WHAT IS A CONSERVATORSHIP?

A conservatorship is a legal proceeding to obtain a guardianship over a person over the age of 18. Often, a probate conservatorship is advised when an older person is unable to make their own medical or financial decisions because they are injured, sick or not aging well. Adults who are developmentally disabled or the victims of a catastrophic illness or accident also may have a conservatorship as noted below.

 

In most cases, a family member or loved one obtains a probate conservatorship over an elderly adult who needs assistance. For a conservatorship to be ordered by the judge, the adult needing help is one who lacks capacity or consent to the conservatorship. In some instances, family members are incapable or unavailable to serve as conservators. In this instance, non-family conservators can be appointed, and the Steburg Law Firm can work with individuals and the courts to find a legitimate agency or individual to serve in a conservator capacity.

A conservatorship proceeding usually takes place in the county where the person resides.

Advantages of a Conservatorship 

While the court supervision makes a conservatorship more costly and time-consuming than other methods of management, it offers a higher degree of protection to the conservatee than other management mechanisms. The conservator must file an inventory that lists all the property of the conservatee and must file accountings with the court that reflect all transactions involving the conservatee’s assets. When a family is having trouble agreeing on what should be done, a conservator can be the neutral party whose only concern is the best interest of the individual. Another advantage to a conservatorship proceeding is that it provides a structured method to assist an incapacitated individual who may be reluctant to accept such assistance.

 

Disadvantages of a Conservatorship

Details of a conservatorship hearing become part of a public record, which is accessible by anyone. This loss of privacy can be hard for the individual conserved. The individual also loses independence and power to make his/her own decisions. Petitioning the court to make major changes can be a costly, time-consuming, and cumbersome process. Although it is possible to get an emergency temporary conservatorship, the process of establishing a permanent conservatorship can take six months.

HOW TO AVOID A CONSERVATORSHIP

In California, the judge only grants a conservatorship where there is no other least restrictive alternative available. A conservatorship can be avoided if the person already has valid estate planning documents in place like a revocable living trust, a durable power of attorney, or advance health care directive. If the estate planning documents exist and are valid, they can often be activated in lieu of a conservatorship. Steburg Law Firm can consult with you to see if a conservatorship is needed.

Conservator of the Person vs. Conservator of the Estate

A Conservator of the Person is appointed to make decisions about personal matters for the conservatee, including decisions about food, clothing, and residence.

A Conservator of the Estate is responsible for handling the financial affairs of the conservatee. The conservator has the power to collect the conservatee’s assets, pay bills, make investments, etc. However, the conservator must seek court supervision for major transactions, such as the purchase or sale of real property, borrowing money, and gifting of assets.

A conservatee can have different people as the conservator of person and estate or one person can serve in both functions. Some conservatees may have only a conservator of the person, or only a conservator of the estate.

How is a Conservatorship Established?

The Petition

The conservatorship process begins when someone proposes to the court that he or she should be appointed conservator over a proposed conservatee. This "proposal" is officially known as a petition for conservatorship.

  1. Who can petition for a conservatorship?
    • A relative, friend, public official, nonprofit agency, or professional conservator may petition the court to be appointed conservator of an individual.
    • To obtain a conservatorship, the proposed conservator must be bondable; that is, a surety agency must be willing to issue a bond ensuring that the conservator will faithfully execute his or her duties.
    • Generally, in order to obtain a bond, a conservator must be represented by an attorney.
  2. What does the petitioner need to do?
    • To obtain a conservatorship over the person, the petitioner must prove to the court by clear and convincing evidence that the proposed conservatee is "unable to provide properly for his or her personal physical needs, including: health, food, clothing, or shelter."
    • To obtain a conservatorship over the estate, a petitioner must prove to the court by clear and convincing evidence that the proposed conservatee is "substantially unable to manage his or her own financial resources or resist fraud or undue influence."
    • The petitioner must also list for the court all possible alternatives to the conservatorship and the reason or reasons each alternative is unsuitable or unavailable. Possible alternatives include: Voluntary acceptance of informal or formal assistance, a special or limited power of attorney, a general power of attorney, a durable power of attorney for finances, advance health care directive, estate management, and a trust.

