorship for a family member who is no longer able to care for themselves but are concerned other family members might not agree with you, it’s important to understand what you can expect from a contested conservatorship.
Anytime a conservatorship is contested, you need to consider hiring a conservatorship attorney to guide you through the process.
How Does the Conservatorship Process Work?
A conservatorship is a court process and approval where an adult is granted the legal right to make decisions and access confidential information for another adult. A limited conservatorship can take a few different forms. You might ask for conservatorship over a parent who is suffering from dementia or over an adult who has a mental disability that prevents them from being able to care for themselves.
As conservator, you’re granted certain rights over the conservatee or the person being cared for. You might be granted the ability to manage their finances, make their health care decisions, and arrange their living situation. Which rights are granted to you will be up to the court.
If you’re looking to care for a minor child, it’s important to note that a conservatorship is only for adults. To receive rights to care for a minor, you need a guardianship.
Reasons Why a Conservatorship Gets Contested
To better understand what happens in a contested conservatorship, it’s important to understand why it can become contested.
Dispute Regarding Who Should Be Conservator
One of the most common reasons that a conservatorship becomes contested is that there’s a dispute over who should become the conservator.
This situation is most common between siblings who are wanting to care for a parent. Though it can complicate the situation, if two people cannot agree on who should become the conservator, it is possible to have co-conservators.
Removal of Existing Conservator
If for some reason the current conservator is no longer willing, able, or capable of caring for the conservatee, they will need to be removed and replaced as conservator.
The removal of a conservator is something you’ll need to do with the help of a conservatorship attorney. The title of conservator is a legal title and must be legally passed to the next conservator.
Conservator Doesn’t Consider the Wishes of The Conservatee
The job of a conservator is to make sure that the conservatee receives the care they need. Depending on the situation, the conservatee may still be capable of making some decisions or at least relaying their opinion on what their care should look like.
A good conservator considers the (reasonable) wishes of the conservatee. If the conservatee would like to remain in their home and receive care instead of moving to a facility, that should be considered when making the decision.
If the conservator isn’t considering the wishes of the conservatee, other family members or the court may contest the limited conservatorship. If this happens, a conservatorship attorney will need to be brought in to oversee the case.
Change in Existing Conservatorship Power
A conservator may need to request additional legal authority, or the conservatee may request return of all or some of the powers that were granted to the Conservator.
As a conservatee’s dementia worsens, the administration of psychotropic medications or placement in a secure facility may be required. Both require a court order from the court in advance of taking such action. The conservatee or family members may object to such a request.
If the mental incapacity was temporary and due to a brain injury, the conservator might have some or all of their powers revoked. The conservator may feel the conservatee is not yet capable of making legal decisions independently and may object.
If either of these situations occur, the conservatorship is considered contested until the court has finalized their assessment and decision. If you feel that the change in conservatorship power isn’t rich, you should seek representation from a conservatorship attorney.
Dispute Over Visitation Orders
Each conservatorship is unique to the situation. When families get along the conservatorship does not require a visitation order, the family just makes such arrangements. But because the conservator has the legal authority to restrict access to the conservatee, in a family where the conservator is abusing that power, a visitation order is necessary.
Visitation orders designate which family members can visit the conservatee and when. If the visitation orders are disputed or if family members disagree with what’s requested, the conservatorship will be contested.
In emotionally fraught cases such as this, it’s important to seek the help of a conservatorship attorney to serve as your advocate.
Objection of Proposed Conservatee to Conservatorship
Another very common situation for families seeking a conservatorship is that the conservatee doesn’t agree that a conservatorship is necessary for their care. Many potential conservatees want to maintain their independence and are therefore resistant to a limited conservatorship. Proposed conservatees with dementia often object.
A conservatorship attorney can be helpful in explaining the conservatorship process so you know what to expect.
Appointment of a Successor Conservator
Sometimes a conservatorship is set up that a husband or wife is the conservator for their spouse. When the conservator isn’t able to care for the conservatee anymore and may need to become a conservatee themselves, a successor conservator must be named.
You cannot name a successor conservator in advance. Instead, the successor will have to file a new petition requesting their appointment. This next round will be easier though because the conservatee has already been determined to lack capacity so the only issue is whether or not you are a suitable successor conservator.
Problem with Co-Conservators Making Joint Decisions
If a conservatorship is created and names co-conservators but those co-conservators are unable to agree on decisions, they will have to go to court to fight it out.
If this happens, it will be necessary to seek the help of a conservatorship lawyer to try to find a solution that doesn’t require court intervention or to represent you in court.
Why Your First Step Is to Contact an Attorney if Your Conservatorship Gets Contested
A contested conservatorship means a complicated court hearing and high emotions. A conservatorship attorney is a wonderful asset that can help your family navigate the legal process more easily.
Each Case is Unique
Even if you’ve established a conservatorship in the past, each case is different. As soon as a conservatorship runs into a problem and becomes contested, the simple process becomes much more complicated and more emotional. A conservatorship attorney can make that process a little bit easier.
A Good Professional Has The Experience To Reverse The Situation
There’s nothing inherently wrong with a contested conservatorship, it just means there’s a complicating factor. There might be a small disagreement between siblings or a detail that is difficult for the family to work out on their own.
A good conservatorship attorney has the experience and wisdom to help you work through that situation.
A Conservatorship Attorney Can Avoid Extra Costs And Save Time
Any added complicating factor to a conservatorship petition can add stress, time, and money to your cost. Navigating that alone becomes just that much more difficult.
An experienced conservatorship attorney can help you to navigate the process with ease, saving you time and headache.
If you’re interested in learning more about setting up a conservatorship, you can sign-up for a free consultation today with a conservatorship attorney in San Diego. The Kam Law Firm is available to help if you have any questions about a contested conservatorship or any other questions you might have for an estate planning attorney.