What is a conservatorship?
A conservatorship is a legal proceeding in which a court may take away a person’s right to manage their own financial or medical decisions, enter into contracts, vote, get married, or make other personal decisions.
These are usually brought when the person who is the subject of the conservatorship (the “proposed conservatee”) has lost the ability to make those kinds of decisions or can no longer protect himself or herself from fraud and undue influence. The proposed conservatee may or may not agree that she needs help. If the proposed conservatee created a comprehensive Estate Plan naming trusted agents to make financial and health care decisions, it’s unlikely that a formal, court supervised conservatorship will be needed.
Who serves as conservator?
Typically, a family member petitions the probate court to be named the conservator. Sometimes, when family members are not close by, don’t want the legal responsibility for reporting to the court every year, or when there is a dispute among family about who should serve, a private professional fiduciary (who is licensed and insured) may be appointed to serve. In some cases, where there is no family, the Public Guardian may serve as conservator.
What authority does a conservator have?
The authority granted by the court is on a case-by-case basis. Although a conservator is granted broad discretion to make personal or financial decisions for the conservatee, the conservator remains accountable to the court and family of the conservatee. The authority granted to a conservator can include some or all of the powers listed below.
Conservator of the Person
A conservator of the person will have the power to make medical decisions for the conservatee, including what kinds of treatment they will receive, what medications they will take and how often they will go see their health care professionals.
A conservator of the person may also have the power to decide where the conservatee will live and who will provide day to day care.
In California, the law states that the conservatee must be allowed to remain in his or her own home for as long as possible, however the conservatee must have enough financial resources to pay for any modifications to the home and for any paid care services required.
Conservator of the Estate
A conservator of the estate will have the power to receive and manage all of the conservatee’s income and finances, and use those funds only for the benefit of the conservatee.
A conservator of the estate will typically also have the power to pay the conservatee’s bills, including negotiating lower payments for debts and entering into contracts on behalf of the conservatee to ensure he or she receives necessary care and services.
A conservator may petition the court for the power to sell the conservetee’s home if he or she is no longer living in it, it is no longer possible for the conservatee to remain at home or the equity is needed to pay for the conservatee’s care. As noted above, because California law protects the right of a conservatee to remain in his or her home this action is taken only as a last resort and requires permission from the court.
A conservator of the estate will also typically have the power to file tax returns on behalf of the conservatee, to bring court actions on behalf of the conservatee or defend court actions brought by others against the conservatee.
Why would a private professional fiduciary be a good choice?
A professional fiduciary is a completely independent person who will look out solely for the interests of the conservatee. He or she also has the necessary experience and training to ensure that the rules governing the management and use of the conservatee’s money are met. This includes a detailed report and accounting that must be filed for review with the Superior Court on a regular basis, and which provides much of the protection for the conservatee’s money. The rules for how this report and account are prepared, filed and set for a hearing are somewhat complex, and are often traps for the unwary or those without experience.
As noted above, they can serve where family members are in conflict about who would be the most appropriate person to manage the finances and medical care of a loved one. Professional fiduciaries are licensed by the State of California and bonded (insured) and must have experience and education that qualifies them to serve. If this seems like a good option we can make suggestions for possible choices for the family to interview.
Why would a family member be a good choice?
A family member, where no one is objecting and everyone in the family agrees, may be a better choice because the conservatee may be more comfortable with having family in charge. Also, a family member may choose not to charge for his or her time, so this might be a less expensive option – particularly when the family member conservator has the ability to work with a knowledgeable attorney and an accountant to prepare the accountings and reports required by the court.
Are there different kinds of conservatorships?
People who have lost the legal capacity to make financial or medical decisions due to injury, illness or mental impairment such as dementia are the subjects of a probate conservatorship. Once a petition has been filed, the Court will appoint an independent attorney for the proposed conservatee and will also send out an independent Court Investigator. The purpose for these appointments is to make absolutely certain that the proposed conservatee has every opportunity to object and to ensure that the conservatorship petition was not filed for an improper purpose.
A limited conservatorship is appropriate for individuals who are developmentally disabled, such as people born with various kinds of mental retardation or other afflictions that limit their ability to develop normally. Not all developmentally disabled people require conservatorship, only those whose disability prevents them from being able to make decisions or resist undue influence need this type of protection. Once these individuals reach age 18 they are legally adults and their parents will need to obtain a limited conservatorship in order to continue to make medical, educational, financial and personal decisions for them.
Many people with developmental disabilities receive services from the Regional Center for their area and the court will require a report from that agency before granting a limited conservatorship. A proposed limited conservatee will also have an independent attorney appointed to meet with and represent him or her and advise the court whether the proposed limited conservatee objects. When Regional Center is involved, Court Investigators are generally not appointed.
The Lanterman Petris Short (LPS) Act was passed to provide a way to ensure that mentally ill patients who need a conservator can have one appointed. The conservatorship is instituted by the patient’s mental health professional care provider. Before an LPS conservatorship can be approved, the patient must be shown to be a danger to himself or to others and be unable or unwilling to conform his behavior or receive treatment.