If someone has conservatorship and they are facilitating the sale of property for an elder, do they also need to hire a guardian AD Litem?

TMB, my only experience with GALs was for children, but I know others here will have more insight than I.

Just wanted to say that I think $2500 is on the high side to be a GAL just for one transaction, i.e., to sell a house.

I would also think that the order appointing this attorney as conservator would define his responsibilities. If you have a copy of that order, check it to see if it allows him to "facilitate" the sale of the house. If it's a function of his original guardianship appointment, I think it's a stretch to add an additional fee.

I assume he's billing on an hourly basis for his conservatorship work? If so, I'm wondering why he doesn't just bill for time and costs for the house sale as well.

However, it might be the norm in a conservatorship proceeding that he doesn't do anything beyond a limited range of activities.

But that's just my opinion based on working in law firms for decades.

I'm interested in reading what others more familiar with conservatorships than I have to say.

Thank you Garden. That was very helpful and I will pass it along to my sister and brother. They will be the conservators the lawyer handled the process but I think your info applies all the same.

I'm not sure about conservatorship but I know the financial POA I got for my dad the property people at the courthouse said was not sufficient to allow me to be able to handle real estate transactions for my dad; they said that required more

Thanks debdaughter. Did you use a guardian Ad Litem or something else to sell the property?

Just checked the DPOA for my father; it includes this provision:

"My attorney-in-fact may sell, transfer, convey,....dispose of ...any of my property, either real or personal. ... I specifically authorize my attorney-in-fact to sell and to execute and deliver a deed or other instrument or documents required for the conveyance of my residence located at...."

So Deb's POA might not have had a similar provision. But Dad's was drafted by an established estate planning and tax attorney, another reason why I recommend that people hire a real attorney and not just download forms from the Internet, which I think is somewhat equivalent to self-taught brain surgery.

If a conservator were involved, I would think that power would be included in the court order of appointment, but as I wrote earlier, it depends on the specific order.

TMB, am I correct in understanding that your sister is conservator, and that the attorney who prepared and handled the case was just that - the attorney and not the conservator? He may have intentionally not addressed or include power of sale terms... just thinking....as that would seem like common sense for a family member assuming the role of conservator.

garden - duh - maybe that's why I'm a little whacky - because, yes, my POA was just a do it yourself download off the internet so, yes, that is indeed why it didn't give me the authority to sell dad's house but, at the time, that wasn't really the issue anyway; we were just trying to get something done to give me access to his funds at his bank in case he ended up having to go into a nursing home, which, at the time he was in the hospital, so we couldn't have gotten him to an attorney anyway and which, well, we'd found this out 3-1/2 yrs. before, his that he'd used for his will, had left town, so he certainly didn't have one that would have come to the hospital and we hadn't been able to get dad to get a new one anyway, but they were trying to say he was going to have to go so just trying to be able to have the funds to do so, at least get in, in case that were so then we would have tried to figure out to have dealt with the rest later, but ended up not having to after all, though in a lot of ways, wish we had, since now have the situation on my hands.

so there you go, trying - sorry

Deb, I hope you don't think I was implying that you're "whacky" - most certainly not and I also hope I didn't offend you.

The whole issue of estate planning is so complex, and even more complex when the tax aspects are factored in. I know many people think the fees are high, and in some cases they are, but I hate to see people feel they have the issues covered when in fact the downloadable forms can be just nominal and ignore a lot of special situations.

And there's never the benefit of having someone knowledgeable. I know that I had to change some things after I learned more about the tax consequences.

I still haven't figured out all the step-up issues; sometimes when I read up on these issues I just get more confused.

I consider it something like fixing my car - I have absolutely no idea how to fix some the things that go wrong and would be afraid to try.

It's a complicated field - somewhat like brain surgery!

Be comforted in the fact that you're doing your best under very trying circumstances.

Thank you both! I appreciate all of this information and will send it to my sister. Yes she and my brother are to be co-conservators for Dad.

trying, hope things work out!