The court investigator and the hearing

Once a petition is filed with the court, a court investigator is appointed to interview the proposed conservatee. The investigator reports his or her findings back to the court.

The court will set a hearing, where the judge determines whether or not the conservatorship is required and what types of special powers may be granted to the conservator. The conservatee has the right to a jury trial if he or she desires one.

What are the Duties of a Conservator?

If a conservator of the estate is appointed, the conservator must:

  • Obtain a bond as a guarantee that he or she will faithfully perform the required duties.
  • Manage the estate’s assets with the care of a prudent person dealing with someone else’s property, keeping estate assets in interest–bearing accounts and ensuring that the assets are separate from anyone else’s assets.
  • File an inventory of the conservatee’s property.
  • Determine that there is appropriate and adequate insurance covering the assets and risks of the estate.
  • Keep complete and accurate records of each financial transaction affecting the estate.

If a conservator of the person is appointed, the conservator must:

  • Obtain a bond as a guarantee that he or she will faithfully perform the required duties.
  • Assess the conservatee’s needs.
  • Decide where the conservatee is to live, choosing the "least restrictive," appropriate living situation that is safe and comfortable and allows the conservatee as much independence as possible.
  • Ensure that the conservatee’s health needs are met, if medical authority has been granted.
  • Work with the Conservator of the Estate, if there is one.

Are conservators paid for their services?

At least 90 days after being appointed, the conservator of the estate may petition the court for payment for the services of the conservator of the estate, conservator of the person, or both. The court will make an order allowing any compensation the court determines is just and reasonable, including compensation to attorneys of the conservator of estate, person, or both. Some courts may expressly limit the compensation allowed; for example, San Francisco courts require that the fees of conservators of the estate not exceed 1% of the fair market value of assets at the end of the accounting period. The compensation allowed will be charged to the estate.

If you are a conservatee (you have been conserved), you have the right to:

  • Ask a judge to change conservators or to end the conservatorship.
  • Vote, unless the judge says you’re unable to do so.
  • Marry.
  • Control personal spending money if a judge says you can have an allowance.
  • Make or change your will (unless the court grants this right to your conservator).
  • Make your own healthcare decisions, unless a judge gives that right to a conservator (a judge will only give this right when a doctor has certified that the conservatee does not have capacity to consent to his or her own medical treatment).
  • Exercise various personal rights including the right to receive visitors, telephone calls, and personal mail, unless specifically limited by court order. 
  • Be treated with understanding and respect.
  • Have your wishes considered.
  • Be well cared for.

If you oppose an action taken by a conservator. . .

  • Under Probate Code §1300, you can appeal what the court authorizes the conservator to do. For example, you can appeal an order authorizing the sale of property or an order fixing payment of the compensation or expenses of an attorney.
  • Under Probate Code §2622, you may file written objections to accountings filed by conservators, stating the items to which objection is made and the basis for the objection.

If you want to replace a conservator with a different conservator. . .

  • The ward or conservatee, the spouse of the ward or the spouse or domestic partner of the conservatee, any relative or friend of the ward or conservatee, or any interested person may apply by petition to the court to have the guardian or conservator removed. The petition shall state facts showing cause for removal.
  • If a conservator is removed, or if for any other reason a vacancy occurs in the office of conservator, the court may appoint a successor conservator.  The conservatee, the spouse or domestic partner of the conservatee, a relative of the conservatee, any interested state or local entity or public official, and any other interested person or friend of the conservatee may petition for appointment of successor conservator.

Conservatorship can be a  confusing and intimidating process, and professional help often adds clarity and peace of mind. Steburg Law Firm’s team of professional elder law attorney's can represent you regardless of your position in the process.  Allow our qualified professionals to help with the conservatorship process and guide you through a process which can otherwise be an overwhelming ordeal. Contact us today to see how we can help.

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