A conservatorship is an court-supervised, legal relationship between two adults, one who is determined to be mentally disabled and the other designated to make certain decisions on that person's behalf. Conservatorships are intended to protect the mentally disabled from his or her lack of ability to make decisions in his or her best interest and from the abuse of others.
For example, a widow who has advanced Alzheimer's disease and no longer can remember how to pay her bills or attend to her personal care is vulnerable to various, critical problems. In order to provide sufficient care and protection for her, her adult son may need to obtain the legal authority to make significant decisions for her, such as where she lives or how her money is spent. If the conservatorship were approved, the widow would be called the "Conservatee" and the son would be called the "Conservator".
The type of conservatorship described above is called a general probate conservatorship. These general probate conservatorships are usually established for the elderly who, due to dementia or Alzheimer's, are unable to care for themselves. These are typically the most common type of conservatorship before the court. There are two others types of conservatorships that are defined in California law, LPS (Lanterman-Petris-Short) Conservatorships, and Limited Conservatorships.
LPS Conservatorship are commonly referred to as mental health conservatorships. These types of conservatorships are established for individuals who have serious mental health issues (e.g. schizophrenia/major depressive disorder/etc.), cannot take care of there own food/clothing/shelter, and are a danger to themselves or others. LPS conservatorships are one year in duration and require the conservatee to be placed in a locked facility.
Limited conservatorships are established for individuals who were developmentally disabled prior to turning age 18. This type of conservatorship is often established by parents of children who were either born developmentally disabled or acquired a mental disability prior to reaching the age of majority.
Each of these types of conservatorships are very specific and require an attorney who has specific expertise in this area of law. Please feel free to contact our office if you have any questions regarding either LPS or Limited Conservatorships.
General Probate Conservatorships, LPS conservatorships, and Limited Conservatorships each have their own specific requirements. All three, however, share common sub-groups: conservatorships over the person and conservatorships over the estate. A conservatorship over the person is applicable when the disabled person lacks the capacity to take care of their essential needs, such as food, clothing, housing, or healthcare. A conservatorship over the estate is applicable when the disabled person lacks the capacity to take care of their finances or assets. Some conservatees will require a conservator of the person, some will require a conservator of the estate, and some conservatees will require both.
Having a either a mental disability, physical disability, or extreme irresponsibility alone does not meet the legal criteria for a conservatorship.
In order for the court to approve a conservatorship of the person it must be established that the proposed conservatee (the person in need of care) lacks the mental capacity to take care of his or her most basic and critical needs, such as food, clothing, housing and healthcare. This inability must be pervasive, meaning that the proposed conservatee's mental capacity consistently prevents him or her from performing these daily tasks.
In order for the court to approve a conservatorship of the estate it must be established that the proposed conservatee (the person is in need of care) lacks the mental capacity to manage or protect his or her financial affairs. Thus a conservatorship over the estate is necessary if the proposed conservatee lacks the mental capacity to manage the day to day financial affairs of life, like paying bills or depositing checks. A conservatorship of the estate may also be necessary if the proposed conservator is unable to avoid the undue influence of family members, neighbors, friends, or strangers.
It must also be established that there is no other viable option to care for the disabled person. If there is an alternative to a conservatorship that will provide sufficient protection and that alternative is less intrusive into the affairs of the disabled person, the court will not approve a conservatorship.
The most important duty of a conservator is the most difficult to define, but the most important to perform: to consistency act in the best interest of the conservator. Courts do not simply establish conservatorships and assume that will happen. Since conservators wield considerable control over the mentally disabled person, the courts mandate vigorous reporting requirements.
For example once a conservatorship is established, the conservator must submit a care plan within sixty days of the establishment of the conservatorship.
Additionally if a conservatorship of the estate is established the conservator must submit an inventory of all the conservatee's assets within 90 days of establishing the conservatorship. The conservator must also provide annual or biannual accountings of the transactions made on behalf of the conservator. These reports must be detailed, accurate and include all income and expenditures for the Court's review.
Furthermore, conservators of the person are often required to submit periodic status reports about the conservatee and general information about what the conservator is doing on the conservatee's behalf. Courts will also periodically initiate investigations of the status of the conservatorship, the performance of the conservator, and the condition of the conservatee.
