California is somewhat unique among the United States because it is one of the few to distinguish between guardianships and conservatorships. The procedures are similar, but guardianships apply only to minors and conservatorships apply to adults.
The basic idea of a conservatorship is that it allows someone the legal authority to make decisions for someone else. The idea of one person taking actions on behalf of someone else is not unique to conservatorships. Many people have heard of documents such as a Power of Attorney, in which someone authorizes someone else to act on his or her behalf.
A conservatorship is quite different, for two main reasons.
1) A conservatorship is always instituted through a court proceeding, and is supervised by the court until the conservatorship ends.
2) A conservatorship does not just authorize one person to act for another, it actually transfers the power from the conserved person to the person who gains the authority. A person under a conservatorship no longer has the right to make certain decisions. Once the authority is transferred by the court in this way, only the court can reverse it. This contrasts with something like a Power of Attorney, in which a person can grant and revoke authority any time, and never loses the ability to act for him or herself in the meantime.
Limited and General Conservatorships
There are several kinds of conservatorships in California. One kind comes about because someone is developmentally disabled, and simply has never developed the ability to function independently. In these cases, parents or other family members have typically been the lifelong caregivers of the person, but now the person is reaching the age of 18 when the parents will no longer have any legal authority. This is the ideal case for a conservatorship, because it extends what is basically parental authority into adulthood. In California this is called a “limited conservatorship”, although the powers granted to the parents (or other conservator) may actually not be limited in any meaningful way at all.
Another kind of conservatorship deals with people who have led normal lives, but then have later lost the capacity to continue to do so. These cases are most often the result of Alzheimer’s or another type of dementia, although they can occur for other reasons as well, such as a serious accident or other situations. When this happens, a family member usually needs to step in, in order to take control of care decisions and financial affairs. This is sometimes called a “general conservatorship”, and can include any level of authority up to and including the need to place the person in a facility that specializes in dementia care.
In all cases – in all kinds of conservatorships – the court will only grant the minimum amount of authority needed in order to properly care for the person concerned. Also, a conservator is required to file regular reports with the court in order to allow the court to make sure that proper care is always being provided.
Conservatorship of the Person and/or the Estate
No matter which type of conservatorship is appropriate (limited or general), the next decision is whether a conservatorship of the person or the estate is needed, or both. A conservatorship of the person is most common, because it deals with the need to allow someone to make daily living decisions and healthcare arrangements for an incapacitated or developmentally disabled person.
However, sometimes a person who needs help also has financial assets. This is most commonly the case with people who have accumulated assets during life and then have been afflicted with dementia. In these cases, conservatorship of the person is not enough, because that alone does not grant the power to manage the person’s money or property. In these cases, a conservatorship of the estate is also needed. This allows the conservator to take control of all of the person’s assets and property, and use those assets to provide care and maintenance.
In cases where a conservatorship of the estate is needed in addition to a conservatorship of the person, the conservator is also required to file regular financial reports with the court, detailing exactly how the assets are being used to care for the person. The format of the report is mandated by the probate code and local court rules.
Time and Expenses
When you really think about it, a conservatorship proceeding involves transferring certain civil rights from one person to another, and placing someone under the complete control of someone else. Because of this, there are strict formalities and safeguards that must be observed so that no one’s freedom is unnecessarily and unjustly taken away. Unfortunately, this also means that the process is more expensive than it otherwise would be.
To begin with, when a conservatorship proceeding is filed, the proposed conservatee automatically has a court-appointed attorney assigned, to independently represent him or her throughout the process. This is true even if the person can no longer effectively communicate. The court-appointed attorney is required to meet with the person and to communicate with everyone else involved before giving a report to the court. This assures that a neutral outsider is looking out for the person’s best interest, with no other motive.
The county regional center or a court investigator also interviews everyone involved and present a report to the judge as well. There are fees associated with all of these steps, as well as the filing fees payable to the court to begin the proceedings. However, some of these fees can be deferred or waived entirely. The exact amount of the fees also can change from time to time.
If you think that you may need to begin a conservatorship proceeding, then the attorneys at Lopez & Wilmert will be glad to sit down with you and discuss the details of your situation, including all anticipated fees and costs. There is never a charge for this discussion, and you will always know the fees and costs in advance before anything begins. Our firm handles conservatorships for anyone in San Diego county. The best way to begin is to contact us to schedule a consultation appointment.
In the majority of the conservatorship cases that are filed, the matter proceeds in a predictable and uncontested way. Medical declarations are obtained, investigations and made, reports are filed, and ultimately everyone appears at a hearing where the judge grants the conservatorship.
However, sometimes people object. Often this happens when family members disagree on who should be the conservator, of if they disagree on whether a conservatorship is even necessary. Often, the need for a conservatorship can be completely avoid if the person has done proper estate planning in advance, before being diagnosed with dementia. However, even if there is an estate plan which names a particular family member to be in charge, sometimes the plan can be challenged in court.
In these cases, the conservatorship becomes contested and proceeds in quite a different manner, somewhat similar to civil litigation. Lopez & Wilmert has represented parties in many contested conservatorship cases, so if you believe that you are facing a situation like this, please feel free to contact us to discuss what has happened so far, so that together we can determine whether we are a good fit to help you. Again, there is never a charge for the initial discussion, and you will know what you are getting into before we begin.