Conservatorship

Conservatorship

What is a conservatorship?

A conservatorship is a legal proceeding where the court appoints a person (a conservator) to manage the financial and personal affairs of an incapacitated person (conservatee) who can no longer handle their own financial and personal affairs. A person can also be appointed to care for an incapacitated person’s estate.

A conservatorship provides better protection for an incapacitated person because the court supervises the conservatorship.

Conservator

A person or organization appointed by the court to ensure the conservatee’s personal care, to manage the conservatee’s assets, or both. There can be multiple conservators who would be labeled co-conservators.

Conservators must always discuss any plans to be made with other conservators (if any) and with the conservatee. When there are multiple conservators, all conservators must agree on choices made. If a disagreement results in the conservatee being harmed, a judge may replace one or all conservators.

Conservatee

A person whom a judge has declared to be unable to care for themselves or manage their financial affairs independently.

Conservator of the Estate

Conservators of the estate do the following:

  1. locates and takes control of the conservatee’s assets;
  2. protects and manages the conservatee’s income, finances, and property;
  3. makes a budget for the conservatee;
  4. pays the conservatee’s bills and taxes on time;
  5. invests the conservatee’s money; and
  6. accounts to the court and the conservatee about your management of the conservatee’s assets.  (Cal. Prob. Code Section 2400 et seq.)

Conservator of the Person

Conservators of the person help ensure that the conservatee’s daily needs are taken care of. This means that the conservator:

  1. arranges for the conservatee’s care;
  2. decides what the living situation will be for the conservatee; and
  3. oversees the conservatee’s: health care, food, clothes, personal care, housekeeping, transportation, recreation, and protection.   (Cal. Prob. Code Section 2350 et seq.)

 

Types of Conservatorships

Probate Conservatorships

These conservatorships are the most common and are based on laws found in the California Probate Code.

  • General Conservatorships involve a conservator being appointed for adults who cannot take care of themselves or their finances. Typically, these adults are older people with limitations caused by aging, such as dementia.
  • Limited Conservatorships involve a conservator being given certain rights to care for an adult who has a developmental disability and can’t fully care for themselves or their property. Conservators under this type of conservatorship have limited powers so that the disabled person may live as independently as possible. Sample developmental disabilities include epilepsy, mental retardation, and cerebral palsy. (Cal. Prob. Code Section 1420.)
  • Temporary Conservatorships involves temporary care, protection, and support until a permanent conservatorship can be established. This is typically necessary when people are filing for a General or Limited conservatorship.

Lanterman-Petris-Short (LPS) Conservatorships

This type of conservatorship is for a person who is gravely disabled due to a mental disorder, who may be a danger to themselves and others, and requires hospitalization. This conservatorship allows for the conservator to consent to medical treatment that will eliminate or reduce the grave disability.

Advantages of a Conservatorship

One of the main advantages of a court-appointed conservatorship is the high degree of protection afforded to the conservatee. The court supervises the conservator’s actions throughout the conservatorship to ensure they are acting in the best interests of the conservatee and not breaching their duties as conservator.

Another advantage to a conservatorship proceeding is that an incapacitated individual who is reluctant to accept help will be better assisted.

Disadvantages of a Conservatorship

One of the disadvantages to a conservatorship proceeding is the loss of incapacitated person’s ability to make their own decisions and a loss of their privacy. Although conservatee’s retain certain rights throughout the conservatorship, decisions regarding their care are made by the conservator.

Another disadvantage is the expense of a conservatorship. Costs can be substantial with court filing fees, investigator fees, conservator fees, and paying for attorneys should a conservator want to hire one.

Alternatives to a Conservatorship

A conservatorship is not the last resort for an incapacitated person. Less restrictive alternatives include advance healthcare directives, revocable living trusts, or durable powers of attorney for healthcare or finances. These alternatives are not subject to court supervision.

What You Need to Know About Becoming a Conservator

Are you concerned that your spouse, parent, sibling, relative, or friend has become incapable of taking care of themselves, their affairs, or their finances? Have they been in an accident, are older, have an illness, or suffer from dementia or Alzheimer’s? Do you want to become their conservator and watch over them and make the decisions that they can’t? If so, the lawyers at M.S. Domingo Law Group, P.C. are here to help you on your journey to become a conservator. We will provide you with a roadmap on what steps to take and what forms you’ll need to fill out.

