Conservatorship in California
Table of Contents
2. Is Guardianship Different From Conservatorship in California?
- Definition of Guardianship
- Definition of Conservatorship
3. What Are The Types of Conservatorship Proceedings?
- General Conservatorship
- Limited Conservatorship
- LPS Conservatorship
4. How To Obtain Conservatorship in California
5. Who Can File For Conservatorship?
6. How Long Does It Take Before You Go To Court?
7. When Is Conservatorship Necessary?
8. How Do You Avoid Conservatorship?
9. What Are Alternatives To Conservatorship?
10. Are There Other Alternatives To Conservatorship?
11. Is Temporary Conservatorship Possible?
12. When Does Conservatorship End?
13. Pros And Cons Of Conservatorship In California
Conservatorship in California
When an individual is suffering from serious physical or mental impairment, recuperating from a severe accident, or undergoing rapid physical and mental decline as a result of aging, they may appoint someone to help them manage their day-to-day finances and to manage their health decisions.
If the person has done estate planning, such planning will often include a durable power of attorney for finances, and an Advance Health Care Directive, which is sometimes called a Medical Power of Attorney.
If the person has not done estate planning, someone needs to be appointed to make financial and health care decisions for that person. That is where the Court comes in.
What is Conservatorship?
A Conservatorship is a legal proceeding where a Court designates a responsible and qualified adult (called the Conservator) to oversee the personal and financial affairs of a physically or mentally incapacitated person (called the Conservatee) and to make decisions on their behalf.
In addition, the Conservator’s range of duties may cover helping with the Conservatee’s elderly nursing care and living arrangements.
Is Guardianship Different From Conservatorship In California?
While both cases are legal tools that uphold the legal, physical, and financial protection of an individual’s well-being, Conservatorship must not be confused with guardianship. Conservatorship in California is different from guardianship (or adult guardianship in other states) in the following respects:
Definition of Guardianship
- Pertains to the Court-mandated decision to grant a trustworthy and qualified individual the responsibility to represent and manage a minor child’s (18 years and under) home.
- Guardianship is necessary due to the death of or inability of the child’s parents to provide care for the minor child, the parent’s mental incapacity which makes it impossible for the parent to care for the minor child, or other serious circumstances.
- Legal guardianship allows a guardian to make decisions for the child until they reach legal age to care and make decisions for themselves, which is 18 years old in California.
Definition of Conservatorship
- Conservatorship refers to the Court-mandated designation of a trustworthy and qualified adult to care for another incapacitated adult due to old age, accident, injury or any other similar set of circumstances which results in the incapacitated adult’s inability to manage his or her day-to-day affairs.
- Since the Conservatee is unable to care and make decisions for themselves, the Conservator’s responsibility encompasses food, clothing, and shelter for the Conservatee.
- If the Conservator is granted conservatorship of the person of the Conservatee, such conservatorship involves the authority to make medical decisions for the Conservatee.
What Are The Types of Conservatorship Proceedings in California?
In California, Conservatorship consists of three different proceedings:
- This type of Conservatorship is meant to help in the cases of a person who, due to old age, is exhibiting significant decline in physical and mental ability.
- A general Conservatorship is also appropriate for a person whose incapacity leaves them exposed to unscrupulous intent and undue influence from other people, or puts them in a position of possibly being subject to financial elder abuse.
- This Conservatorship is applicable to a Conservatee who has developmental disabilities such as epilepsy, autism, cerebral palsy, Down Syndrome, and the like.
- This Conservatorship also applies to any form of intellectual disability (also known as mental retardation) or any mental incapacity that began prior to the Conservatee’s 18th birthday.
- Although also known as mental health Conservatorship, the legal term in California is LPS Conservatorship. LPS Conservatorship is named after California Assemblyman Frank Lanterman and California Senators Nicholas Petris and Alan Short.
- This type of Conservatorship grants the Conservator the responsibility to oversee the mental treatment of a Conservatee who suffers from a severe mental illness.
- In an LPS Conservatorship, the Conservatee’s mental condition poses a threat to his or her own life or of others.
- The LPS Conservatee’s condition requires specialized living arrangements and round-the-clock mental treatment.
- An LPS Conservatorships must be initiated by a government agency, such as the District Attorney’s Office.
Each type of Conservatorship should be extensively reviewed with the help of an elder law attorney or a Conservatorship attorney to ensure that proper steps are taken by the concerned party.
How To Apply For Conservatorship In California
The steps for seeking Conservatorship in California can appear complex. The potential or nominated Conservator must be willing to spend a substantial amount of time and energy to the process.
Generally, the steps to seeking either a permanent or temporary conservatorship are:
- Filing of Petition For Conservatorship;
- Filing of a Confidential Supplemental Form (detailed reason why proposed Conservatee needs the Conservator’s care);
- Filing of a Confidential Conservatorship Screening Form (potential Conservator’s information and background check);
- Filing of Duties of Conservator Form (list of Conservator’s responsibilities in caring for the proposed Conservatee);
- Serve Notice on the Conservatee (proposed Conservatee is to be informed and receive notice of the Court proceeding);
- Notice to Conservatee’s Family (the proposed Conservatee’s family to be informed); and,
- Obtain a bond (a bond for the protection of the proposed Conservatee’s property and assets).
