In a Conservatorship proceeding, a Probate Court decides whether to allow an individual or organization to be appointed “Conservator” to protect and manage the personal care or finances, or both, of a person referred to as “Conservatee”, who is not physically or mentally able to manage his or her own affairs. A Conservatorship may be requested for people with temporary or permanent mental or physical disabilities.
A Conservator may be a family member, friend, private professional fiduciary, public guardian, or other legally appointed adult. The California Probate Code provides specific criteria as to who can serve and who has priority to serve as a Conservator.
Depending upon the needs of the proposed Conservatee, the probate Court can appoint a Conservator over the person (to have legal control over physical needs and protection) or over the estate (to have legal control over financial matters), or both, depending on the needs of the Conservatee.
A Conservatorship in California must be established by a court proceeding where the Court determines, among other things, whether:
- The proposed Conservatee consents (does not object), is unable to consent or objects to the Conservatorship;
- From clear and convincing evidence a Conservatorship of the person and/or estate is necessary and appropriate (in that the proposed Conservatee is unable to care for his/her personal affairs);
- The Conservatorship is the least restrictive alternative needed for the protection of Conservatee; and
- The proposed Conservator is suitable and qualified to be appointed as Conservator.
The court may appoint a temporary Conservator over a proposed Conservatee, often an elderly family member or a person suffering from a traumatic injury, for a fixed time period to take care of Conservatee’s more immediate needs that cannot wait until a general Conservator can be appointed.
In making decisions about what is best for a loved one, it is not unusual for conflicts to occur between family members or other interested parties. For that reason, it is vitally important to hire the legal services of a qualified conservatorship attorney.
What You Need to Know
Once appointed by a Court, a Conservator has a legal duty to act on the Conservatee’s behalf and best interests. The Conservator of the person must act responsibly in making decisions regarding appropriate living arrangements, medical care, safety and general well-being, while the Conservator over the estate must act responsibly in making decisions and managing the Conservatee’s financial affairs. Conservators are monitored by the Court through a Court Investigator and through the requirement that the Conservator file annual reports with the Court detailing the status of the Conservatee, as well as an accounting of the assets, income, receipts, expenditures, gains, losses and other financial affairs of the Conservatorship if a Conservator over the estate has been appointed.
There are two main types of Conservatorships in California — general and limited. A general Conservatorship provides a high level of care and is appropriate for adults who are no longer able to fully provide personal care for themselves and for those who are unable to make sound financial decisions.
By contrast, limited conservatorship applies to adults with a formally diagnosed developmental disability that makes it impossible to do some or all things without assistance. A third type of conservatorship, LPS, is applicable only when a person is deemed to be mentally ill and no longer able to care for him or herself. In both cases the conservator’s powers are limited to the area(s) in which the limited Conservatee is unable to manage on his or her own.
In order for the court to appoint a conservator, a formal petition must be filed listing the reasons why a conservatorship is necessary. A conservatorship attorney in California can assist clients in drafting the petition as well as guide them through the conservatorship process and provide advice and counsel on any alternatives they may wish to pursue.
Establishing a conservatorship can be a long and complex process. If you need to contact an attorney regarding conservatorship rights in the state of California, The Kiken Group can help. Experienced attorneys at law, The Kiken Group can assist you in the establishment of or disputes concerning the conservatorship, as well as other issues involved in its administration.