Ades – Hi, welcome back to primetime, I’m Brian Ades and today were continuing our conversation with Scott Schomer the founder of the Schomer Law group that focuses on probates, conservatorship, and wills.
Ades – Can you tell me a little bit about what a conservatorship is and what it isn’t.
Schomer – Certainly. A conservatorship has nothing to do with post death, a conservatorship only deals with the living as we like to say. Now most Californians are probably not familiar with the term conservatorship but they probably some familiarity with the term guardianship. A conservatorship is guardianship for an adult, for a dependent adult. So it’s somebody who perhaps has Alzheimer’s, perhaps has had a stroke, or perhaps has had some kind of injury where he or she cannot make decisions for him or herself and what happens is a loved one or interested party petitions the court and says my friend Joe is no longer capable of managing his affairs we’d like to appoint someone to be the conservator. And the conservator is a manager. That doesn’t mean you have to change Joes clothes or feed him every day but what it does mean is you’re responsible for Joes welfare. It’s the government’s plan if you’ve done no planning. The much preferable method is to have powers of attorney in place that allow you to do this privately without court intervention. The power of attorney for finance allow someone to manage the finances, and usually works with a trust. The advanced healthcare directive is the document that allows someone to make medical decisions for the adult, you have these two documents in place there’s no need for a conservatorship.
Ades – Without being an attorney you can be a power of attorney. Can someone be a power of attorney for more than one party?
Schomer – Absolutely, you would designate someone called an attorney in fact. An attorney in face is not an attorney at law, that’s what I am; an attorney in fact is simply an agent, it’s someone you empower to go do things on your behalf pursuant to a set of instructions set forth in this document. In other words, here are the rules I want you to follow and you can appoint anybody and anybody can serve as attorneys in fact for a number of people.
Ades – Are there checks and balances in place for that attorney?
Schomer – There can be. It depends on your feeling. The ultimate check and balance is a conservatorship, now I realize a second ago I said that if you write one of these a conservatorship isn’t necessary but on occasion somebody will take advantage of somebody under power of attorney and use it to divert assets, in that situation that’s where the probate core can come in and stop that type of abuse and theft in some cases.
Ades – It seems to me, just being an attorney that you’re mostly dealing with problems.
Schomer – Well Brian, I like to think that my practice really goes into two divisions. One is the planning, that’s the side that probably makes me the happiest. I get a significant core of my business from people that either didn’t do the plan or cut corners or went to an online service to get something done and find they’ve created a bigger mess and it’s heartbreaking.