Elder Care

Protecting Your Estate

Marshalling the Assets

Once a conservatorship or guardianship is opened, the court in which it is filed now has full jurisdiction over all of the affairs of the person who is claimed to be incompetent. The first job for the court is to "marshall" all of the assets of the incompetent person. In order to make various decisions and to order certain actions with respect to the affairs of the incompetent person, the court must know what the affairs of the person are. This means that the person appointed the conservator by the court must present a list of all assets and liabilities to the court, along with proof of each in the form of documents which can be examined by the court, such as deeds, bank account statements , etc. This is generally known as an inventory, but may have different names depending upon state law.

This part of the process often takes several months, and can involve a substantial amount of work. Often, the person appointed by the court may not know exactly where all of the assets of the person are located. Also, there are often a number of family members which the court would like apprised of the appointment of the conservator or guardian in the event that they have any claims or objections or other information to advise the court.

During the time that this inventory is being prepared, the court is able, upon formal requests, to make various orders as to the estate. Some of these decisions may substantially impact other family members or friends or creditors, and in most cases, the court is able to hear the arguments for deciding upon a particular action from all parties concerned. This "hearing" may be in the form of a written argument or brief and may not involve in-court hearings. Thus, if you are prepared to request a conservator action from the court, or if you oppose any action by a conservator or guardian, you should know the rules in your court, so that you can comply with them. No matter how solid your position is, if it is in the wrong form, many courts will not consider your arguments, and it will be as if you were never heard at all. This is always also a good time to consult with a lawyer who practices extensively in this area.

Several types of orders which can be issued by the court may involve minor matters, such as permission to change the locks on the home of the incompetent person, or granting permission to close several bank accounts which contain less than $50 each. Other court orders can be quite substantial, including an order allowing the conservator or guardian to rent the house of the incompetent person, an order allowing the sale of the home of the person, an order preventing the opening of the safe deposit box of the conservatee until the court ensures accountability, an order withdrawing several thousands of dollars from an account of the person, or an order allowing the sale of $100,000 of stocks and bonds owned by the incompetent person.

By reviewing the sections on Durable Powers of Attorney, one can see all of the powers that a person can give to his/her agent in the event they become disabled, or incompetent. If a conservatorship or guardianship is necessary, the court can allow its own agent, the conservator, to perform these powers. Needless to say, it would be nice to guarantee that the person acting for you is the person you selected, and that the actions being taken are the ones you authorized, not the decision of a judge whom you have never met.

Protecting Your Estate
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