There are times when caring for someone you love involves making difficult decisions. This often means stepping in at the right time to manage the financial or healthcare affairs of someone who needs help. Here at The Law Offices of Stephen Penner, we have a history of successfully petitioning for and obtaining conservatorships against heavy litigation and opposition from other interested parties. Probate conservatorships are court proceedings wherein a judge appoints a responsible person or organization (called a "conservator") to care for another adult who cannot fully care for him/herself or his/her finances (called a "conservatee").
Sometimes, obtaining a conservatorship is the only way to protect a vulnerable person from being manipulated or being subject to undue influence by unscrupulous individuals. When a conservatorship is needed right away, the court may appoint a temporary conservator until a general probate conservator can be appointed. A request for a temporary conservator must be filed as part of a general conservatorship case and can be filed either at the same time or soon after the general conservatorship case is opened with the court.
DIFFERENT TYPES OF CONSERVATORSHIPS
If a conservatorship is needed, the first decision to make is the kind of conservatorship for which to petition the court. There are two kinds of conservators:
- A conservator of the person cares for and protects a person when the judge decides that the person (conservatee) can’t do it him/herself.
- A conservator of the estate handles the conservatee’s financial matters, such as paying bills and collecting a person’s income, if the judge decides the conservatee can’t do it. A conservator of the person, estate, or both may be appointed by the court depending upon the conservatee’s needs.
The second decision to make is who should act as the conservator. This is a decision that requires wisdom, as the identity of the proposed conservator may often be the determining factor in whether the court grants or denies your Petition. In some cases, it is best for a family member close to the proposed conservatee to help manage the conservatee’s affairs. In other cases, particularly if there are disputes between family members, it is more prudent to select a neutral independent party to act as conservator. The conservator of the person and the conservator of the estate can be the same person, or can be two separate individuals. Some professional fiduciaries, who often act as conservators, specialize in managing personal care, while others specialize in administering estates.
WHEN TO ESTABLISH A GENERAL PROBATE CONSERVATORSHIP
General Probate Conservatorships are for adults who cannot take care of themselves or their finances. These conservatees are often elderly people, but can also be younger people who have been seriously impaired, for example, in a car accident. Before filing for a conservatorship, it must be made certain that establishing a conservatorship is the only way to meet the individual’s needs and that it is the least restrictive means of protecting the person and his or her assets. If there is another way to protect the person, the court will likely not grant your petition. Possible alternatives are:
- Power of Attorney for finances and/or health care matters;
- The hiring of professional fiduciaries;
- The hiring of health care managers;
- Becoming a substitute payee for public benefits; or
- Establishing a plan with a residential care facility.
RESPONSIBILITIES AND DUTIES OF THE CONSERVATOR
If you are conservator of the person, you must take care of the conservatee’s food, health care, medications, clothing, personal care, housekeeping, transportation, shelter, and well-being. You will be required to report to the court on the conservatee’s current status.
If you are conservator of the estate, you must:
- Manage and protect the conservatee’s assets;
- Locate and take control of all assets;
- Collect the conservatee’s income;
- Make a budget to show what the conservatee can afford;
- Pay the conservatee’s bills;
- Invest the conservatee’s money; and
- Account to the court and to the conservatee for your management of the conservatee’s assets.
Limited Conservatorships are for adults with developmental disabilities. Developmental disability refers to a severe and chronic disability that is attributable to a mental or physical impairment. Limited conservatorships are set up to assist developmentally disabled adults who are unable to provide for all their personal or financial needs.
A limited conservator’s duty is to help the limited conservatee develop maximum self-reliance and independence. Because developmentally disabled people can usually do many things on their own, the judge will only give the limited conservator power to do things the conservatee cannot do without help. The limited conservator’s Letters of Conservatorship and the court’s order of appointment list the exact areas in which the limited conservator is authorized to act.
When filing for a conservatorship, it is very important to be aware of the notice requirements. California law requires that notice of a conservatorship petition must be given to all first and second degree relatives of the proposed conservatee at least 15 days before the hearing.
SCHEDULE A FREE CONSULTATION
At The Law Offices of Stephen E. Penner, we are happy to provide free consultations if you have any questions about whether or not to seek a conservatorship, and what steps and factors must be considered in making the decision to file for one. Please contact us, and we will schedule you an appointment.
- Travis Neal (Ed.). 2017. California Conservatorship Practice. Oakland, California: Continuing Education of the Bar (CEB).
- Goldoftas, Lisa & Hendrickson, Elizabeth A. (2002). The Conservatorship Book for California, 4th Edition. Berkeley, CA: Nolo.