There are a variety of conservatorships as we list on our website, but this guide will focus on becoming a conservator in a General Conservatorship, as that is the most common type of conservatorship.

Documents to Prepare

The following list includes documents that may be filed during your conservatorship:

  1. Notice of Conservatee’s Rights (GC-341)
  2. Attachment to Notice of Conservatee’s Rights (GC-341(MA))
  3. Determination of Conservatee’s Appropriate Level of Care (GC-355)
  4. Notice of Filing Inventory and Appraisal and How to Object to the Inventory of the Appraised Value of Property (GC-042)
  5. Attachment to Notice of Filing of Inventory and Appraisal and How to Object to the Inventory or Appraised Value of Property (GC-042(MA))
  6. Objections to Inventory and Appraisal of Conservator or Guardian (GC-045)
  7. Petition to Fix Residence Outside the State of California (GC-085) (if applicable to your case)
  8. Petition for Exclusive Authority to Give Consent for Medical Treatment (GC-380)
  9. Inventory and Appraisal (GC-040)
  10. Inventory and Appraisal Attachment (GC-041)
  11. Summary of Account-Standard and Simplified Accounts (GC-400(SUM)/GC-405(SUM))
  12. Pre-Move Notice of Proposed change of Personal Residence of Conservatee or Ward (GC-079) (if applicable to your case)
  13. Attachment to Pre-Move Notice of Proposed change of Personal Residence of Conservatee or Ward (GC-079(MA)) (if applicable to your case)
  14. Post-Move Notice of change of Residence of Conservatee or Ward (GC-080) (if applicable to your case)
  15. Attachment to Post-Move Notice of Change of residence of Conservatee or Ward (GC-080(MA)) (if applicable to your case)
  16. Notice of the Conservatee’s Death (GC-399) (if applicable)
  17. Petition for Final Discharge and Order (GC-395)

Filling out the forms

Take your time in gathering the correct information you will need to complete the forms. You don’t want to have to resubmit any of these forms. You will need to gather the following information about the proposed conservatee: their full name, address, birth date, doctor’s name, address, and phone number.

For a conservatorship of the person, include information about the proposed conservatee’s physical and mental health, and their ability to provide for their food, clothing, and shelter. You will need to provide specific facts and state your belief showing that a conservatorship is needed.

For a conservatorship of the estate, explain why the proposed conservatee can’t manage their finances or is easily influenced. Examples of past events or witnesses who have seen the proposed conservatee struggle with their finances are very beneficial. You will need to put as much as detail as possible when listing the proposed conservatee’s assets and the value of their assets. This will be necessary for the court to determine if a bond is required, which is similar to an insurance policy to protect the proposed conservatee.

Ready to File

Once the forms are completed, make two copies of each form and place the forms with the signed original form on top and the two copies underneath. Visit your local court and file the forms at the clerk’s office. You will be required to pay the filing fee. The clerk will stamp your original forms and both copies. The stamp on the Notice of Hearing form (GC-020) will state your hearing date and time.

Serving the forms

You are required by law to ensure that certain people get a copy of the Petition for Appointment of Probate Conservator and other filed documents. This is called giving or serving notice. The people who require notice include parents, grandparents, siblings, children, grandchildren, and spouses. They must know that someone is petitioning for conservatorship of the proposed conservatee. Serving notice is done by someone 18 years or older, not you, giving copies personally or mailing a copy of the Notice of Hearing (GC-020) and a copy of the Petition for Appointment of Probate Conservator (GC-310), to these certain people at least 15 days before the hearing.

If you give notice by mail, the person who serves the forms must fill out the second page of Notice of Hearing (GC-020) and return it to you. This is called a Proof of Service, which you will need to make copies of and file with the court along with your other documents.

You are also required by law to give personal notice to the proposed conservatee. This means that someone over the age of 18, not you, must personally give a copy of the Citation for Conservatorship (GC-310), a copy of the Notice of Hearing (GC-020), and a copy of the Petition for Appointment of Probate Conservator (GC-310) to the proposed conservatee.

