In California, a “ward” is someone who is mentally incapacitated and unable to make sound financial and/or health care decisions. A “conservator” is the person appointed by the court to handle these decisions. But sometimes, a guardian creates an unnecessary conservatorship and financially exploits the elderly ward.

How can this happen when court authorization is required and the court is supposed to monitor the conservator’s activities?

This is a real case: A guardian files a false accounting with the court, claiming that he personally interviewed, hired, and paid a particular woman to provide elder care (ward) services. An accounting is required to report to the court all of the conservatee’s assets, income, liabilities, and disbursements each year (or two years).

The truth is that this supposed caretaker was never interviewed or hired by the curator.

The conservatee is not represented by counsel, and the law does not impose a duty on any family member to investigate possible inaccuracies in the conservator’s accounting before the court. The court uses probate “examiners” who review the conservator’s accounting, but the examiner’s role is limited to checking, for example, whether the required accounting information is presented in the proper format required by the court.

Examiners are not “investigators”. They don’t have the time or resources to phone all the people (and companies) the guardian has listed to see if they actually provided care or other services to the conservatee.

Once again, the examiners, and ultimately the judge, must rely on the representations the conservator has made, under penalty of perjury.

What’s the score? Unfortunately, if no family member or loved one shows up at the hearing and files an objection, the court will approve the accounting, and this approval usually includes compensation to the conservator for the requested fees.

The court order will then become “final” if no challenge has been filed within the prescribed time.

There is one exception, where the conservator’s actions can be challenged after the court order is final. Section 2103 of the Probate Code allows for a subsequent challenge if it can be shown that the conservator obtained the final order through conspiracy, misrepresentation, fraud, or willful omission of material fact. Wow… That sounds wonderful. There is an axiom in the law that says: “For every evil there is a remedy.”

Unfortunately, the appellate courts that have interpreted this statute conclude that the types of fraud must be “extrinsic.” What does that mean?

Hmmm…the “real” fraud was the guardian’s false statement (contained in his accounting) that a particular woman was hired and provided care services to the ward. Remember: the court’s approval of the accounting became “final” because no one challenged it in a timely manner.

“Extrinsic” fraud must be something else, something “outside” of the actual fraud. What could that be?

Well, the cases that have interpreted Section 2103 say it means something like: Tell the conservatee not to attend the court hearing (for fear that the conservatee will object when he learns the truth about the ghost caretakers). Or arrange for the conservatee to be at a restaurant (out of town) when the court hearing is held. In this way, the ward would have been intentionally kept in the dark about the actual fraud. This type of deception is “extrinsic” to the actual fraud.

But when the court has already determined that the conservatee is mentally incompetent and has no lawyer, against whom will the “extrinsic” fraud be committed?

The Civil Protection Law against the Abuse of the Elderly and Dependent Adults (EADACPA) was approved (with numerous amendments) to add additional protections to the vulnerable elderly, without limiting any rights.

Without legal advice and without the presence of a concerned family member to defend the elder, who will protect that ward?

Unfortunately, this issue, and the effect that EADACPA may have by possibly superseding Section 2103, has not been raised before the appellate courts to date.

Stay tuned.