If one of your adult loved ones is unable to care for themselves and their personal or financial well being is in jeopardy then a conservatorship may be an option; especially if that loved one has not undertaken other estate planning to plan for such a situation. The conservatorship is a fairly detailed and court supervised process that authorizes one person to oversee the personal and financial affairs of another in the event they are unable to do so for themselves.
- Conservator – Is the person or persons whom the court authorizes to make decisions on behalf of another.
- Conservatee – Is the person whom the court has determined is unable to care for them self and placed under the supervision of the Conservator.
California law authorizes two types of conservatorships that may be taken out either singularly or jointly depending on the circumstances.
- Conservatorship of the Person – A conservatorship of the person may be established for a person who is unable to provide for his or her own health, food, clothing and shelter. Once established it allows the conservator to make decisions regarding the conservatee’s living arrangements, meals, health care, personal care and general well being.
- Conservatorship of the Estate – A conservatorship of the estate may be established for a person who is unable to manage his or her own finances and/or be unable to resist fraud or undue influence from those who wish to cause harm. Once established it allows the conservator to oversee all aspects of the persons financial affairs, protect their finances and property and pay bills.
The conservatorship may be temporary and is used for immediate concerns pending appointment of a permanent conservator and generally lasts no longer than 60 days. The conservatorship may also be limited and is generally sought when the person has a developmental disability and is able to provide for some but not all of their personal or financial needs. In this case the goal and duty of the conservator is to assist the person in developing self reliance and independence. The person who is appointed conservator is an important selection and greatly increases the chance for a successful conservatorship.
As part of any fundamental estate plan you should sign a Nomination of Conservator indicating who you would desire the court to appoint in the event it becomes necessary. If you have not nominated a person of your choosing or the court finds that the person you selected is not in your best interests then the court will look to the following persons to be appointed:
- Your spouse or domestic partner or any person nominated by your spouse or domestic partner
- Your adult child or any person nominated by your adult child
- Your parent or any person nominated by your parent
- Your brother or sister or any person nominated by your brother or sister
- Any other person or entity qualified to act under the law
If the court determines that the conservatorship is in the best interest of the conservatee then the court will issue an order appointing the conservator. Once the private conservator signs a prepared statement of duties and liabilities and posts a bond as security if the court so orders then the court will issue letters of conservatorship. The letters are important as they are evidence of authority to act on behalf of the conservatee and may often have to be given to third parties in dealings with them.
After appointment, the conservator will continue with the court proceedings filing periodic reports and accountings as required by law. While the appointment of a conservator reduces decision making by the conservatee it is important to note that the conservatee retains many rights and California law requires that the conservator or their attorney to mail a notice of conservtee’s rights to a list of interested persons. Generally, unless limited by the court the conservatee retains the right among others to:
- Be represented by a lawyer
- Request the court to replace the conservator
- Request the court to terminate the conservatorship
- Make or change their will
- Receive and control their salary
- Control a spending allowance paid to the conservatee via court authorization
- Receive mail
- Marry or enter into a registered domestic partnership
While the conservatorship can be a beneficial process in the right circumstances it is both costly and exacting upon all parties involved. Having a thorough estate plan in place is the best option to reduce or eliminate any potential need for a conservatorship.