Next Steps

Check your local court rules or call your local court to see if there is anything you need to do prior to your hearing date.

Onto the Hearing

Your next step will be to attend the conservatorship hearing. The date and time of the hearing is listed on the Notice of Hearing (GC-020) form. Bring the Letters of Conservatorship (GC-350). At the hearing, answer any questions asked of you. If the judge approves the conservatorship, you will get a signed Order which you can then file with the clerk’s office. Submit any other paperwork required at your court, which will include the Duties of Conservator (GC-348) form. Then, the clerk will give you a filed copy of your Letters of Conservatorship.

If you need help or have any questions about how to get a conservatorship started, give us a call.

See our What You Need to Know About Being a Conservator Guide on steps to take after you’ve been appointed as conservator.

What You Need to Know About Being a Conservator

Your Petition for Appointment of Probate Conservator has been granted and you now have your Order Appointing Probate Conservatorship and your Letters of Conservatorship from the court. Congratulations! But what do you do now? Don’t worry, the lawyers at M.S. Domingo Law Group, P.C. are here to help you navigate the tricky road of Conservatorships. We will provide you with a roadmap on what steps you need to take next and what forms you’ll need to fill out.

If you haven’t already done so, be sure to complete the required Conservatorship Class through the court.

This guide will focus on General Conservatorships, as those are the most common type of conservatorships.

Before the Conservatorship is Effective

After the court files the Order appointing you as conservator, but before you take any actions as conservator, California Probate Code Section 2300 requires you to:

  • After the court files the Order appointing you as conservator, but before you take any actions as conservator, California Probate Code Section 2300 requires you to:
  • Take an oath that you’ll complete your responsibilities as conservator; and
  • Sign the Duties of Conservator and Acknowledgement of Receipt of Handbook for Conservators (form GC-348). (Handbook for Conservators is one of the helpful materials provided by the court to aid new conservators in their journey)

These steps apply to both conservators of the person and of the estate. Acquiring a surety bond is a step typically reserved for conservators of the estate unless a judge hasn’t required this. This bond ensures the protection of a conservatee’s estate and ensures that a conservator will fulfill their obligations.

Letters of Conservatorship

Once appointed as conservator, you’ll get your Letters of Conservatorship from the court, which show your appointment and authority as conservator. The original Letters is kept with the court. Certified copies may be requested by various people and organizations during the conservatorship. Such copies must be certified within the last 60 days.

Conservator of the Estate

Locating the Conservatee’s Assets

Conservators should search the conservatee’s house, safety deposit box, and mail for any assets. Conservators will need to find assets and property the conservatee owns, and the income the conservatee receives or is entitled to, search for the sources of income, and take steps to mitigate any loss or damage.

Income may include retirement accounts, wages, government benefits, and rental income. Assets can include financial accounts, cash, personal property like jewelry, or stocks and bonds.

When conservators locate the conservatee’s assets and learn of any financial connections the conservatee has, conservators must notify these people about their appointment as conservator.

Conservators must record a copy of their Letters of Conservatorship with the county recorder in each county where the conservatee owns real property. This must be done as soon as they can after the Letters are issued but no later than 90 days after the conservator is appointed. (Cal. Prob. Code Section 2313)

Protecting and Managing the Conservatee’s Assets

Conservators must keep their money separate from the conservatee’s assets. Any stocks, bonds, securities, and accounts with banks, that are part of the conservatee’s estate must show that title to these assets belongs with the conservatorship estate. Cars or other vehicles should have ownership transferred to Conservatorship of (insert name of conservatee), (insert name of conservator(s)), Conservator of the Estate. Prior to conservators reimbursing themselves for any services made as conservator, or borrowing money from the conservatee’s estate, conservators must get court approval. (Cal. Prob. Code Section 2450 et seq.)