garden, no, I'm fine with it but I do so appreciate your kind reply; it really means more than you know - little bit of backstory - dad had wanted to take care of all that but mom had heard so many of the horror stories of parents doing that and their kids taking advantage that she apparently just didn't trust - hope it wasn't really that she didn't trust me but I certainly didn't feel I could push the issue and hub and I were just talking this morning - see if you - or anybody - has seen or at least felt they have, this scenario, that when both parents are still alive, they can somewhat mask each of their situations as they possibly, say, "prop" each other up, as in we could somewhat see things with dad but he was always saying it was mom with the issues but it seemed as if as long as they were both here they were somewhat managing but it seemed almost as soon as mom was gone that even though dad managed to get a few things done, like put me on his checking account and tried to get me on his other banks funds, when it came to doing the POA he'd always talked about it was like he didn't really understand anymore, so we just kinda let that rock on, partially because of the issue with the bank funds; even though he wanted it done the bank dragged their feet regarding it, not wanting him to do it, not really sure what that was about, until we then started having other, more physical/medical issues, as well as some other issues regarding his houses, which, true enough, not having the POA led to some sticky situations but still didn't led to getting it done, I guess, because we did manage to get through them but also led to seeing the need for getting him more help, which is what we then began to work on and then getting him assistance to help pay for it, so...one thing and another until the whole situation with the hospital, plus, also, somewhere along the way, or maybe you might say it was even a going in reverse as he got worse, that he began to trust me less, not in the same way as mom, but just in a - as I was born to him late in life - and - me being a "girl" - he'd before just not really considered me quite an "adult" ever, looking more to nephews that he had who were actually old enough to be my father, plus, they were "guys", so took one of them coming to actually get him to finally sign the POA, even though he didn't really have a problem signing it over to me; he just needed their assurance it was ok and time to do so; so, hence just somewhat nominal to just get the immediate situation taken care of, which, thankfully, and thanks to another person at the bank, at another location, who turned out to somewhat know them - mom and dad, or more so, know dad, better, that he would want and wouldn't be a problem for me to be on his bank funds, plus, of course, then having the POA, got that taken care of then; got POA on file, then, yet later, yet another person, at yet another location, brought up the whole POD thing with it so would carry over when he passed away, which I hadn't thought anything about; by that point, just trying to take care of the needs of the time. Never thought much about taxes either, since he wasn't having to pay anyway - learned more about that when started trying to do the same thing with hub's aunt and uncle, who she wanted me to get her the same help to pay for caregiver as got dad but quickly learned the difference with higher income; matters not if you've gotten yourself into debt and no longer have that income, you feel anyway, to pay for caregiver, too bad; they're not going to just give you free money, even if what you have left you say is to pay for your funeral/burial expenses - maybe you should have a life insurance policy, like trying's mom has.
But, oh, that whole tax consequence thing we learned a hard lesson ourselves with our own situation - wish there was a place I could tell that story

step-up issues? seems I've heard of that - but do you mind explaining a little bit, to help me out there? thanks

and, hey, may not have any lawyers in the family but do have a son who's a mechanic, so that's pretty cool

and for the most part I don't even consider our situation that complicated and look what I got into - yea, these other people I'd definitely recommend talking to a lawyer

not to just deal with the house, like trying is - glad for places like this forum - wish I'd had it earlier, though not sure could have actually implemented it but still nice to have the bounceback - thanks so much, garden

Deb, I'll try to explain the step-up issues as I understand them, but let me do some quick research to see if I can find an attorney's website that might explain them more concisely. Back later!

If there is a court appointed guardian/conservator for an adult, they do not need a guardian ad litem. What you might want to clarify is if in your state your sister has *all* the powers necessary to sell that property. It's not automatically included. A judge will grant the guardian the least powers necessary to do the job. She could just have the powers to make healthcare/medical/clothing/residence decisions. The attorney may be trying to say that she needs to go back to court to request additional powers to handle a real estate transaction.

In some states the guardian is a different designation than the conservator. It can also be called guardian of the body vs. guardian of the estate. Her court order and letters will explain exactly what her powers are.

A conservator in the state of Massachusetts, must seek the approval of the court to sell the wards real estate property. The amount the attorney quoted is not unreasonable, considering you are dealing with the Massachusetts Probate Court System. I would not recommend a person to maneuver this complicated court system without a lawyer.

Thank you all. It looks like Army is right. A guardian ad litem is necessary. The fees might be on par with what lawyers charge but they are still prohibitive. We are looking into applying for legal aide services for future dealings.

I have to be picky.

An ad litem guardian is for the purpose of a single court litigation. This guardian will not be available after the case is done to take care of other matters.

I'm my mom's guardian and conservator and am filing a petition for permission to sell her property to pay for care. I don't need to get another guardian for this, as disposing of assets is part of the job. It's curious to me that you would need to have another temporary guardian get involved when there already is a permanent guardian.

You might find some discounted legal help through Volunteers of America. They can have legal clinics and by the hour help from retired attorneys. You'll have to look at the VoA site in your area. In my state, the only free help is for domestic abuse situations.

Make sure that your attorney lets you take advantage of options to avoid court fees when possible. There are other forms to request that.

TMB, sorry to learn that you'll have to have a GAL for the sale. Army, I'm surprised that $2500 is on par for a sale. Must be Massachusetts attorneys charge more than Michigan attorneys as that's way out of line for a sale here. But then Massachusetts is probably more expensive in other areas (certainly Boston cost of living) than Michigan.

Interesting questions on this thread. I'm glad TMB now has her answer.