Conservatorships for Californians


An Introduction to Conservatorships

In short, a Conservatorship is the arrangement of having an official conservator be in charge of the conservatee’s care and/or finances. You might hear a conservator be called a “guardian” or “protector” and the conservatee be called a “ward,” “charge,” or “protected person.”

Woman in a labyrinth. She may need a Conservatorship.

Sometimes life is like a labyrinth…

If someone you know has become unable to care for himself, and there are no other alternatives, you might need to ask the court to become his conservator. We have more details for you below.

If it is you that is no longer able to care for yourself and make wise decisions for yourself — or if someone you know is trying to convince a judge that that’s the case — then you’ll need act fast to defend your rights. If someone has petitioned to become your Conservator and you don’t want this please call us! We can help you with this, so please call us, but we hope this will never happen to you.

We want you to live to a great old age; and yes, eventually, you’ll need care, but there’s a far better option than having someone appointed for you. The better option is that you choose your own conservator by planning ahead and executing a Nomination of Conservator.

What is a Conservatorship?

A Conservatorship is the Court’s appointing an official conservator be in charge of the conservatee’s care and/or finances.

The more common conservatorship, Probate conservatorship, is to help an elderly or injured person when he or she is no longer take care of himself or his finances. Sometimes, if a child’s parents are unable to make decisions about the child’s care, a conservatorship may be appropriate as well. Or a person easily influenced by another or others and is thus open to being easily defrauded.

Pretty much anyone who knows the potential Conservatee (aka ward or protected person) can file a request. You can even file a request for your own conservator on your own behalf as part of your planning for the future. As a protection, conservatorships are not taken lightly and not easily granted when petitioned for in California. The California court must see that this is the only solution for the person in question and that no better alternative exists. The Conservatorship carries the side effect of limiting the rights or abilities of the protected person, so it must be in the best interests of the proposed conservatee.

The other type of Conservatorship, called Lanterman-Petris-Short, or LPS, provides a more encompassing control. This is for when an adult has serious mental health illness and thus needs special care or treatments, but will not agree to special/restrictive living arrangements or mental health treatment on his own.

Individuals cannot propose such a serious LPS Conservatorship; they are applied for by local government agencies via the county Public Guardian or Public Conservator. You can find out more about the Lanterman–Petris–Short Act of 1967 in this Wikipedia article.

Types of Conservators

There are two types of Conservators — conservator of a person and a conservator of an estate. Both are not necessarily needed in every case. When they are both needed, they do not have to be the same person. This way you have a person who is great on a personal level with your loved one or yourself, but not the right person to take care of finances, and vice versa.

1. Conservator of a person

conservator of the person, while attempting to maintain the protected person’s independence, arranges for everything that goes into the conservatee’s well-being, care and protection.
That is:

  • Providing food or meals
  • Choosing and maintaining housing
  • Providing housekeeping
  • Providing clothing
  • Determining and supervising medical care
  • Non-medical issues such as counseling and entertainment
  • Bill paying
  • Providing for proper hygiene
  • Providing recreation and transportation
  • Making the “end of life” decisions

 

Under this type of conservator, the protected person potentially loses the right to self-determine things such as:

  • Choosing his own residence and performing property transactions
  • Providing informed consent for his own medical treatment
  • Making end-of-life decisions
  • Obtaining a driver’s license
  • Owning, possessing or carrying a firearm or other weapon
  • Entering into any contract or filing a lawsuit
  • Marrying
  • Voting

This conservator reports all of these actions to the court annually.

2. Conservator of the estate

A conservator of the estate manages and protects the conservatee’s finances starting by finding all of the conservatee’s assets and having them appraised. He or she controls these assets, creating a budget to show what the conservatee can afford.
This includes collecting and managing his conservatee’s income, investing the money as safely as possible to safeguard it, and paying the bills. In the event that the conservator feels it best to sell any major assets, he may do so after obtaining court approval.

This conservator is accountable to the court and to the Conservatee, reporting to the court as scheduled.

Conservatorship of a Minor also falls under this category but is somewhat different because the minor still has parents. Typically, the child’s parent must agree to this arrangement.

Do you need to petition for a Conservatorship for someone— or bring one into play for yourself?

A couple alone on a beach boardwalkHere are the guidelines.

You don’t need a Conservator if:
The person in question is able and willing to work within a plan that takes care of all basic needs. See Types of Conservators above if you’re wondering what those needs may be.

You don’t need a Conservator if:
The person in question is willing and able to sign a Power of Attorney appointing another person to aid with health and financial decisions/situations.

You don’t need a Conservator if:
The person in question has no other income besides social security or welfare income. In this case, a Representative Payee can be set up to receive the social security checks on behalf of the person in question. The Social Security Administration sets up this up.

You don’t need a Conservator if:
The person in question has a spouse or domestic partner who is able to handle the finances and the property is in joint accounts or is community property.

As you will read in a few places on our site or learn when you meet with us, we believe that one of the best things you can do for yourself is to create an Advance Health Care Directive. Should you or your loved one unexpectedly become incapacitated, or simply reach a point of advanced years, a properly composed Advance Health Care Directive will clearly state your wishes for your or your loved one’s health care and even what will happen to you or your loved one after passing on. This is the best way to assure that your or your loved one’s wishes will be carried out. With an Advance Health Care Directive in place — and updated regularly — no one should find himself becoming a Conservatee.

We also strongly recommend that our clients set up Living Trusts (aka “inter vivos” trusts). As a Living Trust clearly states what is to happen to your estate, you can likely avoid having a Conservator of your estate appointed by the court.

Need help fighting a Conservatorship?

If someone is petitioning to make you a Conservatee (protected person) and you don’t like any or all of the proposal, please call us!

You have the right to Due Process.

You may be entitled to notice of, and ability to attend all legal proceedings related to your conservatorship. You may obtain representation by an attorney, present evidence, and confront and cross-examine all witnesses.

Need help petitioning to become or appoint a Conservator?

If you need help petitioning to become or appoint a Conservator for a California resident, or you’re a Californian and would like to appoint your own while you’re still able, we encourage you to contact us. We can help you evaluate your circumstances, options and alternatives, and arrange the Conservator if that’s the best thing for all parties.

As the official California Courts web page says, “Setting up a conservatorship is a long and complex process.” Indeed, it is. Handing in the petition for a Conservatorship is just one in many parts of the process because, happily, the California legal system does not take lightly the loss of a person’s rights.

or…

If you’d like more information about Conservatorships, you can visit this official California Courts page — and of course, we can help you out with this!