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This article is the first in a series of articles designed to educate and inform the reader on the general concepts of conservatorships, when they may be necessary, and the considerations made by the court in establishing them. This first article will focus primarily on informing on conservatorships, the role of the conservator, and persons who may be conservatees. Our second topic for discussion is the different types of conservatorships in California and the persons they would be suitable for.
What is a conservatorship?
A conservatorship is a court-ordered authority to assume responsibility for an incapable or incapacitated person. A conservatorship is necessary for those individuals who have neither a power of attorney nor healthcare directive and have lost the ability to make informed decisions or care for themselves. A conservatorship may also be necessary for other reasons, such as an invalid or fraudulent power of attorney document.
Generally, a conservator either looks after a person’s care or handles the conservatee’s financial matters. Establishing a conservatorship involves a legal process that includes filing a petition and informing the court why the proposed conservatee can no longer care for their personal or financial needs. Before a hearing on a petition for conservatorship, the court will arrange to evaluate the person who might need assistance and background checks for potential appointees. A court proceeding usually follows where petitioners or their legal counsel presents evidence, and testimony from interested parties is heard before a judge grants or denies the petition.
Courts usually require that the person appointed as conservator get a lawyer to represent them and a bond to protect assets from mismanagement. The conservator is often compensated for their services and must account for expenses made on behalf of the conservatee.
Types of Conservators
A conservator is an individual or organization chosen to protect and manage the personal care or finances—or both—of a person who a judge or a jury has found to be unable to manage his or her affairs. That person is called the conservatee. A conservator might be the conservatee’s spouse, domestic partner, child, parent, sibling, other relative, or friend. If no suitable relative or friend is willing or able to serve, the conservator might be a professional fiduciary or a county agency called a public conservator.
A conservator is appointed by a court to care for an adult who is mentally or physically disabled and incapable of caring fully for themselves or their finances. Conservators owe a fiduciary duty to their conservatees, and the exact limits of their powers are defined by the terms of the conservatorship as ordered by the court. In general, conservators act in the conservatee’s interest to manage either financial or healthcare decisions or both. However, they may also be limited to a more specific or short-term role.
Types of Conservatees
Just as there are many kinds of conservators, there are different kinds of conservatees. Some conservatees are elderly, and some are younger people with temporary or permanent mental or physical disabilities. Some conservatees can no longer shop for food or cook and need medical care or help to get around. Other conservatees give away large sums of money to others or cannot remember to pay their bills and track their money. In these instances, a conservatee may need help managing their investments.
Types of Conservatorships
There are several types of conservatorships. For each type, the court may appoint a conservator of the person, a conservator of the estate, or both. A conservatorship may be based on laws found in the California Probate Code or based on the Lanterman-Petris-Short Act. Conservatorships may also be general, limited, or temporary, depending on the needs and capacity of the conservatee, as will be discussed in the next article.
For more information regarding matters associated with elder and dependent adults, estate planning, power of attorney documents, and Probate Court please visit us at www.KirkSimas.com, or call us at (805) 934-4600 to schedule an appointment.