In California, a conservatorship is established in the Superior Court when a judge appoints someone to look after the personal and/or financial needs of another; generally someone who is no longer able to manage their own affairs.
A conservatorship can be over someone’s physical body to address medical decisions and determination of residence (Person) and/or their finances (Estate). If there is a conservatorship of the Estate, accountings must be filed with the Court (Probate Code section 2620) for approval unless waived (Probate Code section 2628).
General probate conservatorship is generally for the elderly suffering from some sort of cognitive impairment such as dementia or Alzheimer’s disease. In rare cases it may also be granted for an individual who has been exploited or is subject to undue influence by another.
This type of conservatorship may be initiated by any number of people, including a family member, friend, or other person who feels strongly that the impaired person is at risk without the protections of a conservatorship.
Limited conservatorships are for the developmentally disabled and require the involvement of the local Regional Center. They are called Limited because the conservators’ authority is specifically limited (Probate Code section 2351.5)
Lanterman Petris Short (LPS) conservatorships are for the mentally ill who are “gravely disabled” and unable to provide for their own shelter, food and other necessities. This type of conservatorship must be initiated by the County Mental Health Department and is reviewed in Court on an annual basis.
Temporary conservatorships are synonymous with an emergency situation which requires immediate Court involvement and is given a hearing within five business days. Temporary conservatorships generally last 30 days but can be extended by the Court (Probate Code section 2250.2). Temporary conservatorships are generally followed immediately by a general conservatorship hearing (Probate Code section 1826) which, if granted, results in a general conservatorship that can last indefinitely.
Generally, the person conserved (conservatee) is someone suffering from mild to severe cognitive impairment. Someone unable to manage their own affairs such that they require assistance – perhaps they are neglecting their own self-care or forgetting to pay their bills. Other times, the conservatee has been the subject of undue influence at the hands of another which resulted in financial abuse and a conservatorship is established in order to appoint a responsible party (conservator) and protect both the conservatee and their remaining assets. Sometimes both of these scenarios are occurring simultaneously with a proposed conservatee.
For conservatorships of the Person, a physician’s declaration is required stating that the proposed conservatee lacks the capacity to make their own decisions (Probate Code section 2355) in which case the conservator has the exclusive authority to make health care decisions for the conservatee.
No one can “sneak up” on another person and get conservatorship of him or her. A conservatorship proceeding is a serious matter with Constitutional implications. As a result, the proposed conservatee, his/her relatives, and other “interested parties” must receive legal notice of a person’s intent to conserve another. Once a Judge has heard argument from the attorneys (proposed conservatee’s and the person’s requesting the conservatorship) as well as testimony from witnesses, the Judge determines whether or not a conservatorship is necessary. If a conservatorship is granted, the Judge appoints the most appropriate person(s) to serve as the conservator.
Just about anyone can be a conservator. You must be 18 and have no felony convictions. Most times, a conservator is a relative or friend of the conservatee. Other times is can be a financial institution such as a bank or trust company or a professional fiduciary. Unless you are a professional fiduciary, you cannot be the conservator for more than one person (two, if those two are married to each other) at a time.
Indigent conservatee’s are generally supervised by the Public Guardian’s Office. When there is no one willing or able to serve as conservator, the Public Guardian’s Office is named as the conservator. Generally speaking, the Public Guardian is the “conservator of last resort.
Yes, there can be more than one conservator (co-conservators) that must work jointly toward the benefit of the conservatee. There can be co-conservators of the person and estate or there can be one coconservator of the person and another co-conservator of the estate.
Once appointed, the conservator of the person can help the conservatee with making arrangements for housing, doctor and nursing care, and food and clothing. The conservator can consent on the conservatee’s behalf to medical care and treatment.
Once appointed, the conservator of the estate, with court supervision, is required to marshal the conservatee’s assets, pay bills, invest the funds and file periodic accountings for court approval. The conservator of the estate will also arrange for tax returns to be prepared and filed on time, will hire people to care for the conservatee’s assets (such as gardeners for a home, a security service for a house, a property manager for rental property).
Conservatorships last until the conservatee is deceased or the conservatorship is no longer necessary. The conservatorship is reviewed by the Court six months after the conservatorship is established (Probate Code section 1850) and annually thereafter (Probate Code section 1851). The Court monitors the conservatorship both for necessity and compliance. If an involved party feels the conservatorship is no longer necessary, a Petition to Terminate must be filed with the Court (Probate Code section 1860). In that case, the Court will assign a hearing date and an investigation will be completed.
A (proposed) conservatee has a right to object to the conservatorship. They also have the right to independent counsel if desired. The Public Defender is generally appointed on cases where the conservatee’s estate cannot afford an attorney. Otherwise, the Court will appoint an attorney when necessary.
A (proposed) conservatee has the right to:
• Object to the conservatorship
• Attend the hearing (but it is not required and the Court can and will proceed in the individual’s absence)
• Independent counsel
• A jury trial
• If the petition seeks additional authorities due to a diagnosis of dementia, the (proposed) conservatee MUST be represented by independent counsel
Pursuant to Probate Code section 2356.5, the conservator can request and be granted additional authorities directly related to a dementia diagnosis. These powers are the authority to administer medications for dementia and the authority to place the conservatee is a secured-perimeter facility.
A Court Investigator is employed by the Superior Court as an objective party to investigate and monitor all probate and limited conservatorships. A Court Investigator is required to meet with the (proposed) conservatee regularly, speak to all interested parties including physicians, attorneys, banks, social services and law enforcement. They are highly trained and have the right to view all important documents such as health and financial records. Court Investigators gather updates and information with regard to the conservatee and their care and report back to the Court. Court Investigators also address the conservatee’s ability to vote, ability to drive a car and to consent to medical treatment as well as addresses whether there is a continuing need for the conservatorship.
That depends; there is no set fee for a conservatorship other than the Court filing fees which are determined by the State. But generally speaking, conservatorships can be extremely costly. They involve a very thorough and involved Court proceeding that severely restricts one’s liberties and is, therefore, taken very seriously.
Although an attorney is not required to initiate a conservatorship proceeding, because of the intricacies of probate and conservatorship law, most people find the assistance of an attorney not only helpful but necessary. Additionally, volatile dynamics and complicated cases require many hours of work by different professionals and those fees add up.