Opening a Bank Account

Conservators of an estate must open an estate checking account at a local bank and transfer the conservatee’s assets into this account. This account should be set up as Conservatorship of (insert name of conservatee), (insert name of conservator(s)), Conservators of the Estate. If possible, it should be an interest-bearing account. The bank conservators choose will require the certified copy of the Letters. If conservators find other bank accounts in the conservatee’s name, ask the bank for the current balance, and change the name of the account to Conservatorship of (insert name of conservatee), (insert name of conservator(s)), Conservators of the Estate. (Cal. Prob. Code Section 2453)

The Importance of a Budget

Making a budget and sticking to it will be vital to ensure the estate has enough funds to provide for the conservatee and to pay the conservatee’s bills and expenses on time. (Cal. Prob. Code Section 2430 et seq.)

Making Investments

Conservators may make investments without court approval if the investments will meet the conservatee’s needs, but conservators can’t make risky investments. (Cal. Prob. Code Section 2570 et seq.)

Preparing an Inventory and Appraisal

Conservators will need to prepare an Inventory and Appraisal listing the real and personal property of the conservatee’s estate and the value of those assets as of the date they were appointed as conservator. The noncash property of the estate will be valued by the assigned Probate Referee. Conservators can object to the probate referee’s appraisal by filing Objections to Inventory and Appraisal of Conservator or Guardian (GC-045). Conservators must appraise the value of the cash and cash-equivalent items of property.

The appropriate forms for this Inventory and Appraisal are called the Inventory and Appraisal form (GC-040) and Inventory and Appraisal Attachment (GC-041) which must be signed by the conservator and the probate referee and filed with the court within 90 days after being appointed as conservator. Copies must be mailed to the conservatee, their attorney, and their family. Conservators must also include notice of how to file an objection to the Inventory and Appraisal by including the Notice of Filing Inventory and Appraisal and How to Object to the Inventory of the Appraised Value of Property (GC-042) and Attachment to Notice of Filing of Inventory and Appraisal and How to Object to the Inventory or Appraised Value of Property (GC-042(MA)). (Cal. Prob. Code Section 2610 et seq.)

Preparing an Accounting

Conservators must provide an accounting to the court and the conservatee about their management of the conservatee’s assets. Conservators should maintain an itemized list of each financial transaction affecting the estate, including all receipts of income, changes in assets or property held in the estate, and expenditures. Each income entry should include the date of the transaction, the source of income, the time period covered by the payment, the amount, and the purpose of the payment if not obvious. Each expense entry should include the date of the payment, the name of the payee, the purposes of the payment, the amount, and the time period covered by the payment. This accounting must first be filed with the court 1 year after your appointment and then at least every 2 years after that. The type of form used depends on the size, complexity, and type of assets in the conservatorship estate. Conservators can use Summary of Account-Standard and Simplified Accounts (GC-400(SUM)/GC-405(SUM)) for a standard accounting. Along with the accounting, conservators must file a Report showing the current circumstances of the conservatee and their estate, and file a Petition requesting the court review and approve the accounting. These accountings are required for you to continue as conservator. (Cal. Prob. Code Section 2620 et seq.)

Dealing with Taxes

An estate is a separate taxpayer for federal and state income tax purposes. Conservators must file income tax returns on behalf of the conservatee.

Conservator of the Person

Once appointed, the Notice of Conservatee’s Rights (GC-341) and the Attachment to Notice of Conservatee’s Rights (GC-341(MA)) must be completed and served along with the Order of Conservatorship to the conservatee, their attorney, and anyone listed on the Petition for Appointment as Conservator within 30 days of appointment.

This Notice states the personal rights of conservatees, including: the right to question your choices, receive visitors and phone calls, or ask the court to review your management.

Overseeing the Conservatee’s Needs and Care

Conservators must evaluate the conservatee’s needs, including their emotional, physical, mental, and financial needs. This assessment includes seeing what financial resources are available to take adequate care of the conservatee and ensure that conservators stick to a certain budget.

Conservators must complete what is called a Determination, which is an evaluation of the level of care the conservatee needs. This evaluation compares the level of care that existed prior to you becoming a conservator and the level of care needed to keep the conservatee in their personal residence or another location after you become conservator. Conservators must file the Determination of Conservatee’s Appropriate Level of Care (GC-355) with the court within 60 days of your appointment.

