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.
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.
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:
- locates and takes control of the conservatee’s assets;
- protects and manages the conservatee’s income, finances, and property;
- makes a budget for the conservatee;
- pays the conservatee’s bills and taxes on time;
- invests the conservatee’s money; and
- 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:
- arranges for the conservatee’s care;
- decides what the living situation will be for the conservatee; and
- 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
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.
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.
Who Can Be a Conservator?
People who are qualified to be appointed as a conservator include: a spouse, an adult child, a parent, a sibling, a person the law approves, or a public guardian.
Completing the Necessary Forms
There are multiple forms a potential conservator will need to fill out, including: Petition for Appointment of Probate Conservator, Notice of Hearing, Confidential Supplemental Information, Citation for Conservatorship, Duties of Conservator, Confidential Conservator Screening, Order Appointing Conservator, and Letters of Conservatorship. Some courts require more forms to be filled out. Potential conservators should take their time in gathering the correct information needed to complete these forms.
Ready to File
Once the forms are completed, they are ready to be filed. The court will stamp the Notice of Hearing form, which will state the date and time of the conservatorship appointment hearing.
Serving the forms
Once the hearing date and time have been acquired, potential conservators must “give notice” that they are petitioning to be appointed as conservator of another person (the proposed conservatee) to certain people. It is important to strictly follow the rules for providing notice.
Potential conservators should check their local court rules or call their local court to see if there is anything else that needs to be done prior to the hearing date.
Onto the Hearing
The next step will be to attend the conservatorship hearing. At the hearing, potential conservators should answer any questions asked. If the judge approves the conservatorship, the judge will sign an Order which can then be filed with the court, along with any other required paperwork. Then, the court will give the conservator a copy of the Letters of Conservatorship, which gives them the authority to act as a conservator.
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.
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 the conservator, but before any actions as conservator are taken, conservators must:
- Get a bond if required, take an oath that they will complete their responsibilities as conservator; and sign a form acknowledging their duties as conservator and that they received the court provided Handbook for Conservators.
Letters of Conservatorship
Once appointed, conservators will get their Letters of Conservatorship from the court, which shows their appointment and authority as conservator.
Conservator of the Estate
Locating the Conservatee’s Assets
Conservators will need to find assets and property the conservatee owns, and take steps to mitigate any loss or damage to the conservatee’s assets.
Protecting and Managing the Conservatee’s Assets
Conservators must keep their money separate from the conservatee’s assets, show that title of all the conservatee’s financial assets and personal property belongs with the conservatorship estate, and get court approval prior to reimbursing themselves for any services made as conservator or borrowing money from the conservatee’s estate.
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.
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.
Conservators may make investments without court approval if the investments will meet the conservatee’s needs, but conservators can’t make risky investments.
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.
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. Along with the accounting, conservators must file a report showing the current situation of the conservatee and their estate and request the court review and approve the accounting.
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
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.
Overseeing the Conservatee’s Living Situation
A conservatee must reside in the least-restrictive appropriate place, which is presumed to be the conservatee’s personal residence. However, in general conservatorships, conservators are granted the authority to place conservatees in a different location, as needed.
Change residences within California
Conservators don’t need court approval to move the conservatee to another residence in California. Before the move, conservators must mail a notice of their intention to change the conservatee’s residence to everyone entitled to notice. After the move, conservators must file a form with the court describing any change of the conservatee’s residence.
Change residences outside of California
Court approval and notice to everyone entitled to notice is required if conservators wish to move the conservatee out of state.
Change residence to a care facility
Conservators must provide notice before moving a conservatee from their residence to a care facility and provide notice after moving the conservatee from one care facility to another.
Caring for the Conservatee’s Grooming, Eating, Cleaning, Meals, Clothes, Hobbies, and Protection
Conservators should ensure the conservatee can clean themselves with or without help, that the conservatee is eating well, that the conservatee can dress themselves or has help to do so, is given reminders, if needed, about cleaning their residence, is able to continue doing any hobbies they have or visiting friends and family, and is kept away from harm.
Overseeing the Conservatee’s Health
With general conservatorships, conservators and conservatees share the right to make decisions about the conservatee’s medical needs. Conservators should obtain the appropriate health insurance if the conservatee does not have any. Conservators should also 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. Once conservators have completed their final duties and received court approval, they will fill file a Petition for Final Discharge and Order. Once filed, conservators will be discharged as conservator.