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Conservatorships

Our experienced attorneys are willing to tackle the most complex of cases on your behalf

Protecting the Vulnerable

A conservatorship is a court case where a judge appoints a responsible person or organization (called the “conservator”) to care for another adult (called the “conservatee”) who cannot care for himself or herself or manage his or her own finances.

We understand that the financial health of vulnerable Californians can sometimes depend on appointing a conservator to manage their affairs. With years of experience in establishing conservatorships, we are dedicated to guiding you through the process and ensuring that conservatees have the protection that they need.

Unfortunately, the elderly may lose their capacity to perform the daily duties of their care, their financial affairs, and various other aspects of their life that have become difficult or impossible to manage.  Moreover, this can make them vulnerable to people willing to take advantage of their decreased capacity.  All too often family members will try and leverage their influence over their elders for their benefit.

Families or others may ask for legal advice to help with the management and care of their loved ones.  Through careful evaluation and examination, it may be determined that a person or persons have lost the capacity to manage their care and other affairs.  An attorney may then petition the court to have a conservator help oversee the person’s care and management of their affairs so that they may protections against people trying to take advantage of their situation.

What Kind of Conservatorships are Available?

There are many kinds of conservatorship available.  Along with the petitioner, the court, experts, and your attorney will help decide which conservatorship will best provide the care and protections needed for the conservatee.  A few types of conservatorship are illustrated below:

1. Probate Conservatorships
These conservatorships are based on the laws in the California Probate Code. They are the most common type of conservatorship. Probate conservatorships can be:

  • General Conservatorships — conservatorships of adults who cannot take care of themselves or their finances. These conservatees are often elderly people, but can also be younger people who have been seriously impaired, like in a car accident, for example.
  • Limited Conservatorships — conservatorships of adults with developmental disabilities who cannot fully care for themselves or their finances. Conservatees in limited conservatorships do not need the higher level of care or help that conservatees in general conservatorships need.

When a conservatorship is needed right away, the court may appoint a temporary conservator until a general conservator can be appointed. The request must be filed as part of a general conservatorship case, and can be filed either at the same time or soon after the general conservatorship case is opened with the court. The main duties of a temporary conservator are arranging for the temporary care, protection, and support of the conservatee, and protecting the conservatee’s finances and property.

2. Lanterman-Petris-Short (LPS) Conservatorships
LPS conservatorships are used to care for adults with serious mental health illnesses who need special care. These conservatorships are used for people who usually need very restrictive living arrangements (like living in locked facilities) and require extensive mental health treatment (like very powerful drugs to control behavior). Conservatees in LPS conservatorships cannot or will not agree to the special living arrangements or treatment on their own. LPS conservatorships must be started by a local government agency. If you believe that this is the type of help the adult needs, contact your local county Public Guardian or Public Conservator. The information on this Online Self-Help Center does not apply to LPS conservatorships.

What are the Duties of a Conservator?

The duties of a conservator of the person are to:

  • Arrange for the conservatee’s care and protection.
  • Decide where the conservatee will live.
  • Make arrangements for the conservatee’s:
    • Meals,
    • Health care,
    • Clothing,
    • Personal care,
    • Housekeeping,
    • Transportation,
    • Shelter,
    • Recreation, and
    • Well-being.
  • Get approval from the court for certain decisions about the conservatee’s health care or living arrangements.
  • Report to the court on the conservatee’s current status.

The duties of a conservator of the estate are to:

  • Manage the conservatee’s finances.
  • Locate and take control of all assets.
  • Collect the conservatee’s income.
  • Make a budget to show what the conservatee can afford.
  • Pay the conservatee’s bills.
  • Responsibly invest the conservatee’s money.
  • Protect the conservatee’s assets.
  • Account to the court and to the conservatee for the management of the conservatee’s assets.
Who Can File for a Conservatorship?

There are a number of people who can file for a conservatorship:

  • The spouse or domestic partner of the proposed conservatee;
  • A relative of the proposed conservatee;
  • Any interested state or local entity or agency;
  • Any other interested person or friend of the proposed conservatee; and
  • The proposed conservatee, himself or herself.

In appointing a conservator, the court is guided by the best interests of the conservatee. If the proposed conservatee has nominated someone (and the proposed conservatee has the mental and physical ability to express his or her preference), the court will appoint that person as conservator unless it is NOT in the proposed conservatee’s best interests.

If the proposed conservatee has not or cannot nominate anyone, the law provides a list of preferences that the court generally follows when the court determines whether all these persons are qualified to serve as a conservator.

The order of preference is:

  1. Spouse or domestic partner
  2. Adult child
  3. Parent
  4. Sibling
  5. Any other person the law says is okay
  6. Public Guardian

If the person closest to the top of the list does not want to be conservator, he or she can nominate someone else.

In the end, regardless of this order of preference, the selection of the conservator is up to the judge, and the judge makes this decision by considering the best interests of the proposed conservatee.

