- Carol Highfill
California Probate Code Conservatorship
Updated: Nov 29, 2021
In the United States, when an individual requires the appointment of a guardian or protector, the law classifies the process as a conservatorship. There are many reasons a guardian may need to be appointed for a person, including but not limited to, the individual is an elderly person, the individual does not have the mental capacity to be used nor to give instructions to the lawyer, and / or the individual is a child that has not adult representative. The person appointed to take care of the distressed individual is called the conservator, and the person who is not able to care for themselves is called the conservatee. In California, conservator’s can be classified into two main types; (1) those who take care of the conservatee because a judge from a court of competent jurisdiction has decided that the conservatee needs assistance AND (2) those who handle the conservatee’s estate matters because they cannot do it themselves.
Who Can be Appointed as a Conservator?
Any interested person of friend of the conservatee is able to file for conservatorship. This includes, but is not limited to; a spouse, parent, sibling, other relative and / or a state or local government agency. However, it is important to note that the courts give preference to certain people. These include, in order: the spouse, and adult child, the parent, a sibling (or sibling(s)), and a public guardian.
Making Estate Planning Decisions for the Conservatee
If you are the conservator of the estate of the conservatee, although you will have control of their finances, the conservatee will have the ability to make a will. The reason for this is because the law recognizes the ability to make a will as slightly different from the ability to make other daily life decisions. There are ethical and philosophical reasons behind this.
If you, as the conservator, would like to make the will, you must abide by the provisions of Section 2580 of the Probate Code. Specifically, this section states that the conservator can use a ‘Substituted Judgement’ to make a will, trust, or both on behalf of the conservatee. The provision further goes onto delineate the two circumstances where a conservator will be allowed to make the will. These are: (1) if the conservatee is too sick to make the will OR (2) the conservatorship was established because someone was taking advantage of the conservatee by, for example, putting undue pressure on him or her. Overall, a family member or any other interested person has the ability to present a petition to the Court asking for a Substituted Judgement (as long as one of the two criteria mentioned above are met).
Overall, a conservator has certain rights in regard to taking care of a conservatee. This is true when it comes to general duties, financial needs, and even in estate. In California, conservator’s can be classified into two main types; (1) those who take care of the conservatee because the court decided that the conservatee needs help AND (2) those who handle the conservatee’s estate matters because they cannot do it themselves. In conclusion, the process will depend on an individual’s personal circumstances, and it can become highly complex. Therefore, it is important that you hire a competent and skilled lawyer to handle these matters.