Conservatorship and Guardianship
Menifee Conservatorship and Guardianship Attorney.
California Conservatorship and Guardianship Attorney
Conservatorships and Guardianship are very similar and are both handled in the California Probate Court before a Probate Judge. Conservatorships are for adults and Guardianships are for minors.
1. Probate Conservatorships
These conservatorships are based on the laws in the California Probate Code. They are the most common type of conservatorship. Probate conservatorships can be:
- General Conservatorships — conservatorships of 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, like in a car accident, for example.
- Limited Conservatorships — conservatorships of adults with developmental disabilities who cannot fully care for themselves or their finances. Conservatees in limited conservatorships do not need the higher level of care or help that conservatees in general conservatorships need.
When a conservatorship is needed right away, the court may appoint a temporary conservator until a general conservator can be appointed. The request 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. The main duties of a temporary conservator are arranging for the temporary care, protection, and support of the conservatee, and protecting the conservatee’s finances and property.
2. Lanterman-Petris-Short (LPS) Conservatorships
LPS conservatorships are used to care for adults with serious mental health illnesses who need special care. These conservatorships are used for people who usually need very restrictive living arrangements (like living in locked facilities) and require extensive mental health treatment (like very powerful drugs to control behavior). Conservatees in LPS conservatorships cannot or will not agree to the special living arrangements or treatment on their own. LPS conservatorships must be started by a local government agency. For LPS conservatorship you must contact Riverside Public Guardian or Adult Protective Services – A private attorney cannot initiate LPS Conservatorships.
The probate court can appoint a conservator of the person, a conservator of the estate, or both, depending on the needs of the conservatee.
- A conservator of the person cares for and protects a person when the judge decides that the person cannot do it. The conservator is responsible for making sure that the conservatee has proper food, clothing, shelter, and health care. Depending on the conservatee’s ability to understand and make decisions, the conservator may need to make important medical choices for him or her.
- A conservator of the estate handles the conservatee’s financial matters — like paying bills and collecting a person’s income — if the judge decides the conservatee cannot do it.
Duties of a Conservator
The duties of a conservator of the person are to:
- Arrange for the conservatee’s care and protection.
- Decide where the conservatee will live.
- Make arrangements for the conservatee’s:
- Health care,
- Personal care,
- Recreation, and
- Get approval from the court for certain decisions about the conservatee’s health care or living arrangements.
- Report to the court on the conservatee’s current status.
The duties of a conservator of the estate are to:
- Manage the conservatee’s finances.
- 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.
- Responsibly invest the conservatee’s money.
- Protect the conservatee’s assets.
- Account to the court and to the conservatee for the management of the conservatee’s assets.
There are a number of people who can file for a conservatorship:
- The spouse or domestic partner of the proposed conservatee;
- A relative of the proposed conservatee;
- Any interested state or local entity or agency;
- Any other interested person or friend of the proposed conservatee; and
- The proposed conservatee, himself or herself.
In appointing a conservator, the court is guided by the best interests of the conservatee. If the proposed conservatee has nominated someone (and the proposed conservatee has the mental and physical ability to express his or her preference), the court will appoint that person as conservator unless it is NOT in the proposed conservatee’s best interests.
If the proposed conservatee has not or cannot nominate anyone, the law provides a list of preferences that the court generally follows when the court determines whether all these persons are qualified to serve as a conservator.
The order of preference is:
- Spouse or domestic partner
- Adult child
- Any other person the law says is okay
- Public Guardian
If the person closest to the top of the list does not want to be conservator, he or she can nominate someone else.
In the end, regardless of this order of preference, the selection of the conservator is up to the judge, and the judge makes this decision by considering the best interests of the proposed conservatee.
If you know someone who needs help and probably needs a conservator, but there is no suitable family friend or relative that can be the conservator, do some research to find a private professional fiduciary to act as conservator. Professional fiduciaries charge fees, but the court must approve in advance all fees paid by the person to be helped.
Alternatives to a Conservatorship
You must be sure that establishing a conservatorship is the only way to meet the person’s needs. If there is another way, an alternative to the conservatorship, the court may not grant your petition.
You may not need a conservatorship if the person who needs help:
- Can cooperate with a plan to meet his or her basic needs.
