Conservatorships protect vulnerable adults who cannot fully handle financial matters or daily living needs.
Is your child with an intellectual disability turning 18, and vulnerable to predators? Or is he or she unable to take care of their daily needs? You may need a limited conservatorship.
Is your parent or grandparent being cheated out of money, or neglecting to care for themselves? If they didn't put powers of attorney into place, you may need to take the difficult step of filing for a conservatorship.
Or are you an elder, whose family has filed for a conservatorship after you had a health episode or made a bad decision? If you're convinced you can still make your own decisions, you have the right to have an attorney to oppose their petition.
What is a Conservatorship?
A conservator is charged with “conserving” – with preserving the life and property of someone who can no longer do that for themselves. A conservator (called a guardian in some states) takes control over the financial affairs, and sometimes the healthcare and living situation, of a person who has been judged incompetent.
A conservatorship is a last resort. The ideal is to put in place healthcare powers of attorney and financial powers of attorney that will enable people to act on your behalf if you can no longer do so. But if those documents were not put in place and a person is endangering their own safety and financial survival, someone may need to step in and take care of them.
How is a Conservatorship established?
A conservatorship is established by the courts. A person who believes their family member or other loved one cannot take care of themselves can petition the court to have them judged “incompetent.” Doctors will write reports detailing ways the person no longer cares for themselves, such as forgetting to eat, to bathe, or to take medicines, forgetting to shut off the gas, or wandering from their home lost. The proposed conservatee will be appointed counsel, and they may appear in court if they oppose being conserved.
Who can petition for a Conservatorship?
A spouse, domestic partner, family member, or friend may petition to be appointed conservator. The Public Guardian’s office may also file a petition if it is notified that a person has become incompetent and no one else has filed a petition. To be appointed, the petitioner must be approved by the court and must be bondable.
How does a Conservatorship work?
If the court approves the conservatorship, a conservator will be appointed. Generally, the court chooses from family members who are willing to serve and financially stable. If no one suitable is available, a professional fiduciary may be appointed. If the conservatee has few funds, the public guardian may be appointed. The conservator must report to the court frequently on the conservatee’s living situation and finances.
What if I'm the proposed conservatee, and
I think I'm competent?
As a proposed conservatee, you have the right to appear in court, and to have counsel represent you. You can bring reports from doctors who support your position. If you know that you appear negatively at certain times of the day due to pain or medication, you should insist that your attorney try to obtain a hearing at your better time of day. You will need to explain to the judge your reasons for doing or not doing the things that the petitioner is presenting as evidence of why you need to be conserved.
What are the advantages of a Conservatorship?
A conservatorship is subject to court oversight. This helps to prevent fraud. All property must be inventoried when the conservatorship begins. The conservator must then account to the court at least annually, and any major decisions, such as selling the conservatee’s home, must be approved by the court.
What are the disadvantages of a Conservatorship?
One disadvantage of a conservatorship is that it removes most rights from the conservatee. If the conservator decides to move the conservatee to a nursing home, neither the conservatee nor other family members have a say in the matter. An important disadvantage is the cost. There is an initial cost to file the petition. If the conservatee wants to oppose the conservatorship, more of her funds are depleted to hire her own attorney. A professional conservator will need to be paid, and all the reports and petitions to the court are expensive. If one purpose for the conservatorship was to preserve funds so the conservatee could remain in his home, that purpose may be defeated by the cost of the conservatorship.
Are there different types of Conservatorhsips?
The most common conservatorships are the Probate Conservatorships, which can be conservatorship of the estate, conservatorship of the person, or both. A conservator of the estate handles all the financial affairs of the conservatee. A conservator of the person handles the conservatee’s personal affairs, such as where the conservatee lives and who provides care. A petition may be filed for one or both types of conservatorship.
A Lanterman Petris Short (LPS) Conservatorship (LPS) is only for people who are seriously mentally ill and need special care (usually placement in a locked facility and/or very powerful drugs to control behavior). An LPS conservatorship is initiated by a psychiatrist at a mental hospital, in conjunction with the public guardian. An LPS conservatorship is typically initiated after a person with severe mental illness has been on an involuntary hold due to violent behavior.
A limited conservatorship is a special conservatorship in California for developmentally disabled adults. Developmentally disabled adults are usually capable of handling many things on their own. But they may not, for example, be competent to sign a contract or to make medical decisions without help. The petitioner (typically a parent or sibling) will request certain powers, such as access to confidential records or the authority to contract on behalf of the conservatee. In most cases, the conservatee will retain the right to marry and to have a social life of their choosing. If their actions demonstrate that they may endanger themselves (such as entering into and remaining in an abusive relationship), the conservator may petition the court for the authority to protect the conservatee from that relationship.
Conservatorships are not a DIY task—Sonin Law can help.
Filing for a conservatorship, or opposing a conservatorship, is not a simple matter. Don’t rush into court unprepared. Call Sonin Law today at (530) 662-2226. We can discuss the pros and cons, as well as alternatives, and represent you in court if needed.
© 2015 Barbara Sonin
DISCLAIMER: In publishing these materials, the author is not engaged in rendering legal, accounting or other professional service. If legal advice is required, the service of a competent professional should be sought. No attorney-client relationship is created by the provision of this information.