If a person has been determined to be mentally incapacitated and has assets that will be wasted, the court will appoint a conservator to manage his or her assets. In some cases the conservator may also serve as a guardian. In either case the probate court conducts an annual review of the management.
Many people just need a little help with personal care − perhaps someone to organize their medical care or see that their living conditions are reasonable. Other people need more constant and direct supervision, in which case the Conservator is responsible for arranging for and overseeing care in a nursing home, an assisted living facility, or a home setting.
These are sensitive issues and Richard Cornell will do all he can to help families find the best solutions possible for their situations. Contact him today to learn more during a free consultation.
A conservatorship begins when a judge appoints a responsible person or organization (“conservator”) to care for an incapacitated adult’s (“conservatee”) personal or financial needs or both through a court process.
Conservatorships typically come into play when an adult can’t make informed decisions due to physical or mental limitations.
Setting up a conservatorship is a long and complex process. Because California’s legal system does not take lightly the loss of a person’s rights, handing in the petition for a Conservatorship is just one in many parts of the process.
1. Draft a Petition: To initiate the conservatorship process, a petition must be drafted. The petition should clearly outline to the court why a conservatorship is necessary, including:
Relevant details about the proposed conservator, conservatee, relatives, and petitioner.
Reasons justifying the need for a conservatorship.
Explanation of why potential alternatives to a conservatorship are not feasible.
An experienced conservatorship attorney can ensure that the petition contains all essential information.
2. File the Petition with the Court: Once the petition is complete, the petitioner (or their attorney) must file it with the court clerk in the county where the proposed conservatee resides. A filing fee, currently $435, is required, along with a court investigator fee, which may be waived based on the proposed conservatee’s estate size. The clerk will then schedule a court date for a hearing. If the proposed conservatee lacks capacity, the petitioner should request the court to appoint counsel for them before the hearing.
3. Serve Notice on the Proposed Conservatee: A disinterested party must personally deliver a citation and a copy of the petition to the proposed conservatee.
4. Serve Notice on the Proposed Conservatee’s Relatives and Relevant Entities: A disinterested party must mail a written notice about the conservatorship court hearing and a copy of the petition to the conservatee’s spouse/domestic partner (if any) and to all relatives within the second degree.
5. Coordinate Court Investigation: A court investigator will interview the proposed conservatee and others familiar with their condition. The conservatee’s estate covers the cost of this investigation, unless it would be a hardship for them. If the court appoints independent counsel for the proposed conservatee, that attorney will interview the conservatee and submit a report to the court regarding their interests.
6. Attend the Court Hearing: Both the proposed conservator and conservatee must attend the court hearing, unless the conservatee is excused due to poor health. The judge will determine if everyone has been properly notified and may appoint a lawyer to represent the conservatee if necessary.
A Conservatorship is a legal process where a Court appoints a capable and trustworthy adult, known as the Conservator, to manage the personal and financial matters of an individual who is unable to do so due to physical or mental incapacity, referred to as the Conservatee. The Conservator is tasked with making decisions on behalf of the Conservatee, which may include arranging for their elderly nursing care and living arrangements.
While both Conservatorship and guardianship serve as legal mechanisms aimed at safeguarding an individual’s legal, physical, and financial well-being, it’s important not to conflate the two. In California, Conservatorship differs from guardianship (or adult guardianship in other states) in the following ways:
Guardianship: Guardianship involves a court-authorized decision to entrust a reliable and capable individual with the responsibility of representing and managing the home of a minor child (aged 18 and under). It becomes necessary in scenarios such as the death of or incapacity of the child’s parents to provide care, the parents’ mental incapacity rendering them unable to care for the child, or other significant circumstances. Legal guardianship grants the guardian the authority to make decisions for the child until they reach the legal age of 18 in California.
Conservatorship: Conservatorship entails a court-ordered appointment of a reliable and capable adult to care for another incapacitated adult due to reasons such as old age, accident, injury, or similar circumstances leading to the adult’s inability to manage their day-to-day affairs. Given the Conservatee’s incapacity to care for themselves, the Conservator assumes responsibility for providing food, clothing, and shelter. If granted conservatorship of the person of the Conservatee, the Conservator possesses the authority to make medical decisions on behalf of the Conservatee.
In California, Conservatorship comprises three distinct proceedings:
General Conservatorship: This form of Conservatorship is intended to assist individuals who, due to old age, experience significant decline in physical and mental capabilities. It is also suitable for individuals whose incapacity exposes them to potential exploitation or financial elder abuse.
Limited Conservatorship: Limited Conservatorship applies to Conservatees with developmental disabilities such as epilepsy, autism, cerebral palsy, Down Syndrome, and similar conditions. It also encompasses individuals with intellectual disabilities (formerly referred to as mental retardation) or mental incapacity that commenced before the Conservatee’s 18th birthday.
LPS Conservatorship: Also known as mental health Conservatorship, this legal category in California is named after Assemblyman Frank Lanterman and Senators Nicholas Petris and Alan Short. LPS Conservatorship grants the Conservator the responsibility to oversee the mental treatment of a Conservatee suffering from severe mental illness. In LPS Conservatorship, the Conservatee’s mental condition poses a risk to their own life or others’, necessitating specialized living arrangements and continuous mental treatment. Initiation of an LPS Conservatorship is typically carried out by a government agency, such as the District Attorney’s Office.
Each type of Conservatorship warrants thorough review with the guidance of an attorney to ensure that proper procedures are followed by all involved parties.
While Conservatorship serves as a legal arrangement sanctioned by the Court to safeguard the well-being of the Conservatee, it should only be pursued when no other more suitable, practical, and sensitive alternatives exist.