Updated: Nov 28, 2022
Find an Estate Planning Lawyer for Conservatorships
A conservatorship is a legal status that allows someone to take care of someone's affairs when they are past the age of 18 and can no longer make their own decisions. This may include medical decisions, financial decisions, and other personal matters. When individuals cannot make their own decisions or resist the undue influence of fraud, they may need a conservatorship. This often occurs in people who are in poor mental or physical health as a result of an accident, advanced age, or disease.
A conservatory can manage a person's health, finances, living arrangements, and other decisions if they cannot do so themselves. Several people can regulate different aspects of a person's life. On the other hand, a conservatorship may be established such that only one person is in charge of all personal decisions.
When Do You Need a Conservatorship?
A conservatorship is for people over 18 who can't make decisions about their own lives on their own. The following are examples of situations where a conservatorship may be appropriate:
Someone has been admitted to a hospital or treatment facility and is unable to make medical or personal decisions on their own
Someone is being irresponsible with their assets and is unable to manage their finances on their own
When a mentally or physically impaired child reaches 18, he or she requires a guardian to continue making personal decisions on their behalf.
A conservatorship lawyer may assist you in determining if a conservatorship is needed in your case. There may be several signs that your loved one cannot make sound choices independently. Rather than causing their personal affairs to crumble, you may file a conservatorship petition.
What is a Conservatorship, and How Does It Work?
A conservatorship is the most effective way to help an elderly person with serious mental ability problems while still ensuring absolute security. To receive a Conservatorship, you must petition the court to nominate you as the individual with mental ability issues' Conservator (i.e., the conservatee). In various cases, a Conservator may make legal decisions on behalf of a Conservatee.
Conservatorships come in Different Forms
The Person is under a Conservatorship. If the Judge feels the conservatee cannot make medical decisions on their own, the court will impose a Conservatorship on the Person. As a result, if the court names you Conservator of the Person, you have the authority to make medical decisions on behalf of the conservatee.
You will assist them in deciding where they will live, obtaining required medications, and making various other medical decisions for them. When it comes to their health care, people with mental capacity problems sometimes don't understand what they need to do. A person's life can actually be saved by having a Conservator of the Person.
The estate is under conservatorship. If the judge feels the conservatee cannot control their assets or is vulnerable to undue interference, the court may appoint a Conservator of the Estate. If you're named Conservator of the Estate, you'll be able to make financial decisions on behalf of the conservatee in most cases.
You seize possession of their properties and prudently handle them. You can put your liquid assets to work and sell real estate. However, there are several complex laws governing wealth management. You must also report to the court for every penny spent. The California legislature has enacted several safeguards to ensure that no Conservator can misuse Conservatee funds for personal gain.
When it comes to Conservatorship rules, there are several caveats and exceptions. This is a general description of what a Conservatorship is and when it is used. A Conservatorship is a way to go if you are worried about a friend or family member being unable to handle their health care or assets, and implementing estate planning documents is impractical.
Conservatorships in Los Angeles
A conservatorship is created in California when a judge appoints someone or a group of people to make decisions on behalf of someone else. The Conservator or conservators make decisions that control either the conservatee's treatment, their finances, or both. An estate planning attorney may apply for a conservatorship when an adult cannot care for themselves or their Los Angeles properties.
However, there are many forms of conservatorships, and you should seek the advice of a knowledgeable Los Angeles conservatorship solicitor unless you want to risk making the wrong decision and jeopardizing your loved one's care.
A regular conservatorship is one of the styles, and it may be a conservatorship of both the individual and the estate or only the person. A Limited Conservatorship, or conservatorship for people with intellectual disabilities, is the other choice. There is a third type of conservatorship known as a Temporary Conservatorship to further complicate matters, but this is just a temporary form of security placed in place while the courts are processing a general conservatorship.
A general conservatorship, also known as a daily conservatorship, can be divided into two parts. The Conservatorship of the Person, or the first portion, is responsible for the individual's personal care and health, including lodging, food, medical treatment, and any health-related decisions. On the other hand, the Conservatorship of the Estate is mainly concerned with financial matters such as bill payment and income collection on behalf of the conservatee.
A conservatorship of the individual and a conservatorship of the estate is usually required and filed simultaneously. A restricted conservatorship is all that is required for adults with disabilities or other developmental problems, which means that only one conservatorship is pursued, such as a conservatorship of the individual, a conservatorship of the assets, or both.
A conservatorship of the individual may be necessary if, for example, someone's mental ability is intact, but their health is deteriorating. A younger person in good health who is not of sound mind, on the other hand, can need an estate conservatorship.
