Contested Conservatorships – Where’s The Love?!

“…for better for worse…in sickness and in health, to love and to cherish, till death us do part.”

A serious illness, such as dementia, puts such vows to the test. I certainly do not profess to be an expert on either love or dementia. But, as an elder law lawyer and court-appointed counsel for conservatees, I have observed some of the best and the worst in spouses, adult children, other relatives and friends in dealing with a loved one with dementia. Moreover, the legal process involved – most frequently conservatorships – can be part of the solution, part of the problem, or both.

Spouses seeking a conservatorship of a spouse with dementia appear most often to be genuinely concerned about looking out for what is in the best interests of the incapacitated spouse. However, there are times when that is not the case, such as when the spouse physically and/or financially abuses the frail spouse. I have been appointed as counsel on a couple of such cases and recently had a case in which the wife and her family were the perpetrators. When I visited the husband/conservatee, he indicated how heartbroken he was and that he wanted a divorce, which could be sought on his behalf through a conservator of the estate or guardian ad litem.

Often in contested conservatorship cases it is the adult children who are fighting over control of the incapacitated parent/parents. In the most extreme cases, brotherly or sisterly love is replaced by sibling rivalry. Fortunately, through mediation families will sometimes come together and attempt to cooperate. Unfortunately, many times they will not come together, and unpleasant, expensive litigation ensues. The litigation can be highly charged and costly and can take a tremendous toll on the parent with dementia. The outcome of such family battles frequently leads to court appointed counsel recommending and the court appointing a private professional fiduciary to serve as conservator.

One particularly contested conservatorship case for which I was court-appointed counsel for both spouses with dementia illustrates many of the various issues that arise in such a case. Difficult issues arose among the adult children, in-home caregivers, and private fiduciaries. Sides and conservators changed. Despite all the legal conflict and drama surrounding their care, when I met with the elderly couple they were very nice, sweet and loving towards each other and just wanted to stay together and be cared for at home as long as possible. They also appeared to equally love their children, even though they were the ones fighting over who should be in control over them. Unfortunately, for some time the children would not agree on almost anything. A heated mediation was held, as well as multiple court hearings. An issue arose with the in-home caregivers taking sides and providing inappropriate care. A geriatric care manager was brought in and her assessment resulted in several changes, including replacing the caregivers. Sadly, during this time, the wife died, leaving the husband devastated and depressed. Another fight for control over the husband among the children ensued. Fortunately, through a family meeting with counsel – along with the threat of a private fiduciary taking over control – the matter was informally resolved (at least for the time- being). The husband appeared to gradually improve with new caregivers, better family cooperation and the companionship of his dog. (The value of unconditional love of a pet to an individual suffering from dementia, or  anyone, for that matter, cannot be understated. )  In contested conservatorships, there can literally and figuratively be “a dog in that fight!”)

In many ways, contested conservatorship cases are a microcosm of the best and worst in human nature: running the full gamut from hate, abuse, greed, jealousy, selfish love, selfless love, etc., to unconditional love.

Michael LaMay is an attorney with the Bray & Bray Law Offices in Martinez, specializes in elder abuse litigation, will & trust litigation, probate, conservatorships and estate planning, and serves as a board member of the Elder Law Section. He celebrates his 15th Wedding Anniversary on Valentine’s Day.

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