TV icon Jay Leno and his wife, Mavis Leno, have been married for 43 years — and by all accounts they are still in love. Mavis, 77, suffers from dementia, and according to a recent court filing, she has been “progressively losing capacity and orientation to space and time for several years.” This is why Jay Leno, 73, has filed to be the conservator of her estate.
On Friday, January 26, 2024, Jay Leno petitioned in a Los Angeles court filing to make sure his wife’s estate plan “is correctly executed” because she “presently lacks the necessary capacity,” according to the documents. The court documents said that Leno “has always handled the couple’s finances throughout their marriage” and he seeks to create a trust for their joint estate that would “ensure Mavis has managed assets sufficient to provide for her care” should he die before her.
Leno also stated in his petition that he “wishes to create a trust to hold each of his and Mavis’s one-half interest in their community property.” Leno also requested to create a revocable trust and will to provide for Mavis and her brother, court documents said. The couple does not have children.
Doctor’s Report States Mavis Is Unable to Attend Hearing, Yet Petition Form Says She Is “Able but Unwilling”
A doctor’s report included in the court documents, dated Nov. 28, 2023, describes the severity of Mavis’ dementia and her symptoms. The doctor indicated that “it is my professional opinion that, due to her condition, Mavis is unable to meaningfully participate in the hearing on the Petition to Appoint a Probate Conservator nor would she understand the nature, force or effect of the hearing should she attend.” Yet, the petition form stated that Mavis Leno is “able but unwilling” to attend the court hearing on April 9 regarding the conservatorship, but “does not wish to contest the establishment” of the legal arrangement. She also “does not object to Jay serving as the conservator,” according to court documents.
We assume that since Mavis and Jay were happily married for 43 years, she would trust her husband to handle her affairs in these circumstances. But, all of this would have been much easier, and the conservatorship could have been completely avoidable if Mavis had simply signed a Power of Attorney naming Jay as her agent when she still was of sound mind. Better yet, all of the estate planning documents that Jay Leno is asking to have the court allow him to create could have (and should have) been created while his wife was still mentally competent. Did Jay and Mavis Leno never think of doing estate planning prior to her becoming allegedly incompetent? Or was Mavis unwilling to do estate planning while she was competent, as hinted at by the previously-mentioned court petition which stated that she is “able but unwilling” to attend the court hearing? Perhaps she was also “able but unwilling” for some unknown reason to participate in estate planning while she was competent?
How Do Conservatorships Work?
When a person is considered to have severely diminished mental capacity, a loved one, or the local county or city where the person resides, can petition a local court to have that person declared legally incapacitated and to grant someone conservatorship to make legal and financial decisions for the person with diminished mental capacity.
Many people get guardianship and conservatorship confused, and the fact that the Lenos reside in California does not help with this confusion, because California law is itself very confusing in this regard, in that California uses the term conservatorship to also include what would be called in most states a guardianship of an adult.
A guardian in most states, including in Virginia, Maryland, and DC, is a person appointed by the court who is responsible for the personal affairs of a person with diminished mental capacity, including responsibility for making decisions regarding the person’s support, care, health, safety, habilitation, education, therapeutic treatment, and residence. A guardianship may be a total guardianship or a limited guardianship. Read more about guardianships and conservatorships here. Here are some more details about conservatorships:
- In California, where the Lenos reside, a conservatorship is used for someone who is “substantially unable to manage his or her own financial resources or resist fraud or undue influence.” This is basically the same definition as in most states. But in California, conservatorship is also used for a “person who is unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter” — this latter use of the term being what in most states is called a guardianship.
- In Virginia, DC, and Maryland, a conservator (called a financial guardian or “guardian of the property” in Maryland, as opposed to a “guardian of the person”) is a person appointed by the court who is responsible for managing just the legal and financial affairs of an incapacitated person. A conservatorship may be a total conservatorship or a limited conservatorship (when financial assistance is needed only for specific matters). The conservator, as the appointee put in charge is called, may be a family member, a close friend, or a court-appointed professional.
- A conservatorship can be dissolved by the court, though it’s rare that a person successfully asks to be released. The burden is on them to prove that they have regained their mental capacity.
- Conservatorships can last decades, because few of the circumstances that lead to them are temporary.
- Although specific laws surrounding conservatorships differ from state to state, the allegation that a person does not have the capacity to make their own decisions is one that needs to be proved in court.
Why a Power of Attorney Is a Better Option than a Conservatorship
A Power of Attorney is a legal document created by one person, known as the principal, to give another person, known as the agent (sometimes called attorney-in-fact), legal power to act on behalf of the principal. The document can grant either broad and unlimited powers or limited powers to act in specific circumstances or over specific types of decisions. Typically, a Power of Attorney is effective immediately but is intended to be used only when necessary — at such time when the principal has reached the point where the principal is no longer able to make sound decisions or exercise sound judgment.
A key difference between power of attorney and a conservatorship is that with a power of attorney, the person granting the power does not give up their own ability to manage their own assets to make their own legal and financial decisions; whereas with a conservatorship, the person who has been declared incompetent is no longer able to do any of these things. Under a conservatorship, because the person is declared incompetent, they are no longer able to make their own legal or financial decisions. Any decision that they might try to make on their own would be null and void because once a person is under conservatorship, that person doesn’t have the legal capacity to make those decisions. This may be true currently for Mavis Leno, but she could have put the Power of Attorney in place before she became incompetent from dementia, and any decisions made would be exactly what she wanted to happen.
To read about why a general Power of Attorney is greatly preferred to a guardianship and/or conservatorship, please see my article on this subject, “Why Guardianship Should be a Last Resort.”
Do You Have a Power of Attorney in Place?
If you have not done a Power of Attorney, now is the time to get it done as part of a comprehensive Incapacity Plan which includes our 4 Needs Advance Medical Directive® and Long-term Care Directive®, all done typically as part of a comprehensive Estate Plan which includes an Incapacity Plan and a living trust to avoid after-death probate. This is important to ensure that your wishes are met in the future, should you become incapacitated.
Guardianship and/or Conservatorship Can Be Avoided if You Plan in Advance
It is very important to plan in advance while you are still of sound mind, to ensure that you choose the person(s) you wish to make decisions on your behalf when you can no longer do so yourself, and to save these person(s) the enormous burden and time and expense of going through the publicly embarrassing legal process of guardianship and conservatorship as Jay Leno is doing right now. If you have not done incapacity planning, estate planning, or long-term care planning, please contact us when you’re ready to make an appointment for an initial consultation:
Fairfax Power of Attorney: 703-691-1888
Fredericksburg Power of Attorney: 540-479-1435
Rockville Power of Attorney: 301-519-8041
DC Power of Attorney: 202-587-2797
About Evan H Farr, CELA, CAP
