When most people think about creating an estate plan, they usually focus on what will happen when they die. They typically do not consider what their wishes would be if they were alive but unable to manage their own affairs (in other words, if they are alive but incapacitated). In many cases, failing to plan for incapacity can result in families having to seek court involvement to manage a loved one’s affairs. It does not matter who you are, how old you are, or how much you have—having a proper plan in place to address your incapacity or death is necessary for everyone. Recently, comedian and late night talk show host Jay Leno had to seek court involvement to handle his and his wife’s estate planning needs due to his wife’s incapacity.
What Is a Conservator?
A conservator is a court-appointed person who manages the financial affairs for a person who is unable to manage their affairs themselves (also known as the ward). The conservator is responsible for managing the ward’s money and property and any other financial or legal matters that may arise. They are also required to periodically file information with the court to prove that they are abiding by their duties. To have a conservator appointed, an interested person must petition the court, attend a hearing, and be appointed by a judge. This can be very time-consuming, and there are court and attorney costs that must be paid along the way.
Jay Leno’s Petition to the Court
In January 2024, Jay Leno petitioned the court to be appointed as the conservator of the estate of his wife, Mavis Leno, so that he could have an estate plan prepared on her behalf and for her benefit. Unfortunately, Mrs. Leno has been diagnosed with dementia and has impaired memory.[1] Her impairment has made it impossible for her to create her own estate plan or participate in the couple’s joint planning. According to court documents, Mr. Leno wanted to set up a living trust and other estate planning documents to ensure that his wife would have “managed assets sufficient to provide for her care” if he were to die before her.[2] Right now, Mr. Leno is managing the couple’s finances, but he wanted to prepare for a time when he is no longer able to do so.
On April 9, 2024, the court granted Mr. Leno’s petition. According to the court documents, the judge determined that a conservatorship was necessary and that Mr. Leno was “suitable and qualified” to be appointed as such. During the proceedings, the judge found “clear and convincing evidence that a Conservatorship of the Estate is necessary and appropriate.”[3]
Although there was a favorable outcome in this particular case, it still took several months for Mr. Leno to be appointed by the court. In addition to the initial filings and court appearances, there will likely be ongoing court filing requirements to ensure that Mrs. Leno’s money is being managed appropriately. Had they prepared an estate plan ahead of time, much of this time and hassle would likely have been avoided.
Important Takeaways
While many people may dismiss the Lenos’ experience as something that applies only to the rich and famous, the truth is that you could find yourself in the same situation (although with a smaller amount of money and property at play) if you are not careful. Let’s use this opportunity to learn from their mistakes.
Spouses are not automatically able to step in for each other in times of incapacity or death. Many people are under the impression that because they are married, their spouse can automatically step in for them upon their incapacity or death without any estate planning tools in place or the need for court involvement. The Lenos’ story demonstrates that this is simply not the case. Once a person turns 18, no one (not even a spouse) can automatically step in to manage their finances or healthcare decisions without either the person’s prior consent (usually in the form of estate planning documents) or court involvement.
Proper estate planning documents could have prevented this. If Mrs. Leno had had a proper financial power of attorney granting her husband the authority to create an estate plan for her, it is quite possible that Mr. Leno would not have had to petition the court to become her conservator, as he would have already possessed the authority through the financial power of attorney. Also, if she had had a financial power of attorney, she likely would have also had a last will and testament or revocable living trust created at the same time, which is what Mr. Leno was ultimately seeking to accomplish. Preparing these documents before her incapacity would have allowed Mrs. Leno to specify her wishes while she was able to communicate them.
While the intent is to avoid probate court, sometimes it is necessary. When an adult person does not have the ability to manage their own affairs, someone has to be able to step in on their behalf. But what happens if the person has not created an estate plan? State law will usually specify a process for ensuring that someone is appointed to manage an incapacitated person’s affairs and that they are properly cared for. However, there are usually delays and additional costs associated with going through this court process as compared with using a financial power of attorney.
Having a plan in place is better than relying on a state’s default rules. While the Lenos’ situation seems to have been resolved positively, conflict can arise when relying on a state’s rules. Multiple family members may want to manage their loved one’s affairs, and any disagreements may need to be refereed by a judge. This infighting will become a matter of public record and can also delay the entire process. Also, if you do not have a close relationship with your family, relying on the state’s laws relating to priority of appointment may give an estranged family member the authority to make decisions on your behalf even if that would not be the person you would have chosen. It is better to proactively create an estate plan so that you can be in control of appointing the person you want to act on your behalf.
We can help you and your loved ones regardless of where you find yourself in the estate planning process. Whether you are looking to proactively plan to ensure that your wishes are carried out during all phases of your life, or if you need assistance with a loved one who can no longer manage their own affairs, give us a call.
[1] Nardine Saad & Meg James, Jay Leno Clarifies Why He Set Up Conservatorship Amid Wife Mavis’ Dementia Battle, L.A. Times (Jan. 30, 2024), https://www.latimes.com/entertainment-arts/tv/story/2024-01-30/jay-leno-conservatorship-mavis-leno-dementia-will.
[2] Id.
[3] Alli Rosenbloom, Jay Leno Granted Conservatorship of Wife Mavis Leno’s Estate, CNN (Apr. 10, 2024), https://www.cnn.com/2024/04/09/entertainment/jay-leno-granted-conservatorship-of-wife-mavis-lenos-estate/index.html.