If you know someone who needs help and probably needs a conservator, but there is no suitable family friend or relative that can be the conservator, do some research to find a private professional fiduciary to act as conservator. Professional fiduciaries charge fees, but the court must approve in advance all fees paid by the person to be helped. If the person who needs help cannot pay these fees, contact your county’s Public Guardian or Public Conservator by searching online for “public guardian” and your county’s name or looking in the government pages of your telephone book. There may be fees charged, but they are usually less than the fees requested by a professional fiduciary. They have experienced personal conservators and property administrators who can serve as conservator. If you are not eligible to use the Public Guardian’s services, contact your county’s Department of Aging.

You can also call the:

Temporary Conservatorships

A judge may appoint a temporary conservator to take care of a conservatee’s more immediate needs that cannot wait until a general conservator is appointed. A temporary conservator may also be appointed by the court to fill in temporarily in between permanent conservatorships, for example, if one conservator is removed and a new one has not yet been appointed.

Temporary conservatorships have a specific end date. A temporary conservator is usually appointed for a fixed time period, usually 30 to 60 days. These conservatorships can be of the person, of the estate, or both. The main role of the temporary conservator is to ensure the temporary care, protection, and support of the conservatee. And the temporary conservator of the estate protects the conservatee’s finances and property from any loss or damage until a general conservator can take over the management of the estate.

A temporary conservator cannot, without the judge’s prior approval:

  •  Move the conservatee from his or her home (unless it is an emergency) ;
  • Sell the conservatee’s home, or, if the conservatee is a renter, give up the lease; or
  • Sell or give away an estate asset.

To ask for the appointment of a temporary conservator, the request must be made as part of a general conservatorship court case.

Can a Conservatorship End or be Terminated?

A conservatorship is usually a permanent arrangement. But, in certain cases, a conservatorship may be ended or the conservator may be changed.

  • The conservatee becomes able to handle his or her own affairs
    Someone may have a conservator while he or she recovers from a physical or mental condition that is temporarily disabling. For example, the conservatee may have been in a serious car accident and be unable to handle his or her personal affairs or finances. After rehabilitation, the conservatee may recover and be able to take care of things again.

    In these cases, the conservatee, the conservator, a relative or friend of the conservatee, or some other interested person can ask the court to end the conservatorship. The court may ask the court investigator to evaluate the case and the conservatee’s condition to see if the conservatorship should be ended. If the judge ends the conservatorship, the conservator will be released from his or her duties.

  • The conservatee doesn’t have any more assets
    Sometimes all of the conservatees assets will be spent for his or her care. Without assets there may no longer be a need for a conservatorship of the estate. The conservatorship of the person continues if necessary.
  • The conservatee dies
    The conservatorship ends when the conservatee dies. But the court will not automatically release the conservator from his or her duties and close the conservatorship until the conservator takes certain actions to finish the case.
  • The court removes the conservator
    The court may remove a conservator who is not doing the job or is not able to do it, and then appoint a new conservator. The conservatee or any of his or her relatives or friends may ask the court to remove and replace the conservator. If the conservatee makes the request and does not have his or her own lawyer, the judge will generally appoint one to file the petition for the conservatee.
  • The conservator dies
    If the conservator dies, a relative, friend, or the conservator’s executor (the personal representative of his or her estate) should let the court know. If there is an estate conservatorship, the conservator’s executor or attorney may be required to file a final account of the conservatee’s financial affairs, or another conservator may be required for this purpose.
  • The conservator resigns
    If the conservator becomes ill or cannot continue serving as a conservator for some other reason, the conservator can file a petition asking the court to accept his or her resignation. Until (and unless) the court accepts the resignation, the conservator is still fully responsible as conservator.

    If the court accepts the resignation, the judge may ask the former conservator to help find someone else to replace him or her. If there is no one suitable, the Public Guardian or a professional fiduciary may be appointed.

When a conservator is removed or resigns, or the conservatorship ends, the conservator will be released from his or her duties, but only after he or she wraps things up and provides the court with the needed information or documents to either transfer the case to a new conservator or end the conservatorship. For conservatorships of the estate, the conservator will have to turn in a final accounting.

Are There Alternatives to a Conservatorship?

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:

  1. Can cooperate with a plan to meet his or her basic needs.
  2. Has the capacity and willingness to sign a power of attorney naming someone to help with his or her finances or health-care decisions.
  3. 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.
  4. 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.

Some alternatives to a conservatorship

For Medical and Personal Care Decisions:

  • Advance health care directive
  • Court authorization for medical treatment
  • Informal personal care arrangements
  • Restraining orders to protect against harassment

For Financial Decisions:

  • 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)
Contact Us for a Free Case Evaluation

If you feel that you know someone who may need a conservatorship or may be a victim of physical, emotional, and/or financial abuse due to their decreased capacity, please call us to see if a conservatorship is a possibility to protect the vulnerable. To schedule a case evaluation, contact us online or via phone at (650) 649-5447.

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