Conservators also have a duty to refrain from making decisions for the conservatee that are outside the scope of the conservatorship. An obvious example is if a person is a conservator of the estate for another, that conservator is not authorized to make medical decisions on behalf of the conservatee. There are many more subtle situations that can arise. The responsibility for acting within the court approved parameters of the conservatorship falls exclusively upon the conservator.
On the other hand, the conservator is generally entitled to reimbursement for some expenses incurred in the execution of the conservatorship. In some circumstances, courts approve compensation for time spent performing the duties. Courts, however, carefully scrutinize any petition for reimbursement for expenses and compensation for time. Conservators must keep highly detailed records in order for a court to approve either.
Establishing a conservator is a complex legal process involving multiple forms, persons, and hearings. What follows is simply an overview to help you understand the basic legal process of establishing a conservatorship.
After you have determined that conservatorship is necessary, someone must file documents with the court requesting that conservatorship be established. These documents detail the reason(s) why a conservatorship is necessary and why there are no alternatives to a conservatorship. The documents also provide detailed information to the court regarding the person who is nominated to be conservator. In almost every conservatorship the documents must include a Capacity Declaration completed by a licensed health care provider who has met with the proposed conservatee.
Once the documents are filed, the court will set a hearing date regarding the conservatorship. This hearing date is often set over one month after the documents are filed. If there is an emergency that requires a conservatorship be established earlier, then it is possible to file a separate set of documents requesting what is called a "temporary conservatorship." The temporary conservatorship can be established very quickly if the court finds that there are exigent circumstances. The decision to request a temporary conservatorship is very serious and you should consult with a qualified attorney before requesting a temporary conservatorship. Even if the court establishes a temporary conservatorship everyone will still have to later return to court in order to establish the "permanent" conservatorship.
Once the documents are filed, the court will investigate the necessity of the conservatorship. The court investigator will talk with the proposed conservatee, the proposed conservator, the healthcare care professionals, and anyone else that has relevant knowledge that can help the investigator evaluate whether the conservatorship is appropriate. The investigator will then file a report with the court, summarizing the information and recommend, in addition to other issues, whether the proposed case needs a conservatorship, whether the proposed case consents to the conservatorship, and whether the proposed conservator is qualified and appropriate.
The court will then conduct a hearing regarding the conservatorship. At the hearing the judge will listen to the testimony of the proposed conservatee (if the person is able to attend the hearing), the proposed conservator, and all other interested persons ( e.g. friends and family).
If the proposed conservatee objects to the conservatorship, if there are third party objections, or if there are other contentious issues, the court will set the matter for trial wherein the judge will weigh all the evidence and render a decision regarding the proposed conservatorship.
If the court establishes the conservatorship then an additional set of documents are filed creating the conservatorship and the conservator is ordered to provide additional documentation to the court regarding the conservatee's assets and the conservator's actions. This further documentation is due at specific points in time in the future.
As you can see, the process involved in a conservatorship is complex and time consuming. It is important that you consult with a lawyer who understands both the legal complexities and emotional dynamics involved in conservatorship law.
A conservatorship will only be approved if the court determines that there are no alternatives available other than a conservatorship. Thus, an examination of all options should be done with a qualified attorney prior to petitioning the court for conservatorship. This is prudent not only because it is required by the court, but also because a conservatorship can be quite arduous.
The most common alternative to a conservatorship is an estate planning document called Durable Power of Attorney. A Durable Power of Attorney is executed by an individual when he/she is competent. That individual will nominate an agent to take care of his/her medical and financial decision if and when he/she becomes incompetent. Generally speaking a durable power of attorney is the only alternative to a conservatorship of the person.
There are, however, additional alternatives to a conservatorship over the estate. For example, if an incompetent person is married, that person's spouse has legal authority to make a range of decisions regarding the property they mutually hold- what is known in California as "community property". Additionally, a spouse can get court approval for a specific transaction if he or she needs only temporary authority.
Another alternative to a conservatorship over the estate is the creation of a representative payee. Certain government agencies allow the responsible third party to receive checks from a governmental agency and spend the money on the mentally incompetent person's behalf. Therefore, when the person in need does not have significant assets but receives benefits on an ongoing basis (e.g. social security, or disability) this approach may be appropriate.
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