Conservatorship Law

A conservatorship is a court-created relationship that is created by a probate judge and intended to assist an adult with his or her own well-being and/or the management of his or her finances.

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The parties to a conservatorship include: A conservator, who is appointed to care for the well-being and/or finance management of another person (the conservatee), and a conservatee, who is someone that has been legally declared incapable of caring for himself or herself with regards to his or her own well-being and/or the management of his or her finances and requires the supervision of a conservator.

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Once a legal conservatorship is created, the conservator becomes legally responsible for the care and management of the conservatee’s well-being and/or management of the conservatee’s finances.

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Conservatorship v. Guardianship: A conservatorship involves the supervision of an adult’s physical well-being and/or management of his or her finances. A guardianship serves the same purpose, except that a guardianship deals with the supervision of a minor’s physical well-being and/or management of his or her finances.

 

For purposes of conservatorship and guardianship in California, a “minor” is a person under the age of eighteen (18) years of age.

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Types of Conservatorships

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General Conservatorship: A general conservatorship may be established for an adult who is incapable of caring for himself or herself, and/or is incapable of managing his or her finances, or both.

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The incapacity of a conservatee to care for his or her own well-being and/or management of his or her finances is usually connected to the conservatee’s inability to care for himself or herself for the following reasons: Advanced age, Alzheimer’s disease, dementia, stroke, Multiple Sclerosis (MS), obesity, arthritis, catastrophic injury, delirium tremors (DTs), or other disease or defect of the mind or physical disability.

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Note: If the proposed conservatee is physically developmentally disabled, but otherwise, he or she does not suffer from a limited mental capacity, then a limited conservatorship is usually available (See limited conservatorship below).

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Conservator of the Person: A conservator of the person may be established for an adult who is incapable of caring for his or her own well-being due to advanced age, Alzheimer’s, dementia, stroke, MS, obesity, arthritis, catastrophic injury, etc. With some limitations, a conservator of the person is responsible for ensuring that the conservatee has proper clothing, shelter, food, health care, living arrangements, and protection.

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Note: A conservator of the person may not do any of the following without special court permission: commit the conservatee to a long-term health care facility, sell the conservatee’s home, move the conservatee’s residence, allow the conservatee to use experimental medications, allow the conservatee to undergo major life altering elective surgery, or draft a conservatee's will.

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Also, a general conservatorship and a conservatorship or the person are very similar in that both type of conservatorships allow the conservator to care for the well-being of the conservatee; however, a conservatorship of the person does not allow the conservator to manage the conservatee’s finances, whereas a general conservatorship allows a conservator to care for the well-being of the conservatee, including the management of the conservatee’s finances.

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Conservator of the Estate: A conservator of the estate may be established for an adult who is incapable of managing his or her own finances, including the conservatee’s assets, income, inheritance, debts, and property, due to a physical or mental disability.

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A conservator of the estate is not permitted to use the conservatee’s personal assets for the conservator’s personal use without court permission. Likewise, a conservator of the estate is not ordinarily personally liable for the conservatee’s debts unless those debts are related to the conservatee’s negligence.

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Note: When a conservatorship of the estate is established, the court will require the conservator to post a bond equal to the liquid assets of the conservatee. The bond is required to protect the conservatee in the event that the conservator negligently or fraudulently mismanages the conservatee’s finances to the conservatee’s detriment.

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Also, a general conservatorship and a conservatorship of the estate are similar in that both allow the conservator to care for the conservatee’s estate; however, a conservator of the estate is limited to management of the conservatee’s finances, whereas a general conservatorship may usually care for both the conservator’s physical well-being, and the conservatee’s finances.

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Important: A conservatorship of the person and a conservatorship of the estate are treated independent of one another. While most conservators are appointed to serve as both the conservator of the person as well as the conservator of the estate (general conservatorship), appointment to serve as both types of conservators is neither required, nor permitted, without court approval.

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Limited Conservatorship: A limited conservatorship may be established when the conservatee is capable to care for himself or herself and/or capable of managing his or her own finances, but the conservatee’s ability to do so is limited due to a mental or physical developmental disability that started before the conservatee was eighteen (18).

 

Limited conservators may be appointment to serve as the conservator of the person or as the conservator of the estate, or both, with court approval.

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Note: For limited conservatorships the Letters of Limited Conservatorship (court orders) list the exact rights and responsibilities of the conservator. The conservatee keeps all remaining rights and responsibilities not covered in the Letters of Limited Conservatorship. The reason for this is that many developmentally disabled adults can, and want to, manage their own physical well-being and/or finances, and the court will not interfere with a developmentally disabled adult’s right to care for himself or herself so long as the conservatee is capable. Also, in limited conservatorships, the court imposes a duty on the conservator to assist the conservatee in becoming self-reliant and independent.

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Lanterman-Petris-Short (LPS) Conservatorship: An LPS conservatorship is available in some cases for adults who require extremely controlled living arrangements (i.e. non-consensual lockdown facilities) and require extensive mental health care due to severe mental illness. LPS conservatorships must be started by a government agency.