- Has the capacity and willingness to sign a power of attorney naming someone to help with his or her finances or health-care decisions.
- Has only social security or welfare income every month and the Social Security Administration can appoint you Representative Payee. The Representative Payee is the person the beneficiary allows to receive social security checks in his or her name on behalf of the beneficiary.
- Is married or is in a domestic partnership and the spouse or partner can handle financial transactions. The property must be community property or in joint accounts.
The Conservatorship Court Process
Setting up a conservatorship is a long and complex process. Before asking the court to appoint a conservator, the person asking for the conservatorship should be sure this is an appropriate arrangement for the proposed conservatee.
- Starting the conservatorship. The process may be started by: the proposed conservator; the proposed conservatee; the spouse, domestic partner, a relative, or a friend of the proposed conservatee; another interested person; or an interested state or local agency, employee of the agency, or public officer. The process starts once all the necessary paperwork is filed with the court.
- Completing the petition. The petition must include information about the proposed conservator and conservatee, relatives, and the petitioner (the person filing the case in court), and the reasons why a conservatorship is necessary. It must also explain why the possible alternatives to a conservatorship are not available in this case.
- Filing of the petition. The petitioner files the petition with the court clerk. He or she must pay the filing fee, plus a court investigator fee. A court date will be scheduled by the clerk.
- Informing the proposed conservatee. The petitioner must have someone else personally deliver a citation and a copy of the petition to the proposed conservatee.
- Informing the proposed conservatee’s relatives. The petitioner must have someone else mail a written notice about the court hearing on the conservatorship petition, together with a copy of the petition, to the conservatee’s spouse or domestic partner and close relatives.
- Investigation by a court investigator. A court investigator will talk to the proposed conservatee and others who may be familiar with the conservatee’s condition. The court will assess the conservatee’s estate for the cost of this investigation unless the court decides that the assessment would be a hardship for the conservatee.
- Hearing. The proposed conservatee must go to the hearing unless he or she is excused because of illness. At the hearing, a judge will determine if everyone has been properly notified and if a lawyer needs to be appointed to represent the proposed conservatee. Once the judge is ready to make a decision, he or she may grant or deny the conservatorship. If the judge grants the petition, an order appointing the conservator will be filed and Letters of Conservatorship will be issued. If there is an estate, a surety bond must be filed unless the court orders the conservatee’s bank accounts to be frozen.
If a judge grants the conservatorship
The conservator must purchase a copy of the Handbook for Conservators from the court or download it at the link provided.
He or she can then assume the powers authorized under the law. Also, the conservator of the person, conservator of the estate, and limited conservator of the estate must attend the training for conservators offered by the court. Each conservator will have the ongoing duty to report to the court for regular reviews and to meet with the court investigator.
The court investigator gives neutral information about the case to the judge.
The investigator will call the proposed conservator and set up a visit with him or her and the proposed conservatee. Sometimes, he or she will meet with both more than once. The investigator must also interview relatives of the proposed conservatee.
The court wants the investigator to:
- Have a private interview with the proposed conservatee.
- Explain how the conservatorship will change his or her life.
- Explain what will happen at the hearing.
- Explain about the proposed conservatee’s right to object to or oppose the conservatorship, to have a lawyer, to have a different conservator, and to have a trial by jury if he or she wants a jury to decide if a conservator is needed.
- If the proposed conservatee does not have the ability to understand or to give an opinion, the investigator will decide if a lawyer should be appointed to represent him or her.
- Review the petitioner’s Confidential Supplemental Information.
- Find out if the proposed conservatee is willing and able to come to the hearing. The investigator is allowed to look at the proposed conservatee’s confidential medical records.
- See if the proposed conservatee is able to fill out an affidavit of voter registration.
- Talk to the relatives about the proposed conservatorship and why it is necessary (or not).
- Write a confidential report for the court and send a copy to the conservator, the conservator’s lawyer, the proposed conservatee and his or her lawyer, the conservatee’s spouse or domestic partner, and the conservatee’s parents and children.
- Make recommendations to the judge about the case.
Once a conservator is appointed, the court investigator stays involved. Six months after the appointment, the investigator will review the case to make sure the conservator is fulfilling his or her responsibilities as conservator and that the conservatee’s rights are being upheld. The investigator will review the case again in another 6 months and at the end of each 12-month period after that.