Overseeing the Conservatee’s Living Situation

California law explains that a conservatee must reside in the least-restrictive appropriate place, which is presumed to be the conservatee’s personal residence. However, in general conservatorships, the court grants conservators the authority to place conservatees in a different location, even a facility, as needed. Conservators must ensure that the new location is safe and will meet the conservatee’s best interests, and this change in residence must be agreed upon by the conservator(s) and the conservatee.

Change residences within California

If conservators wish to move the conservatee to another residence in California, you don’t need court approval.

Conservators must mail a notice of their intent to change the conservatee’s residence to everyone entitled to notice, 15 days before the date of the move and then file proof that notice was mailed. This form is called Pre-Move Notice of Proposed Change of Personal Residence of Conservatee or Ward (GC-079) and Attachment to Pre-Move Notice of Proposed change of Personal Residence of Conservatee or Ward (GC-079(MA)).

Additionally, conservators must file a Post-Move Notice of Change of Residence of Conservatee or Ward (GC-080) and the Attachment to Post-Move Notice of Change of residence of Conservatee or Ward (GC-080(MA)) to describe any change of the conservatee’s residence within 30 days of the move. Within the 30 days, copies of the notice must be mailed to whomever received copies of the Petition for Appointment as Conservator.

Change residences outside of California

If conservators wish to move the conservatee out of state, they must get court approval by filing a Petition to Fix Residence Outside the State of California (GC-085). Notice must be given for this Petition to everyone who received notice of the Petition for the Appointment as Conservator.

Change residence to a care facility

Similar to the requirements for a change of the conservatee’s residence, notice must be provided. Pre-Move notice must be provided if changing from the conservatee’s residence to a care facility for the first time, and Post-Move notice must be given if changing from one care facility to another. Conservators must ensure that the chosen facility is the least restrictive placement.

Caring for the Conservatee’s Grooming, Eating, Cleaning, Meals, Clothes, Hobbies, and Protection

Conservators should think of the best way for conservatees to clean themselves, ensure that the conservatee is eating well, that the conservatee has enough well-fitted clothes and can dress themselves or has help to do so, is given reminders, if needed, about cleaning themselves or their residence, is able to continue doing any hobbies they have or visiting friends and family, and is able to travel around easily, whether by a service or with you the conservator.

Conservators must also provide for the conservatee’s protection, which includes keeping them away from harm and ensuring they are not harming themself or getting harmed by another person.

Overseeing the Conservatee’s Health

With general conservatorships, conservators and conservatees share the right make decisions about the conservatee’s medical needs. Unless the court has granted a conservator exclusive authority regarding medical decisions, a conservator may not consent or refuse a medical treatment if the conservatee disagrees with the conservator. Exclusive authority is granted to a conservator when the court determines that conservatee has lost the capacity to make sound medical decisions. Conservators can request for exclusive authority in their initial petition for conservatorship or during the conservatorship by signing and filing the Petition for Exclusive Authority to Give Consent for Medical Treatment (GC-380).

Conservators should also obtain the appropriate health insurance if the conservatee does not have any or their current insurance is not adequate. Additionally, conservators should make regular appointments for dental, eye, and hearing care.

End of the Conservatorship

A conservatorship may end for various reasons including:

  • the death of the conservatee,
  • a judge ends the conservatorship because a conservatee has regained their abilities to handle their own affairs,
  • a conservator asks the court if they can resign as conservator (and the court accepts),
  • a judge appoints another person to be conservator instead of the current conservator, or
  • when the estate runs out of assets.

In any event, a conservator will be required to finalize their obligations before being released from their role as conservator. (Cal. Prob. Code Section 1860 et seq., 2650 et seq., 2660 et seq.)

If the conservatee pass away, the conservator will need to sign and file a form called Notice of the Conservatee’s Death (GC-399) and mail copies to anyone who has requested to be notified.

As conservator of the estate, conservators must pay for court required investigations, make accountings, acquire court approval for the final accounting, and deliver the estate’s assets and get a receipt, which conservators will then file with the court.

Once conservators have completed their final duties and received court approval, they will fill out and file a Petition for Final Discharge and Order (GC-395). Once that form is filed with the court, and a copy is provided to the surety of the bond, conservators will be discharged as conservator.