The Conservatorship Process and Why an Attorney is Necessary
Conservatorship and the Potential for Elder Abuse in California
Types of Conservatorship Cases We Handle:
Conservatorship of the Person
Conservatorship of the Estate
Complex Trust/Conservatorship Matters
When is a Conservatorship Necessary?
For assisting a friend or family member with mental capacity issues, there are two main ways to help them. One way is to have them sign documents such as a Durable Power Of Attorney or Advanced Health Care Directive. When somebody signs these documents, they are appointing another person to make medical and financial decisions on their behalf. However, sometimes this avenue is not available, because the mental capacity issues are too severe or the person is susceptible to undue influence. In those situations, a Conservatorship is necessary. For those adults with special needs, a limited conservatorship is often necessary.
How a Conservatorship Works
A Conservatorship is the best way to assist an elderly person with severe mental capacity issues, while also providing complete and total protection. To obtain a Conservatorship, you must petition the Court requesting that they appoint you Conservator over the person with mental capacity issues (i.e. the Conservatee). A Conservator can make legal decisions on behalf of a Conservatee in several different situations.
Types of Conservatorships
Conservatorship of the Person. The Court will establish a Conservatorship of the Person if the Judge believes that the Conservatee cannot make medical decisions by themselves. Therefore, if the Court appoints you Conservator of the Person, you generally have the ability to make medical decisions on behalf of the Conservatee. You can help determine where they will reside, assist them in obtaining necessary prescriptions, and make many other medical decisions for them. Often times, people with mental capacity issues can’t understand what they need to do when it comes to their health care. Having a Conservator of the Person can literally save a person’s life.
Conservatorship of the Estate. The Court will establish a Conservatorship of the Estate if the Judge believes that the Conservatee cannot manage their finances or is susceptible to undue influence. If you are appointed as Conservator of the Estate, you generally have the ability to make financial decisions on behalf of the Conservatee. You take control of their assets and manage them prudently. You can invest the liquid assets and sell real property. However, there are many complicated laws regarding the management of the assets. Further, you have to account to the Court for each penny spent. The California legislature has put in many protections to ensure that no Conservator can misappropriate Conservatee funds for their own personal reasons.
Many caveats and exceptions exist when it comes to the laws around Conservatorships. This is a general overview of the nature of a Conservatorship and when it is appropriate. If you are concerned about a friend or family member being unable to manage their health care or finances, and executing estate planning documents is unreasonable, a Conservatorship is the way to go.
Temporary Conservatorship vs. General Conservatorship
A temporary Conservator is needed when there is an emergency need to protect an elderly person or their property from injury or loss. For example, if a caregiver is taking financial advantage of the elderly person, you may need to rush to Court for the purpose of obtaining temporary Conservatorship to block access to the Accounts.
If you do not obtain a temporary Conservatorship, the first hearing on the general Conservatorship is usually 6-8 weeks out, depending on the county. Here, the concern is less an emergency need to manage assets or medical care, but instead what the best course of action is to ensure the appropriate care and well-being of the elder person in the long term.
I handle Conservatorship litigation and, similar to Will and Trust litigation, my main focus is attempting to mediate these matters. Conservatorship litigation can occur when multiple parties wish to be Conservator. In those instances, I try to work with all parties to find a mutually agreed upon resolution before taking the matter to trial. I have represented clients in many complex Conservatorship mediations in order to find creative solutions to family problems.
More information on the Contested Emergency Conservatorships.