If the investigator thinks the conservator is acting in the best interests of the conservatee and the court agrees, the court can reduce the scope of the reports the investigator must write and file in later reviews, but the investigator must make a personal visit and interview the conservatee and must prepare and file at least a short status report every year after the first year. The court may order additional reviews as necessary or helpful to protect the conservatee.
If the investigator thinks there may be a problem after one of these reviews, he or she may ask the judge to appoint a lawyer for the conservatee. This may start the legal process to sanction or remove the conservator and either appoint someone else as successor conservator or end the conservatorship.
The investigator will also visit the conservatee and make a report if:
- A petition for appointment of a temporary conservator is filed.
- The temporary conservator wants to move the proposed conservatee out of his or her residence.
- The conservator asks for exclusive authority to make medical decisions for the conservatee, especially if he or she is asking for special powers to take care of the needs of a conservatee with dementia.
- The conservator wants to sell the conservatee’s home (or former home).
- A petition for appointment of a successor conservator is filed and the conservatee cannot attend the hearing or refuses to attend the hearing on the petition.
The court investigator will explain these situations to the conservatee. He or she will then make recommendations to the court in a written report that will also be mailed to the conservator, the conservatee’s attorney, and his or her spouse or domestic partner and other close relatives.
A judge may appoint a temporary conservator to take care of a conservatee’s more immediate needs that cannot wait until a general conservator is appointed. A temporary conservator may also be appointed by the court to fill in temporarily in between permanent conservatorships, for example, if one conservator is removed and a new one has not yet been appointed.
Temporary conservatorships have a specific end date. A temporary conservator is usually appointed for a fixed time period, usually 30 to 60 days. These conservatorships can be of the person, of the estate, or both. The main role of the temporary conservator is to ensure the temporary care, protection, and support of the conservatee. And the temporary conservator of the estate protects the conservatee’s finances and property from any loss or damage until a general conservator can take over the management of the estate.
A temporary conservator cannot, without the judge’s prior approval:
- Move the conservatee from his or her home (unless it is an emergency) ;
- Sell the conservatee’s home, or, if the conservatee is a renter, give up the lease; or
- Sell or give away an estate asset.
To ask for the appointment of a temporary conservator, the request must be made as part of a general conservatorship court case.
A conservatorship is usually a permanent arrangement. But, in certain cases, a conservatorship may be ended or the conservator may be changed.
- The conservatee becomes able to handle his or her own affairs
Someone may have a conservator while he or she recovers from a physical or mental condition that is temporarily disabling. For example, the conservatee may have been in a serious car accident and be unable to handle his or her personal affairs or finances. After rehabilitation, the conservatee may recover and be able to take care of things again.In these cases, the conservatee, the conservator, a relative or friend of the conservatee, or some other interested person can ask the court to end the conservatorship. The court may ask the court investigator to evaluate the case and the conservatee’s condition to see if the conservatorship should be ended. If the judge ends the conservatorship, the conservator will be released from his or her duties.
- The conservatee doesn’t have any more assets
Sometimes all of the conservatees assets will be spent for his or her care. Without assets there may no longer be a need for a conservatorship of the estate. The conservatorship of the person continues if necessary.
- The conservatee dies
The conservatorship ends when the conservatee dies. But the court will not automatically release the conservator from his or her duties and close the conservatorship until the conservator takes certain actions to finish the case.
- The court removes the conservator
The court may remove a conservator who is not doing the job or is not able to do it, and then appoint a new conservator. The conservatee or any of his or her relatives or friends may ask the court to remove and replace the conservator. If the conservatee makes the request and does not have his or her own lawyer, the judge will generally appoint one to file the petition for the conservatee.
- The conservator dies
If the conservator dies, a relative, friend, or the conservator’s executor (the personal representative of his or her estate) should let the court know. If there is an estate conservatorship, the conservator’s executor or attorney may be required to file a final account of the conservatee’s financial affairs, or another conservator may be required for this purpose.
- The conservator resigns
If the conservator becomes ill or cannot continue serving as a conservator for some other reason, the conservator can file a petition asking the court to accept his or her resignation. Until (and unless) the court accepts the resignation, the conservator is still fully responsible as conservator.If the court accepts the resignation, the judge may ask the former conservator to help find someone else to replace him or her. If there is no one suitable, the Public Guardian or a professional fiduciary may be appointed.
