What is a Conservatorship?
A court creates a conservatorship by the appointment of a conservator. A conservator is a person or entity appointed by a court to manage the property, daily affairs, and financial affairs of another person, usually someone who is incompetent by reason of a physical or mental infirmity or age (i.e., the court may appoint an adult daughter as the conservator for her father who is suffering from advanced Alzheimer’s disease). A court holds an open hearing before making the appointment. The court requires the conservator to make regular accountings which the court must approve. By order, the court may remove the conservator if no longer needed, upon the petition of the conservatee or relatives, or for failure to perform his/her duties.
Once a court has authority over a conservatorship that jurisdiction continues until it is terminated by the court. If the ward moves to another state, the conservatorship is not automatically terminated. However, it is often recommended when a ward moves to another state that a guardianship or conservatorship be established in the other state to ensure that the guardian’s or conservator’s authority will be recognized by the other state.
What type of conservatorship do i need?
There are three different types of Conservatorships one may petition for with the courts. These are General, Limited, and Lanterman-Petris-Short Conservatorships and explained below.
A general conservatorship applies to all incapacitated persons who are not developmentally disabled. For example, this type of conservatorship would be available to assist an elderly person with Alzheimer’s.
If the proposed conservatee were developmentally disabled, a limited conservatorship would apply. A limited conservatorship gives the conservator only certain specified powers and allows the conservatee to retain rights that he/she is able to exercise. In this kind of conservatorship, the regional center will receive notice of the petition and will file an advisory report with the court on the appropriateness of the conservatorship.
If the proposed conservatee is a person who is gravely disable due to a mental disorder or chronic alcoholism, a Lanterman-Petris-Short Conservatorship would apply. This kind of conservatorship is commonly referred to as an LPS conservatorship. Usually, an LPS conservatorship may only be initiated for patients in a mental health facility on the recommendation of the facility’s staff.
Conservator of the person
A conservatorship of the person for someone whose health is at risk because they cannot provide for his/her own food, shelter, and other basic needs. The benefits of this conservatorship are:
- It provides a way for you to assist a loved one whose health is at risk but who refuses help; and,
- The conservator can obtain medical information and communicate with health care providers to make sure your loved one receives the best medical care. This is particularly helpful if your loved one is in a nursing home or assisted living home or needs continuous monitoring of a serious health condition.
The conservator has the legal authority to make basic personal and health-care decisions for the protected person. The conservator must act responsibly and file regular reports with the court.
When the court chooses you as the conservator of a person, this means you:
- Arrange for the conservatee’s care and protection;
- Decide where the conservatee will live; and
Are in charge of:
- health care,
- clothes, personal care,
- housekeeping, transportation, and recreation.
** NOTE** You do not automatically become the Conservator of the Estate when you become Conservator of the Person.
Conservator of the estate
A conservator of the estate manages the conservatee’s financial matters, such as paying bills and collecting a person’s income, if the court decides the conservatee cannot do it.
If you want to become conservator of the estate, you must petition the court for that. You can do so at the same time as you file your petition for conservatorship of the person, or you can file a separate petition later.
I am here to help you
You must be sure that establishing a conservatorship is the only way to meet the person’s needs. If there is another way, an alternative to the conservatorship, the court may not grant your petition.
You may not need a conservatorship if the person who needs help:
- Can cooperate with a plan to meet his or her basic needs.
- Has the capacity and willingness to sign a power of attorney naming someone to help with his or her finances or health-care decisions.
- Has only social security or welfare income every month and the Social Security Administration can appoint you Representative Payee. The Representative Payee is the person the beneficiary allows to receive social security checks in his or her name on behalf of the beneficiary.
- Is married or is in a domestic partnership and the spouse or partner can handle financial transactions. The property must be community property or in joint accounts.
If the person needing a Conservatorship did not draft any of the following documents prior to his/her incapacity, then a Conservatorship of the Person may be needed:
- Advance health care directive
- Court authorization for medical treatment
- Informal personal care arrangements
- Restraining orders to protect against harassment
If the person needing a Conservatorship did not draft any of the following documents prior to his/her incapacity, then a Conservatorship of the Estate may be needed:
- Power of attorney
- A substitute payee for public benefits (like veterans’ benefits or social security benefits)
- Informal arrangements
- Joint title on bank accounts or other property
- Living trusts (also called “inter vivos” trusts)
If you need assistance with a Conservatorship, then please contact my office at (831) 586-5856 and arrange for a consultation. I can assist you through this complex process.