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Temporary Conservatorship: A temporary conservatorship is virtually the same as a general conservatorship but where the conservator is appointed only for a temporary period. The purpose of appointing a temporary conservator is to meet the conservatee’s immediate needs until a regular conservatorship can be established.

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Note: A temporary conservatorship may be established on an emergency basis (ex parte hearing). A temporary conservatorship may be of the person, of the estate, or both, with court permission. Without court permission, a temporary conservator may not move the conservatee from his or her home or sell or gift away a conservatee’s estate asset(s).

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Who May be Appointed as Conservator

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Most conservatorships are established by close family members of the proposed conservatee. However, any adult may serve as a conservator with court approval.

 

Competing Conservators: When there are competing proposed conservators the court has an order of preferred conservators. The order of preferred conservators is as follows: Spouse or domestic partner of the conservatee, adult child of the conservatee, parent(s) of the conservatee, sibling(s) of the conservatee, friend of the conservatee, and finally, the administrator for public conservatorship (government conservatorship).

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Note: If a spouse is appointed to be the conservatee’s general conservator or conservator of the estate, and the conservator subsequently files for divorce or legal separation from the conservatee, or the conservatee files for domestic violence restraining orders (DVRO) against the conservator, then the court’s will consider the appointment of a new conservator to avoid the obvious conflict of interest that arises between the conservator and conservatee from this circumstance.

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The order of preferred conservators is important, but whether or not the court approves a conservatorship depends largely on the recommendations made by the court’s investigator (See Court Investigation below).

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Also, more than one person may serve as a conservator. In fact, it is not uncommon for one or more persons to serve as conservator(s) of the person, and one of more different person(s) to serve as conservator(s) of the estate.

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Court Investigation

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After a conservatorship is filed in court, the judge will appoint an investigator who will contact the proposed conservator(s) and proposed conservatee. The court’s investigator will help the court understand the needs of the conservatee and the suitability of the proposed conservator. The investigator for the court in a guardianship cases is usually referred to as the court’s “730 evaluator” (See 730 Evaluations for more information).

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Additionally, the court’s investigator will explain, to both parties, the conservatorship process, the rights and responsibilities of both parties, including, but not limited to the following: the conservatee’s right to object to the conservatorship, the conservatee’s right and requirement to attend the conservatorship hearing (when possible), and the conservatee’s right to be represented by a private lawyer, or a court appointed lawyer if the conservatee cannot afford a private lawyer.

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After a conservatorship is established, the court’s investigator will maintain contact with the conservator and the conservatee in order to monitor and report to the court the progress and the continued suitability of the conservatorship.

 

Progress reports are at six months intervals until the court is satisfied with the long-term suitability of the conservatorship.

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Note: Before a judge appoints a conservator, the judge must be satisfied that establishing a conservatorship is the least restrictive means available to meet the needs of the conservatee without unduly infringing on the proposed conservatee’s right to manage his or her own well-being and/or finances.

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For example, a conservatorship might not be the least restrictive means available if the proposed conservatee already has a circle of trusted and willing supporters (family, friends, trust fund, etc.) to assist the conservatee in making rational decisions concerning personal finances and/or assist in essential health and safety requirements.

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How to File for Conservatorship

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Conservatorships are complex legal matters that require proper legal notices, mandatory legal forms, and strict reporting requirements. This is in addition to the preserving and presenting evidence and argument in court. It is highly recommended that a proposed conservator or conservatee enlist the services of a family law attorney experienced in handling conservatorships.

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Also, the required conservatorship forms do not offer information on how to complete the forms, write declarations in support of the conservatorship, conduct investigations, subpoena medical records, examine witnesses, follow court procedure and rules of court, or adhere to California evidence and probate law.

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Keep in mind that a judge is not lenient on the rules related to the presentation of evidence and legal procedure just because a non-lawyer (pro per) is not familiar with those legal requirements.

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Other Requirements: After filing and serving the proper conservatorship forms and notices, the proposed conservator must attend a training class for conservators, file an inventory and appraisal of the conservator’s assets, file a general plan for conservatorship, file a status of the finances and well-being of the conservatee, and, if land is owned by the conservatee, record the conservatorship with the county Recorder’s office.

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Termination of Conservatorship

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A conservatorship may be terminated in the following circumstances: The conservatee becomes able to handle his or her own well-being and/or finances, the conservatee’s assets are depleted (for conservatorships of the estate), the conservatee dies, the conservator dies, the conservator is removed, or the conservator resigns.

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For more information on conservatorship law, contact our family law attorneys today for a free and discreet consultation. Our attorneys are experienced in conservatorships and are available seven days a week to assist you and your family. We also offer other family law legal services, including DVRO, CPS Defense, Guardianship, Fathers’ Rights, Mediation, Child Custody, Support Issues (Spousal & Child Support), Ex Parte Hearings, Stepparent Adoptions, and more. Call today!

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909-307-2645

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