However, if the conservatee is willing to sign and recognize an Advance Healthcare Directive or Durable Power of Attorney, a Los Angeles estate planning attorney can choose to forego a conservatorship entirely. A conservatorship can be dropped when a conservatee is willing to stick to a set schedule or is in a relationship with a spouse or partner that can manage health and financial matters. A representative payee is required if a conservatee only receives Social Security or benefits, though a conservatorship of the individual may also be required.
When filed by a Los Angeles conservatorship solicitor, conservatorships continue until the conservatee's death unless otherwise stated, such as when the conservatee could not make decisions for themselves due to a serious illness or accident. However, defined-end conservatorships are uncommon, and a power of attorney or a healthcare order might be more appropriate in these situations. In some rare cases, a conservatorship may be terminated if the conservatee's assets are depleted, though the person's conservatorship may continue.
Temporary vs. Permanent Conservatorship
When an elderly person or their property must be protected from injury or damage, a temporary Conservator is required. For example, if a caregiver is abusing the elderly person financially, you can need and rush to court to secure temporary conservatorship to prevent access to the accounts.
If a temporary Conservatorship is not obtained, the first hearing on the general conservatorship is typically 6-8 weeks out, depending on the county. The issue here isn't so much an immediate need to handle assets or medical treatment as it is determining the best course of action to ensure the elder's long-term care and well-being.
Limited vs. Complete Conservatorship
A restricted conservatorship is a legal decision-making power granted to anyone caring for another adult with a developmental disability. A restricted conservator is an adult who has been given the authority to care for another person. They care for a limited conservatee, an individual with a developmental disability.
When a restricted conservatorship is granted, the court must determine if the person being cared for identifies as a person with a developmental disability and whether the person seeking an appointment as the Conservator is eligible.
A restricted conservatorship gives the limited Conservator the authority to make personal and/or financial decisions on behalf of the limited conservatee.
Guardianship vs. Conservatorship
This can be difficult. A guardianship is for those under the age of eighteen, and a conservatorship is for those who are eighteen and up. A conservatorship is sometimes referred to as guardianship in states other than California. As a result, if you live in California and choose to care for an elderly family member, you can apply for a conservatorship. It's important to consider the distinctions between guardianship and conservatorship and when you may need both.
A guardianship gives you the authority to make healthcare and other non-financial decisions for a family member who is sick, injured, or disabled.
On the other hand, a conservatorship gives you the power to make financial choices about a loved one with an intellectual disability.
You will need both conservatorship and guardianship to properly care for your loved one. You'd be able to make healthcare, financial, and non-financial decisions for that individual if you merged the two.
You will only need guardianship if you don't need to make financial decisions for the individual but do need to make healthcare decisions.
What Does a Conservator Do?
The Conservator's job is to make personal decisions on behalf of the conservatee. If the individual has properties, it may also require financial decisions, but most restricted conservatorships are for the person only. The court can determine which decisions a conservator may make at the hearing.
The proposed Conservator may request seven powers over the proposed conservatee. If the Conservator is given these rights, the court effectively takes them away from the small conservatee and gives them to the Conservator.
To create the proposed conservatee's residence or specific dwelling place.
To obtain access to and restrict access to the proposed conservatee's sensitive documents and papers.
To exercise power over the proposed conservatee's contractual rights.
To grant or deny medical consent.
To give or withhold consent to the limited conservatee's marriage.
To make all decisions about the planned conservatee's education and training.
To keep tabs on the proposed conservatee's social and sexual interactions.
Establishing a Limited Conservatorship
A restricted conservatorship necessitates several measures as well as a court hearing.
1: Locate an experienced conservatorship lawyer.
Finding an estate planning attorney who can guide you through this complex and frustrating process is the first step in creating a restricted conservatorship. There will be a lot of paperwork to fill out, and you will be required to appear in court at least once, if not several times, as compared to handling the process alone. Having an estate planning attorney by your side will make the process more relaxed and less stressful.
2: Pick a conservatorship form.
Conservatorships come in a variety of forms. Before you begin, you must first determine which option is best for your family.
The following are the most famous conservatorships:
Conservatorship and restrictions
Conservatorship temporarily (for emergencies)
Conservatorship in general (if the proposed conservatee is so disabled that a limited conservatorship would be inadequate)
You can proceed to the next stage until you've determined which form of conservatorship is best for your family. An estate planning attorney will assist you if you're not sure which form of conservatorship is right for you.
3: Complete the paperwork.
Before proceeding with your application for a conservatorship for your family, you must fill out and send numerous forms to the court.
These are some of the forms available:
GC-310 Probate Conservator Appointment Petition
Notice of Hearing GC-020
Confidential Supplemental Information for GC-312
Citation for Conservatorship GC-320
GC-348 Conservator's Responsibilities
Confidential Conservator Screening GC-314
GC-340 Conservator Appointment Order
GC-350 Conservatorship Letters
GC-335 Declaration of Ability
Citation for Conservatorship GC-320
Forms Found in the Community (depending on which county you are filing)
4: Find out when your hearing is and what your case number is
The clerk will send you a time and date for your conservatorship meeting after completing all the forms required to apply for one.
