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.
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.
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.
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.
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.
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:
If a conservator of the person is appointed, the conservator must:
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:
If you oppose an action taken by a conservator. . .
If you want to replace a conservator with a different 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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