There may come a time when you need to find a way to help a loved one manage their affairs. If your situation requires formal control and management of your loved one’s personal, medical and/or financial affairs, you need to consider a Conservatorship. The process for conservatorship California courts follow is similar to guardianship, with the exception that it applies to adults who need support and protection. A conservator has a fiduciary duty to act solely on behalf of the conservatee, with regard to finances, medical care and other personal needs. This blog will describe the conservatorship process in California.
How does a conservatorship work?
Once a conservator has been appointed, that person becomes responsible for managing the personal, financial and/or medical matters of the “conservatee” for his or her benefit. Although a conservatorship can be terminated under certain circumstances, termination would require approval from the court making the appointment.
Who gets to be a conservator?
Courts typically have very broad discretion in determining who to appoint as conservator. Generally, courts first consider a spouse, an adult child, or another close relative to serve as conservator. But the ultimate decision lies with the court. In some cases, an independent professional such as an attorney or accountant may be chosen.
Petitioning for appointment of a conservator
The first step to establishing a conservatorship, is to file a document, called a “petition,” with the court requesting that a conservator be appointed. The petition will explain why your loved one is no longer able to handle his or her own affairs, and why a conservator should be appointed. The next step is conducting a hearing before the court. But before the hearing, certain information must be gathered to help the court make its ruling.
What information is provided to the court?
A probate court investigator is assigned to conservatorship cases, with the purpose of gathering relevant information to help the judge make his or her decision. The investigator will interview the person who is believed to need a conservator. The investigator will inform that person about his or her legal rights, such as the right to attend the hearing and to object to the conservatorship. The investigator can also provide an attorney for the proposed conservatee if necessary.
The investigator also interviews other individuals who are concerned about the person who is believed to need a conservator. The investigator then writes a confidential report for the Judge, and a copy of the report is sent to the attorneys in the case.
What to expect at the court hearing
Once the petition is filed, the court will set a date for a hearing. At the hearing, the proposed conservator and his or her attorney will come before the court. When the judge hears the case, he or she is already familiar with the petition, as well as any physician’s statements, investigative reports, or any other documents submitted to the court in the case. The court will then listen to what the parties have to say about the need for the conservatorship. If the case is complicated, the judge may set another hearing.
Is there assistance or training available for conservators?
In California, participants in conservatorship proceedings are shown a 20-minute educational video, just prior to the hearing. A Handbook for Conservators is also available for purchase. Also, when family members or friends are appointed as conservators, the court typically requires that person attend free educational classes, which are taught by private professional conservators. Your California incapacity planning attorney can also provide you with valuable information regarding your duties as a conservator.
The advantages of a conservatorship in California
One advantage of having a court-appointed conservatorship is the control and supervision the court maintains over the appointment. The benefit of supervision is that it prevents the conservator from making any essential decisions without permission. In most cases, the conservator is required to file a petition with the court to obtain written permission for important transactions. The conservator must also file an inventory listing all the conservatee’s property with the court, as well as, continued accountings of all transactions. This oversight provides better protection for the conservatee and peace of mind for the family.
The disadvantages of a conservatorship in California
One drawback is that conservatorships can be rather expensive because of the court supervision. Therefore, even after the conservatorship has been established, the costs will continue. Another disadvantage is the lack of privacy in conservatorship proceedings, which are a matter of public record. The most noteworthy disadvantage is the fact that the appointment of a conservator effectively strips the conservatee of any ability to make their own decisions about most of their affairs.
Click here for a FREE estate planning worksheet! If you have questions regarding conservatorships, or any other incapacity planning needs, please contact the Schomer Law Group either online or by calling us at (310) 337-7696.