Who Can File For Conservatorship?
A Conservator can be a member of the Conservatee’s family, a friend, or a qualified professional, depending on who the Court sees as the best fit to carry out the interest of the Conservatee.
In selecting a Conservator, the Court will hear if the Conservatee is mentally fit to nominate someone. The Court will then designate that person, except in obvious cases when the Conservatee’s welfare cannot possibly be upheld by the nominated Conservator.
In cases wherein the Conservatee is mentally unfit to nominate anyone, the Court follows a list of potential preferences, assuming that they are qualified to act as Conservator.
The order of preference is as follows:
- Spouse or domestic partner;
- Adult child;
- Public Guardian; and,
- Anyone the Court finds wholly capable
This order will be followed except in cases of refusal, in which the proposed Conservator nominee can choose someone else immediately down the list.
Regardless of the order of preference, the Judge will decide who best demonstrates the ability to protect the best interests of the Conservatee.
How Long Does It Take Before You Go to Court?
Generally, the date of the first hearing is set 45 days after the date the petition for conservatorship is filed. If shown a valid reason, the Court may grant an additional 30 days for the proposed Conservator to file any necessary accounting documents.
When Is Conservatorship Necessary?
Although Conservatorship is a legal relationship established by the Court t to protect the Conservatee’s well-being, it should only be considered in the absence of other more reasonable, practical, and sensitive alternatives. For example, if the proposed Conservatee has prepared a durable power of attorney for finances and an Advance Health Care Directive, a conservatorship likely will not be needed.
How Do You Avoid Conservatorship
Again, Conservatorship should be treated as a last resort. The best way for loved ones to avoid going through this intricate and possibly divisive process is prior estate planning.
A Conservatorship can be avoided. At an appropriate time, an older loved one should have a discussion of future possibilities, and who would manage the senior’s health care and finances if the senior is not able to manage those things himself or herself. This way, the specifics, including power of attorney and potential Conservators, can be selected in advance, before a health emergency or crisis occurs.
What Are Alternatives To Conservatorship?
Are there any alternatives to Conservatorship? Yes. Ideally, a Conservatorship case should only occur if it is the sole remaining solution to address the person’s needs, and all other courses of action have been exhausted. If it appears that an alternative solution can be worked out, the Court might refuse to grant the Conservatorship petition.
A Conservatorship should be ruled out if the proposed Conservatee:
- Is able to participate in determining how to meet his or her basic needs.
- Is able to sign a power of attorney to nominate someone who can help with decisions concerning finances and health care matters.
- Is married or in a domestic partnership relationship in which the spouse or domestic partner can manage financial transactions on the behalf of the proposed Conservatee.
Are There Other Alternatives To Conservatorship?
Yes! Financial decisions can be made through:
- A valid Power of Attorney
- Substitute payee for certain benefits (such as social security or veterans’ benefits)
- Living trusts
- Joint title on bank accounts or other properties
Decisions on personal and medical care can be addressed by the following methods:
- An Advance Health Care Directive
- Informal care arrangements
- Restraining orders for protection against harassment
Is Temporary Conservatorship Possible?
Temporary Conservatorship is possible under the following circumstances:
- When the Conservatee’s condition or a care situation requires immediate attention and cannot wait for the Court to designate the general Conservator.
- The need for a temporary Conservator arises during the transition gap (immediately after removal of previous Conservator and before the appointment of a new one).
Regardless of whether the Conservatorship is for the Conservatee’s physical or mental state, or for his or her finances, the Court will designate the beginning and ending dates of temporary Conservatorships.
When the proposed Conservator seeks a general conservatorship at the same time as a temporary conservatorship, for example, the temporary conservatorship will end when the Court grants the general conservatorship.
When Does Conservatorship End?
The appointed Conservator must carry out his or her duties until the Court orders an end to the Conservatorship, which occurs upon:
- The death of the Conservatee
- The Conservatee no longer requiring care
Pros and Cons of Conservatorships in California
In the event that Conservatorship represents the only possible way to administer care to a person in need, a knowledgeable law firm that specializes in elder law and Conservatorships can help you and your loved ones. Conservatorship had advantages, but it also has disadvantages:
- Court-mandated care for the Conservatee;
- Protection of his or her assets;
- Periodic reports on the Conservatee to the Court; and,
- Peace of mind.
- Court complexities;
- Frequent hearings;
It must be remembered that the aforementioned pros and cons of Conservatorship in California constitute only the surface of the process.
- All proceedings and documents filed with the Court are a matter of public record; and,
- Nearly all major decisions must be authorized by a Judge.
- because potential challenges will depend on the extent of surrounding factors.
California Conservatorship Lawyers Can Help
Crider Law Group focuses on helping you and your loved ones protect yourself and your loved ones throughout the aging process.
With experience and compassionate insight into the challenges and concerns that families face during this difficult time, our California Conservatorship lawyers can help navigate this process.
Call us today at (916) 975-7560 so we can help you protect yourself and your loved ones.