When a conservator is removed or resigns, or the conservatorship ends, the conservator will be released from his or her duties, but only after he or she wraps things up and provides the court the needed information or documents to either transfer the case to a new conservator or end the conservatorship. For conservatorships of the estate, the conservator will have to turn in a final accounting.
In California, people with developmental disabilities have a right to services they need to live independent, productive, normal lives. The state must provide services for each person with a developmental disability at each stage of his or her life, regardless of age or the degree of the disability. These state services are provided through the regional centers, which are nonprofit corporations that have contracts with the California Department of Developmental Services to serve people with developmental disabilities.
The services provided through Regional Centers are available to persons with developmentally disabilities whether they are under a general conservatorship, a limited conservatorship, or no conservatorship at all.
Get more information on regional centers and the California Department of Developmental Services.
A limited conservatorship is a court case where a judge gives a responsible person (called a “limited conservator”) certain rights to care for another adult who has a developmental disability (called a “limited conservatee”).
Limited conservatorships are for adults with developmental disabilities. Developmental disability refers to a severe and chronic disability due to a mental or physical impairment that started before age 18. Limited conservatorships are set up to assist developmentally disabled adults who are unable to provide for all their personal or financial needs.
As with general conservatorships, there are two kinds of limited conservatorships:
- A limited conservatorship of the person is a court arrangement where a conservator cares for and protects a developmentally disabled adult and provides for the conservatee’s needs associated with daily life.
- A limited conservatorship of the estate is a court arrangement where a conservator handles the conservatee’s financial matters — like paying bills and collecting the conservatee’s income if the conservatee has an estate.
You do not need a conservatorship of the estate if:
- The developmentally disabled adult you care for gets public assistance, like Supplemental Security Income (SSI) or Social Security (SSA) but has no other assets, or
- The developmentally disabled adult earns a wage.
But you need a conservatorship of the estate if the developmentally disabled adult has other assets, such as an inheritance or a settlement from a lawsuit that is not in a special needs trust.
If a developmentally disabled minor will soon be 18, it is often a good idea to start the process of requesting a limited conservatorship a few months before the developmentally disabled person’s 18th birthday. But, keep in mind that a limited conservatorship can be established at any time after the person with the developmentally disability has reached age 18.
The Superior Court Probate Department will supervise the limited conservator. Someone from the court investigator’s office will review the case 1 year after the conservatorship is granted, then every 2 years after that. The investigator will call the conservator to update the court’s file. The investigator will also visit the conservatee.
Limited Conservator’s Duties
When someone is appointed as a limited conservator of a person who is developmentally disabled, the court can give the conservator limited responsibility for the person and their estate.
The limited conservator’s Letters of Conservatorship and the court’s order of appointment list the exact areas (powers) in which the limited conservator is authorized to act. The limited conservatee keeps all other legal and civil rights. 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 conservator may ask the court for the powers to:
- Decide where the limited conservatee will live (NOT in a locked facility).
- Look at the limited conservatee’s confidential records and papers.
- Sign a contract for the limited conservatee.
- Give or withhold consent for most medical treatment for the limited conservatee (NOT sterilization and certain other procedures).
- Make decisions about the limited conservatee’s education and vocational training.
- Give or withhold consent to the limited conservatee’s marriage or domestic partnership.
- Control the limited conservatee’s social and sexual contacts and relationships.
- Manage the limited conservatee’s financial affairs (for a limited conservator of the estate).
Duty to help develop the limited conservatee’s self-reliance
Overall, a limited conservator’s responsibility is to help the limited conservatee develop maximum self-reliance and independence. A limited conservator must get treatment, services, and opportunities to help the limited conservatee become as independent as possible. This can be:
- Training or education,
- Medical and psychological services,
- Social opportunities,
- Vocational opportunities, and
- Other appropriate help.
To learn more about Conservatorships please read the HANDBOOK ON CALIFORNIA CONSERVATORSHIP
or you can visit the Judicial Council of California – Conservatorship for more information.
Menifee Lawyer / Menifee Attorney / Raxter Law has filed and assisted client in numerous conservatorship and guardianship matters. Let our experience assist you!