In California, a “ward” is someone who is mentally disabled and cannot make sound financial and / or health care decisions. A “conservator” is the person appointed by the court to handle these decisions. But sometimes, a conservator creates unnecessary conservatorship and financially exploits the elderly ward.

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

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

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

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

The examiners are not “investigators.” They do not have the time or resources to telephone all the people (and businesses) – that the guardian has included in the accounting – to see if they actually provided care or other services to the conservatee.

Again, the examiners, and ultimately the judge, must rely on the statements made by the conservator, under penalty of perjury.

What’s the score? Unfortunately, if no family member or loved one comes to the hearing and objects, the court will approve the accounting, and this approval generally includes an award to the conservator for the requested fees.

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

There is an exception, in which the acts of the conservator can be challenged after the court order has become final. Section 2103 of the Probate Code allows a later challenge if it can be shown that the conservator obtained the final order by conspiracy, misrepresentation, fraud, or the willful omission of a 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 conservator’s false representation (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.

The “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 might object when he learns the truth about ghost caregivers). 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 ward is mentally incompetent and has no attorney, who is the “extrinsic” fraud to be committed?

The Elder Abuse and Dependent Adults Civil Protection Act (EADACPA) was passed (with numerous amendments) to add additional protections for the vulnerable elderly, not to limit any rights.

Without legal counsel and without an interested family member present to advocate for the elder, who will protect that ward?

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

Stay tuned.