805.934.4600
This article is the third 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 third article will focus primarily on educating the reader on the role of the conservator and the duties associated with such a role.
When the court appoints a person as a conservator, they become responsible to the court and assume certain duties and obligations. All of their actions as conservator are subject to review by the court. Thus, it is important that a person appointed conservator consult with their attorney to determine if a proposed action lies within the scope of their duties. However, it is important that conservatees and their family members also familiarize themselves with the duties associated with the conservator’s role to detect if the conservator is engaging in acts not expressly within the authorization granted by the court or if the conservator is failing to perform their duties.
As discussed in the first installment of the series, a conservator is a person appointed by a court to make decisions on behalf of a mentally or physically disabled adult and incapable of caring fully for themselves or their finances. Before appointing a conservator, a court will determine the extent to which the conservatee requires assistance, and the conservator will have specific duties under the law and will be granted the necessary authority to complete the conservatorship’s tasks. Thus, the conservator’s duties will depend on the type of conservatorship that the court appoints.
Duties of A Conservator of the Estate
A person is appointed as conservator of another’s estate when the individual requiring assistance cannot manage their own financial resources and resist fraud or undue influence. These conservators are primarily responsible for conserving, managing, and using the conservatee’s property for the conservatee. The conservator of the estate is charged with taking care of several financial tasks and will have the power to access the conservatee’s accounts and make investment and other decisions regarding their funds. However, the conservator will have to ask the court for permission to engage in significant transactions, such as buying or selling real property or borrowing money. The court will also review the conservator’s activities when they file reports and appear for routine proceedings. A person appointed as conservator of another’s estate has the duties to:
- Manage the conservatee’s finances;
- Locate and take control of all assets of the conservatee;
- Collect the conservatee’s income;
- Make a budget to show what the conservatee can afford;
- Pay the conservatee’s bills;
- Responsibly invest the conservatee’s money; and
- Protect the conservatee’s assets.
Duties of A Conservator of the Person
A person is appointed as conservator of the person when the individual requiring assistance cannot manage their own personal affairs. These conservators are primarily responsible for managing the personal care of the person who cannot provide properly for their personal needs, physical health, or medical care. A person appointed as conservator of the person is tasked with making arrangements for the conservatee’s:
- Meals;
- Health Care;
- Clothing;
- Personal Care;
- Housekeeping;
- Transportation;
- Shelter;
- Recreation; and
- Well-being.
As of the time of this article, current law states, “if the conservatee has been adjudicated to lack the capacity to make health care decisions, the conservator has the exclusive authority to make health care decisions for the conservatee that the conservator in good faith based on medical advice determines to be necessary.” The conservator must make health care decisions for the conservatee per the conservatee’s “individual health care instructions and other wishes to the extent known to the conservator.”
Additionally, the conservator decides where the conservatee lives. In determining where a conservatee will live, the conservator must prepare a written determination regarding the appropriate level of care for the conservatee and make sure that the living arrangement is the “least restrictive” setting necessary to meet the conservatee’s needs. The law presumes that the conservatee’s personal residence (the conservatee’s residence at the time that the petition for appointment of a conservatorship was filed) is the conservatee’s least restrictive appropriate residence. However, there are certain procedures available to a conservator under this type of conservatorship if he or she determines it is in the conservatee’s best interest to live somewhere besides their personal residence.
The conservator of the person can make other choices on behalf of the conservatee to fulfill their duties. Though as discussed in previous articles, it possible for a person to be appointed both conservator of the person, and of the estate, in general, most major changes and decisions will have to be presented to the court for approval.
Rights Retained by Conservatee
A conservator who has control over choices related to another person’s well-being, finances, or both, bears significant responsibility, but a conservatee does not necessarily lose the right to take part in important decisions affecting their life or property. As a conservatee, a person has all basic human rights, the right to be treated with understanding and respect, and the right to have their wishes considered. Generally, a conservatee also retains the following rights:
- Request a change of conservator from a judge;
- Request the end of the conservatorship;
- Directly receive a salary or allowance;
- Alter his or her will;
- Receive personal mail;
- Retain his or her own lawyer; and
- Get married, vote, control personal spending and/or have visits from friends and family – as long as a judge has not specifically barred any of these activities (which can occur if such activities are risky and/or generally not perceived to be in the best interest of the conservatee/public for whatever reason).
When a conservatee resides in an assisted care and living facility, they will also have the rights specifically outlined in California’s Patient’s Bill of Rights. If your loved one is a conservatee in California, understanding their rights can be important to ensuring that his California conservatorship is offering the appropriate protections.
For more information regarding your duties as conservator, rights as a conservatee, or other matters associated with elder and dependent adults, estate planning, power of attorney documents, and Probate Court, please call us at (805) 934-4600 to schedule an appointment.