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Elderlaw: 12/01/2016

Elderlaw Advocates

Dear Len & Rosie,

My friend has resided in a nursing home due to stroke for eight months and has a county conservator who is now filing for Medi-Cal. The conservator is selling both of his cars, because they are depreciating assets and because my friend will never drive them again because he is paralyzed on his right side. Can a conservator do this? I thought one car was exempt. The county conservator also said he will sell my friendís house when my lease runs out in another year. Can he do this? Do we need to file a petition and try to get a private conservator who would better serve my friendís interests and protect his assets?


Dear Marian,

Itís unfortunate that your friend did not have a comprehensive estate plan, or that his estate plan more or less failed. Conservatorships are to be avoided if at all possible, although they are very useful in protecting people from elder financial abuse. If your friend had a revocable trust or even a good durable power of attorney, he would not be in a conservatorship today, and his home would not likely be sold.

What must have happened was that your friend became incapacitated, and no one stepped forward to take over his affairs, either with a power of attorney or by petitioning the court to be appointed as conservator. Because your friend could not take care of himself, and no one stepped up to take care of him, the county Public Guardian was appointed by the court to provide for his needs.

When the Public Guardianís office serves as conservator, it usually consolidates the conservateeís assets to make it easier to administer the estate. Thatís why the Public Guardian wants to sell your friendís home and vehicles. However, this is not the best thing to do. Your friend can continue to own his home while receiving Medi-Cal benefits. By selling the home, the conservator will turn an exempt asset (the home) into a non-exempt asset (cash). Not only will your friend lose his Medi-Cal benefits, he may have to pay capital gains tax as well.

A conservator will never get in trouble for spending money on the conservatee. The Public Guardian is doing nothing illegal, but itís not really acting in your friendís best interest. Even if his home will be subject to Medi-Cal estate claims after his death, heís better off being on Medi-Cal instead of paying privately for his care, because it will cost him less in the long run.

You or another friend or relative could petition the court to take over the conservatorship, but the court is not likely to remove the Public Guardian as conservator unless you can prove it mismanaged your friendís estate beyond refusing to do Medi-Cal Planning. A better approach would be to petition the court to appoint an independent attorney to represent your friend as conservatee. This attorney can stand up for your friendís rights, and perhaps prevent the Public Guardian from selling his home.

Len & Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at (707) 996-4505, or on the Internet at Len also answers legal questions each weekday, Noon-1 p.m. and Sundays, 4-7 p.m. on KGO Radio 810 AM.

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