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FAQ

What is a Professional Fiduciary?

A Professional Fiduciary is a person who assumes responsibility for a position of trust with the knowledge that she may be paid for the work, but cannot otherwise benefit in any way from the relationship.

A Professional Fiduciary can serve by Court appointment as a Guardian, Conservator, and Representative of an estate. The Court may choose to appoint a Professional Fiduciary as a neutral third party to protect vulnerable and incapacitated people from abuse, neglect and exploitation. Without Court intervention, a Professional Fiduciary may serve by agreement as a Trustee, Representative Payee for Social Security, or as an Agent under a Power of Attorney.

Professional Fiduciaries are becoming increasingly useful in complicated probate matters, and are often appointed or selected when difficult family dynamics prevent a family member from serving or serving alone.

A Professional Fiduciary is State licensed, insured and bonded, and must adhere to strict professional guidelines.

What is a Power of Attorney?

A power of attorney (POA or DPOA) is a written authorization for another to represent or act on someone else’s behalf in private affairs including financial, legal matters and health care decision making. To create a valid POA, the person signing the authorization must have the ability to understand and appreciate the scope of the authorization and must enter into to relationship knowingly and willingly. In other words, the signer must know what she is signing and have a wish to appoint another to act on her behalf. In addition, the signing of the POA must be witnessed and notarized by a Notary Public.

What is a Conservatorship?

A Conservatorship is a Court matter wherein a Judge finds that a person lacks legal capacity to make her own decisions due to Dementia or other factors, and/or that she is prone to financial exploitation by others. The Judge appoints a responsible person (the “Conservator”) to care for and manage the affairs of another adult (the “Conservatee”). The care includes making decisions for healthcare, arranging inhome caregivers if necessary, finding a new home if appropriate, and managing the financial assets or estate of the adult.

What are the different types of Conservatorships and Guardianships?
How are they used?

There are 3 basic types of Conservatorships for adults in California.
They are:

1. Probate Conservatorship is appropriate for a person who is unable to adequately manage her personal affairs and unable to meet her basic needs of food, clothing or shelter due to Dementia or other cognitive impairments. It is also appropriate for a person who is prone to undue influence to the point that she becomes the victim of fraud, financial exploitation or theft. A Probate Conservatorship must be established by Court proceedings, with proper notice to the person who may be conserved (Proposed Conservatee), his family members and other significant people. A Probate Conservatorship can be initiated by just about any adult. If granted by the Court, the conservatorship is expected to be permanent, unless there is a significant change in circumstance that convinces the Court it is no longer necessary.

2. Limited Conservatorship is appropriate to protect adults with developmental disabilities from harm or exploitation while allowing for the development of maximum self-reliance and independence. Upon attaining the age of 18, a child will be considered a legal adult, with the ability to make her own life decisions regardless of any cognitive or developmental disability. The child’s parent will no longer have legal authority to make decisions for the child regarding healthcare, education, finances, etc., unless a Limited Conservatorship is established. A Limited Conservatorship is established through a Court proceeding, wherein the Judge grants an individual or individuals the legal responsibility for the adult with a developmental disability. The appointed person is called the Conservator.

3. An LPS Conservatorship (named for The Lanterman-Petris-Short Act) is appropriate when an adult is so impaired by a disorder listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM) that she is considered “gravely disabled” and a danger to herself or another. In situations such as this, the impaired individual requires assistance and protection. The only person qualified to file a Petition with the Court requesting an LPS Conservatorship is the director of the County Mental Health treatment facility. If the Court agrees that the individual is gravely disabled, it will appoint another person (Conservator) to be responsible for the mentally ill person (Conservatee). Because it is assumed that with proper care and medications the Conservatee’s condition will improve, an LPS Conservatorship is not expected to be permanent.

Which is better? Power of Attorney or Conservatorship?

A Power of Attorney (POA) is a less restrictive way to assist a person who is unable to manage his own affairs than is a Conservatorship. For this reason, the POA is a preferable method of assistance. In order to use a POA, the person needing assistance must have the ability to understand and appreciate the document he is signing and he must be signing it without undue influence. In other words, he must have legal capacity to sign the POA and must sign it willingly in an effort to appoint another person to help him. Often an elderly person who requires help is unwilling to sign a POA because he fears he will lose her privacy, independence and freedom. As he ages, he may have increasing Dementia that ultimately makes it impossible for him to agree to assistance under a POA, because his cognitive abilities are compromised and he can no longer “knowingly” enter into a contract such as a POA.

Will a Trust or Estate Plan help me avoid Conservatorship?

Yes. If your loved one has made an Estate Plan that addresses the loss of capacity, and in it has designated an individual whom she wishes to become her Agent if such an event occurs, it is very likely a Court will defer to the wishes of the person who has made the Estate Plan. If so, the appointed Agent may serve and a Conservatorship will not be necessary.

What are some advantages of using a Professional Fiduciary?

A Professional Fiduciary is licensed by the State of California. To qualify to sit for the required examination she must have, at a minimum, a college education. If she has not had at least five years’ actual experience serving in a Fiduciary position, she must also have completed a specific course of study.

Once a prospective Professional Fiduciary qualifies to sit for the licensing exam, she must pass two exams; one at the National level and another at the State level. Following a passing score on both exams, the prospective Fiduciary must be fingerprinted and pass a background check. If the prospective Fiduciary is cleared, she must then obtain membership to at least one organization that vets Fiduciaries. Most Fiduciaries will obtain liability insurance, although it is not mandatory at this time.

Professional Fiduciaries are required to obtain continuing education credits and adhere to the highest standards of conduct. As such, they have a duty to advise and follow the wishes of the individuals they serve. They must also have a thorough knowledge and understanding of the California Probate Code, which is designed to protect Conservatees and other vulnerable individuals.

In addition to the formal requirements, a Professional Fiduciary should have knowledge of a wide variety of local resources and know how to use them effectively. This combination of education, experience, knowledge, and liability insurance relieves family members and friends of the stress of caring for a loved one in a Fiduciary capacity.

Can I use your professional fiduciary services to help me serve as an Agent under a Power of Attorney or as the Conservator of my loved one?

Yes. A Professional Fiduciary can serve as a co-conservator with an appropriate family member. If there is a Trust and a named Successor Trustee, a Professional Fiduciary can be very helpful in guiding and assisting the Trustee in managing the affairs of the Beneficiary of the Trust.

If you have additional questions about how we can assist you and your loved one using the lowest level of intervention and least restrictive measures, please contact us with your questions or concerns. We are here to help you and your loved one, and truly believe that no problem is too big or too complicated to solve.

Contact:

ph: (805) 966-0073 
fx: (805) 585-5413
email: [email protected]

Office Location:

1482 East Valley Road
Suite 16
Montecito, CA

Mailing Address:

PO BOX 92110
Santa Barbara, CA 93190