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Conservatorships
A conservatorship is a legal relationship, established in court, between a responsible adult, called a conservator, who is legally responsible for the care and management of another adult’s well-being or finances, or both, because the latter adult, called a conservatee, is incapable of caring for his or her own well-being and/or finances due to physical or mental incapacity.
Types of Conservatorships
General conservatorship: A general conservatorship may be established for an adult who is incapable of caring for himself or herself, or his or her finances, or both, due to advanced age, Alzheimer’s, dementia, stroke, Multiple Sclerosis (MS), obesity, arthritis, catastrophic injury, etc.
Note: If the proposed conservatee is developmentally disabled, a limited conservatorship is available (See limited conservatorship below).
Conservator of the person: A conservator of the person may be established for an adult who is incapable of caring for his or her own well-being due to advanced age, Alzheimer’s, dementia, stroke, MS, obesity, arthritis, catastrophic injury, etc. With some limitations, a conservator of the person is responsible for ensuring that the conservatee has proper clothing, shelter, food, health care, living arrangements, and protection.
Note: A conservator of the person may not do any of the following without special court permission: commit the conservatee to a long-term health care facility, sell the conservatee’s home, move the conservatee, allow the conservatee to use experimental medications, allow the conservatee to undergo major life altering elective surgery, or draft a conservatee's will.
Conservator of the estate: A conservator of the estate may be established for an adult who is incapable of managing his or her own finances, including the conservatee’s assets, income, inheritance, debts, and property, due to a physical or mental disability. A conservator of the estate is not permitted to use the conservatee’s personal assets for the conservator’s personal use without court permission. Likewise, a conservator of the estate is not ordinarily personally liable for the conservatee’s debt.
Note: When a conservatorship of the estate is established, the court will require the conservator to post a bond equal to the liquid assets of the conservatee. The bond is required to protect the conservatee in the event that the conservator negligently or fraudulently mismanages the conservatee’s finances to the conservatee’s detriment.
A conservatorship of the person and a conservatorship of the estate are treated independent of one another. While most conservators are appointed to serve as both the conservator of the person as well as the conservator of the estate, appointment to serve as both types of conservators is neither required, nor permitted, without court approval.
Limited conservatorship: A limited conservatorship may be established when the conservatee is capable to care for himself or herself and/or capable of managing his or her own finances, but the conservatee’s ability to do so is limited due to a mental or physical developmental disability that started before the conservatee was eighteen (18). Limited conservators may be appointment to serve as the conservator of the person or as the conservator of the estate, or both, with court approval.
Note: For limited conservatorships the Letters of Limited Conservatorship (court orders) list the exact rights and responsibilities of the conservator. The conservatee keeps all remaining rights and responsibilities not covered in the Letters of Limited Conservatorship. The reason for this is that many developmentally disabled adults can, and want, to do things on their own, and the court will not interfere with a developmentally disabled adult’s right to care for himself or herself so long as the conservatee is capable. Also, in limited conservatorships, the court imposes a duty on the conservator to assist the conservatee in becoming self-reliant and independent.
Lanterman-Petris-Short (LPS) conservatorship: An LPS conservatorship is available in some cases for adults who require extremely controlled living arrangements (i.e. non-consensual lockdown facilities) and require extensive mental health care due to severe mental illness. LPS conservatorships must be started by a government agency.
Temporary conservatorship: A temporary conservatorship is virtually the same as a general conservatorship but where the conservator is appointed only for a temporary period. The purpose of appointing a temporary conservator is to meet the conservatee’s immediate needs until a regular conservatorship can be established. A temporary conservatorship may be established on an emergency basis (ex parte hearing). A temporary conservatorship may be of the person, of the estate, or both, with court permission. Without court permission, a temporary conservator cannot move the conservatee from his or her home or sell or gift away a conservatee’s estate asset(s).
Who may be appointed as a conservator
Most conservatorships are established by close family members of the proposed conservatee. However, any adult may serve as a conservator with court approval. When there are competing proposed conservators the court has an order of preferred conservators. The order of preferred conservators is as follows: Spouse or domestic partner, adult child, parent, sibling, friend, public guardian.
The order of prefered conservators is important, but whether or not the court approves a conservatorship depends largely on the recommendations made by the court’s investigator.
Court Investigation
After a conservatorship is started the judge will appoint an investigator who will contact the proposed conservator(s) and proposed conservatee. The court’s investigator will help the court understand the needs of the conservatee and the suitability of the proposed conservator.
Additionally, the court’s investigator will explain, to both parties, the conservatorship process, the rights and responsibilities of both parties, including, but not limited to the following: the conservatee’s right to object to the conservatorship, the conservatee’s right and requirement to attend the conservatorship hearing (when possible), and the conservatee’s right to be represented by a private lawyer, or a court appointed lawyer if the conservatee cannot afford a private lawyer.
After a conservatorship is established the court’s investigator will maintain contact with the conservator and the conservatee to monitor, and to report the progress and suitability of the conservatorship. Progress reports are at six months intervals until the court is satisfied with the long-term suitability of the conservatorship.
Note: Before a judge appoints a conservator the judge must be satisfied that establishing a conservatorship is the least restrictive means available to meet the needs of the conservatee without unduly infringing on the proposed conservatee’s right to manage his or her own well-being and/or finances. For example, a conservatorship might not be the least restrictive means available if the proposed conservatee already has a circle of trusted and willing supporters (family, friends, etc.) to assist the conservatee in making rational decisions concerning personal finances and/or assist in essential health and safety requirements.
How to file for conservatorship
Conservatorships are complex legal matters that require proper legal notices, forms, and strict reporting requirements. The common forms used in conservatorships may be found at Conservatorship Forms, but it is highly recommended that a proposed conservator or conservatee enlist the services of a family law attorney experienced in handling conservatorships.
Note: The required conservatorship forms do not offer information on how to complete the forms, write declarations in support of the conservatorship, conduct investigations, subpoena medical records, examine witnesses, follow court procedure and rules of court, or adhere to California evidence and probate law.
After filing and serving the proper conservatorship forms and notices, the proposed conservator must attend a training class for conservators, file an inventory and appraisal of the conservator’s assets, file a general plan for conservatorship, file a status of the finances and well-being of the conservatee, and, if land is owned by the conservatee, record the conservatorship with the county Recorder’s office.
Termination of conservatorships
A conservatorship may be terminated in the following circumstances: The conservatee becomes able to handle his or her own well-being and/or finances, the conservatee’s assets are depleted (for conservatorships of the estate), the conservatee dies, the conservator dies, the conservator is removed, or the conservator resigns.
For more information on conservatorship law, contact our family law attorneys today for a free and discreet consultation. Our attorneys are experienced in conservatorships and are available seven days a week to assist you and your family. Call today!
909-725-8199
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Common Conservatorship Forms
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