CONSERVATORSHIPS IN CALIFORNIA

Through a conservatorship, an individual, who is unable to properly manage his or her own affairs (such as an elderly or disabled adult) relinquishes either voluntarily or involuntarily that ability to another person who is called a conservator (usually an adult child or a spouse). The conservator acts like an adult guardian of the individual (the “conservatee”) for either financial transactions or personal needs or both.

A conservatorship is established after a judge determines that the proposed “conservatee” can no longer oversee his or her finances or is unable to take care of themself. The judge will then appoint a conservator to handle the conservatee’s needs.  There are two types of conservatorships: 1) Conservatorship of the person; and 2) Conservatorship of the estate.

A conservator of the person arranges for the conservatee’s care and protection, decides where the conservatee will live and makes decisions regarding the conservatee’s health care, food, clothing, housekeeping, transportation and recreation. A conservator of the estate is in charge of handling the conservatee’s finances. The conservator of the estate takes an inventory of all of the conservatee’s assets, ensures that the conservatee’s bills are paid, taxes are filed and paid, prepares a plan to make certain the conservatee’s financial needs are met, invests assets, and maintains financial records. It is permissible and often common for the conservator of the estate to be the same individual or organization as the conservator of the person.

Conservatorships can be limited or permanent. A temporary conservatorship may be appropriate for a limited period of time, usually 30-90 days, to handle a temporary or emergency situation. As an example, a person may develop a mental or physical condition which renders the proposed conservatee unable to take care of arrangements for caregivers, in home health care, or movement to a care facility. If the conservatee recovers sufficiently, the temporary conservatorship can be terminated or on the other hand, a permanent conservator may have to be appointed.

Conservatee’s Rights

It is a common misconception that the conservatee loses all rights upon the court appointing a conservatorship over a conservatee.  The conservatee actually retains the following rights:

• To make or change their will or estate plan (unless the judge grants this right to a conservator)
• Be represented by a lawyer
• Receive notice of all hearings related to the conservatorship and attend such hearings
• Get married
• Receive mail
• Control their own spending money (if the judge allows for an allowance)
• To ask the judge to change conservators
• To ask the judge to end the conservatorship
• Vote (unless the judge determines they are unable to do so)
• Make their own health-care decisions (unless the judge determines they are not able to do so)

Establishing a Conservatorship

The first step in establishing a conservatorship involves filing a Petition for Conservatorship. A Petition for Conservatorship can be filed by a friend or relative, professional conservator, nonprofit agency, or public official. The proposed Conservator must be bondable, meaning that this person or organization should be trustworthy such that a surety company is willing to vouch for their behavior, conduct and ability. Throughout the entire process of conservatorship, conservators need to have an attorney represent them.

California Probate Code Section 1801 (a) stipulates that for a conservatorship of the person, it must be demonstrated that the individual who would be the conservatee is no longer able to care for themselves, specifically concerning decision making that involves food, clothing, residence, and maintaining their own physical and mental health.

California Probate Code Section 1801 (b) declares that for a conservatorship of the estate, it must be demonstrated that the proposed conservatee is no longer able to oversee their finances and is at risk of falling prey to those willing to defraud or otherwise negatively influence them.

The person or entity filing the petition for conservatorship must also state alternative methods for achieving the equivalent of a conservatorship and why these other methods do not measure up or are otherwise unsuitable for the conservatee.  Alternate remedies include assistance accepted voluntarily by the individual, limited, special, or general powers of attorney, creation of a trust, or drawing up of an advance health care directive.

Once the petition is filed, the court will appoint an investigator to interview the proposed conservatee and report the investigator’s findings back to the court.  The court will then set a hearing on the petition during which the judge will determine whether or not to grant the petition for conservatorship and if a conservatorship is warranted, what powers to grant the conservator.

A conservator of the estate must file an Inventory and Appraisal of the conservatee’s assets within 90 days of becoming the conservator and an annual accounting one year after becoming conservator, then every two years thereafter.

Termination of Conservatorships

A conservatorship terminates on the death of the conservatee, when  judge terminates it because it is no longer needed, or if a judge appoints a different conservator. If the conservatorship is being terminated because of a death, the conservator will pay any expenses of the conservatee’s last illness and is responsible for the preservation of the conservatee’s estate until it is delivered to the personal representative of the estate.

Disadvantages of a Conservatorship

Conservatorship proceedings are often criticized for being costly, time-consuming and inflexible. The costs associated with a conservatorship include filing fees, court investigator costs, premiums for the conservator’s surety bond, compensation for the conservator and attorney’s fees. California law requires court approval before a conservator takes certain actions, such as selling real property or some financial assets.

Conservatorships are public proceedings, therefore the conservatee’s assets, income and expenses are public record.  The conservatee’s personal information, detailing why the conservatorship is warranted, including the conservatee’s medical information supporting the need for the conservatorship, is listed on a form entitled “Confidential Supplementary Information” and is not part of the file available for public viewing.

Avoiding Conservatorship

The need for a conservatorship can be avoided with advanced planning. If your estate planning documents are in order, your documents will provide a thorough and effective plan for incapacity. A comprehensive estate plan generally consists of more than just a trust and/or a will; you should also have a General Durable Financial Power of Attorney and an Advance Health Care Directive.  These two documents provide a plan for incapacity and are discussed below.

General Durable and Springing Financial Powers of Attorney

Every individual should  have a financial power of attorney which is durable, meaning it is still valid even if you subsequently lose capacity or a general springing power of attorney that become effective only upon a debilitating disability. The power of attorney will authorize the agent named in the document to manage your financial affairs, sign your tax return, negotiate with insurance companies and financial institutions on your behalf, and make other important financial decisions on your behalf.

Advance Health Care Directive

This document allows you to appoint an agent or agents who will make medical decisions on your behalf if you cannot do so, effectively eliminating the need for a conservatorship of the person. This document will also allow you to specify in advance your preferences regarding medical treatment. For example, you could specify that your primary care physician is to be consulted regarding your treatment, or you could specify that you do not want to be kept permanently dependent on life support if you are in a persistent vegetative state. These are important life issues that should be addressed well before an event occurs that could leave your family, friends and clergy without any direction as to how you want them to deal with any major medical issue you may face.