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The Guardian and the Conservator

on April 24, 2015

As much as life may seem intent on slapping us sideways at times, it’s a fairly self-evident fact that we exercise a lot of control in our lives. People carry their businesses in their pockets, keep alarms and timers for tracking everything from when we need to wake up to when the turkey needs to come out of the oven. We can track our finances online, deposit checks from our phone. We are in constant, unceasing contact with one another, whether it be over the phone or through text or through social media. How terrifying it is then, when we are rendered unable to exercise control over any of this, in the microcosm each of our lives represents.

conservatorship hawaiiIn light of the tragic scenario where we are rendered unable to care for ourselves, whether it be due to age or to infirmity, the court can appoint a Guardian and a Conservator. Think of them as your Nurse and your Banker, respectively; the Guardian will assume responsibility for personal care and well-being of their charge, and the Conservator is appointed to take over management of one’s financial affairs. One person can also serve both roles, depending on what’s manageable and convenient for everyone. Both can be designated in either a will or a trust, and both are held accountable to the courts via annual reports.

Regardless of court oversight, however, these are positions of great power over individuals who are often helpless to care for themselves. There are cases where court-appointed conservators have abused this power: in San Diego, a professional conservator handed off half of a $1 million estate to her son, a financial advisor, to invest for the estate. While taking commissions from the investments, the son lost $100,000 of the $500,000 inappropriately entrusted to him by his mother. The court, overwhelmed by the pure volume of cases handed to it daily, let it slide. Contests over guardianship are also not uncommon – they are, in fact, all too frequent and altogether sombering tales of family infighting, abuse of power, and distress.

The lesson here is the importance of having people in our lives whom we can trust, not only to have in our lives, but to literally care for us when we’re no longer capable of caring for ourselves. Have a Trust and Advance Health-Care Directive written, and choose your potential caretakers well (for your financial affairs and for your personal well-being), lest your intentions for yourself and your estate be distorted and abused.

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