- Carol Highfill
Conservatorship in California
What is Conservatorship?
Sometimes due to some problems, an adult person is unable to manage himself or his property and there are chances of loss of life or the property. In such a situation, the law in California provides a legal arrangement for the care of the person or managing his property called conservatorship. The law on conservatorship in California is provided in the Probate Code beginning at section 1800. A California conservatorship is formally established by an order of the judge, who appoints one or more adult person(s) as conservator(s) to care for another adult (the “conservatee”).
Who generally becomes a conservator?
Though a court can any suitable person as a conservator, the law prefers a family member of the individual for appointment as a conservator. However, if a suitable family member is not available or unable to act as a conservator, the court can appoint non-relatives, professional conservators, government agencies, and nonprofit corporations.
Purpose of Conservatorship
The purpose of Conservatorships is to protect those adults who do not have the capacity or ability to care for themselves or their properties.
Types of Conservatorship
Under the law in Californian, there are two types of conservatorships; general conservatorship and limited conservatorship
1. General Conservatorship:
A general conservatorship applies to all incapacitated persons who are not developmentally disabled. General Conservatorship consists of two parts – a Conservatorship of the Person, and a Conservatorship of the Estate. When a Conservatorship is filed for an elder, typically both types are necessary and can be filed with the court at the same time. The conservatorship of the estate allows a conservator to manage the conservatee’s financial affairs, such as payment of bills or collection of income on behalf of the conservatee.
Conservatorships of the person on the other hand, allows a conservator to manage the conservatee’s health and personal care, such as ensuring that the conservatee has proper food and housing. Further, he makes medical decisions for the conservatee whenever needed.
2. Limited Conservatorships
The limited conservatorship means a conservatorship which is either for the person or for the estate. This is most often applied for adults with developmental disabilities. However, it can also apply in cases of adults who are too old to manage themselves or their property.
How to Obtain Conservatorship in California?
In order to obtain a conservatorship order, the law in the California Probate Codes provides the following procedures:
Who can start the conservatorship process?
Anyone of the following persons can start the process for obtaining a conservatorship order:
A proposed conservator;
the spouse or domestic partner;
a relative or friend of the proposed conservatee;
an interested person or interested state or local agency;
or a public officer.
What are the steps for obtaining a Conservatorship?
The conservatorship process starts by filing a compulsory application before the court. The petition must include information about the proposed conservator, potential conservatee, his relatives, and the petitioner (person filing the case in court). It must also include reasons and justification for the appointment of a conservator. Further, It must explain why the possible alternatives are not available in a particular case.
2. Inform the Conservatee
The person, other than the conservatee himself, must inform the potential conservatee of the proposed conservatorship by delivering a citation and a copy of the petition to him. A citation is a court form that provides information about the proposed conservatorship to the conservatee.
3. Inform the Conservatee’s Relatives:
In addition to the conservatee, the applicant must inform the conservatee’s spouse/domestic partner and close relatives about the court hearing, along with a copy of the petition. The service of notice to the conservatee and his relatives must be effected by a neutral person.
4. An investigation by Court Investigator:
Once the petition is filed, the court will require an investigation by a neutral court investigator to obtain information about the conservatorship and how it would benefit the proposed conservatee.
5. Hearing and Order
The court will set a date for a hearing where a judge will ensure communication of notice to all parties. The judge will also determine the need for the appointment of a lawyer to represent the proposed conservatee. The proposed conservatee must be present at the hearing unless he is excused due to illness. If the judge feels ready to make a decision, he will either grant or deny the conservatorship. If granted, the court will file an order to appoint the conservator and will issue Letters of Conservatorship. The Letters of Conservatorship are documents detailing the identity of the conservator and the conservatee that can be used by the conservator to show legal authority when he makes a decision on behalf of the conservatee.
What documents must you prepare for the judge prior to the first conservatorship hearing?
Prior to the first hearing, the applicant must prepare the Letters of Conservatorship, Draft Order, and the Confidential Conservator Screening Form. If the petitioner is not the proposed conservator, then the petitioner must obtain a consent form from the proposed conservator. The judge, in case of the decision to grant the conservatorship shall sign these documents.
Requirements in case of a professional fiduciary as a conservator
If the conservator is a professional fiduciary, the applicant must obtain his fee declaration for the first hearing. This declaration must clearly state how much the professional conservator plans to bill for his services as a conservator.
Termination or Modification of a Conservatorship and Removal of Conservator
A conservatorship usually ends upon the conservatee’s death. It can also terminate sooner if the conservatee regains capacity. A Conservatorship of the Estate may terminate prior to the conservatee’s death if the conservatee’s assets are gone. A court can remove a conservator if the conservator is not performing the required duties.
Resignation by the Conservator
A conservator can resign if he so wishes. However, he will remain conservator and continue performing his duties until all obligations to the court (requisite paperwork, final accountings, etc.) are all met.
For responsibilities of a conservator and rights of conservatee details see: Handbook for conservator https://www.courts.ca.gov/documents/handbook.pdf