Understanding Conservatorships in California: Protecting Your Loved Ones and Their Assets

What is a Conservatorship?

According to the Judicial Branch of California, a conservatorship is when a judge appoints a person to make decisions and manage affairs for an individual who is incapable of providing or managing for themselves. The person who is appointed is called the conservator, and the person who needs help is called the conservatee.

How is Conservatorship Different From Guardianship?

While both conservatorships and guardianships involve an appointed person to manage the life of another, they are quite different concepts. 

Guardianship:

• Pertains to the court-ordered decision to grant an individual the duty of representing and managing a minor child’s home.
• Becomes necessary when death, inability, incapacitation, or other serious circumstances hinder parents from caring for a minor child.
• Allows a guardian to make legal decisions for the child until he or she reaches 18 years of age and can care for and make legal decisions for themselves.

Conservatorship:

• Refers to the court-ordered appointment of a qualified adult to care for the needs of an incapacitated adult, either financial, health and personal care, or both.
• The conservator’s responsibility may encompass food, clothing, and shelter for the conservatee since he or she is unable to make these decisions for himself or herself.
• It may involve the conservator making medical decisions for the conservatee.

Who Can Be a Conservator?

A court will generally appoint a trusted family member or other close friend to act as the conservator for an incapacitated or disabled adult. Probate code dictates that a conservator be appointed based on spousal priority, followed by adult children, parents, siblings, and other interested parties. If there are no family or friends who are willing to fill this role, then a private professional conservator or other public guardian may be appointed. 

What are the Types of Conservatorships?

The State of California recognizes three types of conservatorship proceedings:

• General Conservatorship:
  • Meant to assist in cases of a person who exhibits significant decline in physical and mental ability due to old age.
  • Is appropriate for incapacitated individuals who are exposed to unscrupulous intent and undue influence from others or whose incapacitation subjects them to financial elder abuse.

• Limited Conservatorship:
  • Applies to a conservatee who has developmental disabilities such as autism, epilepsy, cerebral palsy, Down Syndrome, and other similar conditions.
  • Applies to any form of intellectual disability or mental incapacity that began before the conservatee’s 18th birthday.

• Lanterman-Petris-Short (LPS) Conservatorship:
  • Also known as the mental health conservatorship, LPS grants the conservator the right to oversee the cognitive treatment of an individual suffering from a severe mental illness that poses a threat to his or her own life or the lives of others.
  • The conservatee’s condition requires round-the-clock mental treatment and a specialized living arrangement.
  • Must be initiated by a government agency, such as the District Attorney’s Office.

Who Can Initiate a Conservatorship?

A conservatorship must be initiated by any of the following individuals:

• The proposed conservator
• The proposed conservatee
• The spouse, domestic partner, relative, or friend of the proposed conservatee
• Another interested party
• An interested state or local agency, employee of the agency, or public officer

What are the Steps for Filing a Conservatorship?

To petition the courts for a conservatorship, the following steps must be taken:

• File a petition for conservatorship with the court: The petition should include information about the proposed conservator, including a potential conservatee, relatives, and the petitioner. The petition should also include the reasons for the conservatorship and why it should be granted, as well as why possible alternatives are not available.
• File a confidential supplemental information form: This form will include the details as to why the proposed conservatee is unable to care for their own personal and financial well-being.
• File a Duties of Conservator Form: This form will outline the duties that the proposed conservator will perform for the proposed conservatee, including taking care of the conservatee, keeping records and accountancy of finances, providing information to the court, and more. 
• Serve notice to the conservatee: A citation and a copy of the petition will be delivered to the conservatee to notify them of intent. The citation cannot be delivered by any party of the conservatorship.
• Provide notice to the conservatee’s relatives: A copy of the petition and a written notice about the court hearing regarding the conservatorship must be mailed to the conservatee’s spouse or domestic partner and close relatives. These records must be delivered by someone other than the petitioner.
• Obtain a bond: This bond protects the conservator’s assets. A claim can be made against the bond if the conservator engages in theft, fraud, misrepresentation, or improper handling of assets. The bond will be determined by a judge and based on the conservator’s financials or estate.

Why Would a Conservatorship be Denied?

A conservatorship should only be implemented if all other options have been exhausted and may be denied if the proposed conservatee:

• Is able to participate in meeting his or her basic needs
• Has already signed, or is able to sign a Power of Attorney to appoint someone to help with financial and health decisions
• Has a spouse who can manage care and assets for them

What are Alternatives to a Conservatorship?

Financial decisions can be made through:

• A Power of Attorney
• Substitute payee for some benefits, such as social security or veterans’ benefits
• Living trusts
• Joint title on bank accounts or other properties

Personal and medical care decisions can be made through:

• An Advanced Health Care Directive
• Informal care arrangements
• Restraining orders for protection against harassment

Do I Need an Attorney?

A compassionate attorney will help you focus on your loved one’s best interests during this challenging time. Call Patricia Scott Law today at 510-263-8808 or fill out a contact form for a free consultation.