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Siblings arguingMost California trust and estate disputes are emotionally intense, and none more so than sibling conflicts over the care of an aging parent. Like a child custody fight in the family law context, siblings battle over whether Mom will remain in the home where she lives, move in with one of them, or move to an assisted living facility. They fight over who will manage Mom’s finances and interact with her doctors.

California courts have the tools to resolve these disputes, but struggle to evaluate competing claims of siblings and have a limited attention span to parse through them. Very often, when siblings cannot find middle ground, Mom’s care and finances will end up in the hands of a third party conservator and trustee, after many thousands of dollars in legal fees.

Even Advance Planning Can’t Stop Sibling Disputes

Incapacity planning is a primary component of estate planning. Many of us will experience mental incapacity at some point during our lives, either temporary or permanent. Dementia caused by Alzheimer’s disease is one of the more common causes of incapacity. Through financial powers of attorney and advance health care directives, we designate people we trust to manage our resources and make health care decisions for us if we are unable to do so.

If Mom names daughter Darla to act for her, and other family members are comfortable that Darla will act in Mom’s best interests, the transition works smoothly. But what if brother Brad, for good reason or not, attempts to assert control over Mom? What if he, without Darla’s consent, moves Mom in with him? A colleague in Roseville, Lynn Dean, aptly describes this sort of scenario as “parentnapping.”

Incapacity planning breaks down when family members mistrust one another. If Mom identified two siblings to act together in making decisions for her, but they disagree, neither one of them will be able to proceed unilaterally. Likewise, if Brad does not defer to Darla as Mom’s chosen agent, then Darla will have difficulty implementing decisions for Mom.

Don’t get me wrong. It’s far better to have a quality estate plan that designates a particular person to act as agent than to have no plan at all. But even a good plan may break down when siblings fight over their parents.

Conservatorship Petitions Are the Nuclear Option

A child who is concerned about how a sibling is handling Mom should try to work through those concerns cooperatively, perhaps involving another family member or a mutually-respected friend as a facilitator.

If Mom has sufficient mental capacity, she might seek an elder abuse restraining order against family members who are mistreating her, but this option is not available if Mom is dependent on or otherwise under the “spell” of the wrongdoer. Also, courts may suspect that Mom’s request for a restraining order is the product of conflict between siblings and decline to grant or extend an order on that basis.

Adult Protective Services, a state mandated program that operates in each county, will receive complaints and investigate them, but generally does not take action when there is intra-family conflict and Mom is not in imminent danger. A knock by an APS worker at Mom’s door may only upset her.

In California, the probate department of the Superior Court can take control of a person’s affairs through a conservatorship proceeding. Typically, a concerned family member will begin the process by filing a petition with the court in the county where the Mom resides. The courts require petitioners to prepare and submit certain forms created by the California Judicial Council, and the forms are difficult for non-lawyers to understand. If the situation is urgent, the court may grant a temporary conservatorship pending a full hearing on a general conservatorship.

Under California Probate Code section 1801, the court may appoint a conservatorship over the person if an individual is unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter, and the court may appoint a conservatorship over the estate if an individual is substantially unable to manage his or her own financial resources or resist fraud or undue influence. A conservatorship may cover both the person and the estate, or only one or the other.

Through conservatorship proceedings, the court can place authority to act for Mom in the hands of a conservator and can terminate any financial powers of attorney or advance health care directives that might interfere with the conservator’s authority. The conservator of the estate can enter into contracts for the benefit of Mom, such as agreements with an assisted living facility.

The conservator also can initiate litigation on behalf of Mom such as financial elder abuse claims against family members who took Mom’s resources for their own use without her informed consent. The court can grant special “dementia powers” to a conservator of Mom’s person, including the authority to direct the administration of medication and to place Mom in a secured perimeter residential care facility.

On the other hand, there are downsides to initiating the conservatorship process:

  • Conservatorships are stressful for Mom as the proposed conservatee. She may have difficulty understanding the nature of a conservatorship and worry about its effect on her. She may have to appear in court multiple times, and conservatorship hearings are open to the public. She will have to speak with the Court’s probate investigator who will seek to interview her in person about her circumstances and attitude towards the proposed conservatorship. The court likely will appoint a lawyer, not of her choosing but at her expense, to act as her counsel.
  • Conservatorships are expensive. The petitioner will have to pay court filing fees plus attorney’s fees. While the court may approve the reimbursement of such legal expenses from the conservatee’s estate, many lawyers will require petitioners to front the anticipated charges. A contested conservatorship may cost the petitioner tens of thousands of dollars. The court may decline to reimburse the petitioner or may provide only partial reimbursement.
  • The court may decline to order any conservatorship. Since the law presumes that each of us has sufficient mental capacity to make decisions for ourselves, the petitioner must prove by clear and convincing evidence (a high evidentiary burden) that a conservatorship is warranted. If Mom opposes the conservatorship and her court appointed counsel takes the position that Mom has adequate capacity, the petitioner may be unable to persuade the court to impose a conservatorship.
  • The court may select a person other than the petitioner’s nominee to act as conservator. Siblings often file competing conservatorship petitions, with each sibling seeking control over Mom to the exclusion of the other. Even if Mom in her estate planning documents designated Darla to act as conservator, Brad may persuade the Court that Darla’s appointment would not be in Mom’s best interests. When siblings accuse each other of wrongdoing with respect to Mom, the judge will often be inclined to name a neutral third party (such as private professional fiduciary licensed by the California Department of Consumer Affairs) to act as conservator, rather than trying to decide who is the “good” sibling and who is the “bad” one.
  • A parent may cut off communications with a child who seeks a conservatorship. The rival sibling may “spin” the conservatorship as a scary threat to Mom, such as by telling her that the goal is to remove Mom from her longtime residence and place her in a nursing home.
  • A parent may disinherit a child who petitions for conservatorship. A child who expects to receive an equal share of Mom’s estate upon her death may be reluctant to anger Mom by alleging in a public court filing that she is incapacitated. Mom may amend her will and/or her trust to disfavor Brad, or make gifts that favor Darla. Even if a conservatorship is imposed because of concerns about Mom’s mental capacity, she presumptively retains capacity to execute a will. As discussed in an earlier post, if you allege in your conservatorship papers that Mom amended her trust despite her mental incapacity, you may have to contest the trust amendment during Mom’s lifetime to avoid losing your rights under the doctrine of laches. And trust contests are an expensive form of litigation.

Many adult children consider the above pitfalls and elect not to start the conservatorship process. But, if a sibling or anyone else, has hijacked Mom so as to place her health and resources in jeopardy, conservatorship may be the only viable option to force a change for the better.