You may even submit for a temporary conservatorship if the condition is urgent. This allows you to become a conservator on a temporary and emergency basis, awaiting the initial hearing. You must request a permanent appointment at the same time as a temporary appointment.
For a provisional conservatorship, you'll also need to fill out the following forms:
Petition for the Appointment of a Temporary Conservator (GC-110)
Order Appointing a Temporary Conservator (GC-140)
GC-150 Temporary Conservatorship Letters
Step 5: Submit your paperwork
The next move is to send your completed forms to the appropriate authorities. Create two copies of your forms before submitting them to the court so that you can keep one for your records.
5: Obtain a Corrected Copy
Another justification for making two copies of your forms is that the clerk will stamp the originals and both copies as filed when you send the copies to her. You may have problems later if the court loses one of your records if you don't have those stamps and copies (it happens more often than you would think).
6: A Lawyer Appointed by the Court
The person who might become the conservatee must be present at your court hearing. Prior to the trial, the prospective conservatee will consult with a court-appointed counsel. This court-appointed counsel will explain the situation to them and fight for their rights. The court-appointed counsel must speak for them even if they feel it isn't in their best interests.
7: Notes from the Probate Examiner
The probate examiner may make these notes, which will summarize your conservatorship petition and let you know whether there are any flaws (mistakes or missing documents). These notes will be available online approximately two weeks before your conservatorship court hearing.
8: Show up for the hearing
You must appear in court for a conservatorship hearing to obtain a limited conservatorship. Unless the doctor's Capacity Declaration states that the prospective conservatee cannot attend due to medical reasons, they must appear in court.
9: Obtain Order and Letters
Obtaining the Order and Letters is the final stage in the procedure. Depending on the court, receiving the final documentation will take two to three weeks. They should be filed before the hearing, but extra copies should be brought to court.
Keeping a Conservatorship at Bay
An individual may wish to escape a conservatorship for a variety of reasons. This can be accomplished with the assistance of a conservatorship lawyer and diligent estate planning. Powers of Attorney for treatment and banking may be used to appoint others to make decisions on your behalf. A Healthcare Power of Attorney and a Financial Power of Attorney can both appoint the same person to manage your personal affairs, or they can name different individuals. Power of attorney could be your next best choice if you choose to escape a conservatorship. A conservatorship lawyer can also handle powers of attorney.
The Risks of Excessive Influence
Anyone is vulnerable, but elderly or ill people are particularly vulnerable as they become more dependent on others' physical and emotional support. An influencer sees an opportunity to gain personal gain by influencing another's a decision, typically by deception and persuasion. The method of influencing another's free will by unreasonable coercion, resulting in that person's lack of choice and forcing them to behave against their free will, is known as undue influence. Undue control can take many forms, all of which can harm a person's mental and physical health and their properties.
Undue Influence Critical Indicators
Excessive gifting by the influence or spending a lot of time with one person.
Changes in adult attitudes include eating habits, daily activities, and even likes and dislikes.
Isolation from family or friends and a reduction in the frequency of visits with friends.
Interference in the communication process with the user or the influencer who is always present while communicating.
The court appoints conservators to administer and manage another person's properties. When a judge determines that an individual is incapable of handling their own personal or financial affairs, a conservator may be named to protect the individual's well-being. This helps to discourage undue control and elder abuse since the Conservator makes financial and personal decisions.
There are two types of conservators:
The two most common forms of estate conservatorship are individual conservatorship. A conservator of the estate handles income, debt, public assistance benefits, properties, and other business and financial decisions. The Conservator takes care of the person's personal needs, such as food, health care, transportation, and living arrangements. Depending on the circumstances, one Conservator may be assigned to both positions, or each role may have its own Conservator.
Every case is unique.
When it comes to appointing a conservator, you have a few choices. Conservators of the estate may be a citizen, legally approved state officials, a bank, or Trust Corporations. The Conservator must be certified by the court and will be based on the person's financial situation's complexity. A non-profit agency may be chosen to manage personal matters for the conservatorship of the person, but most of the time, a court chooses an individual, such as a family member. Nursing homes and hospitals are not permitted to act as conservators of the person, and banks are not permitted to act as conservators of the person.
They are held responsible.
Every year, the court would receive a report from the Conservator. Conservators of estates are typically required to provide an initial report of all financial details and are kept responsible for accurately reporting each year. The aim of most court systems is to use the "least restrictive means of action," which allows conservators to handle the situation while also maintaining appropriate checks and balances. This enables the Conservator to administer a person's affairs following their wishes as stated in their estate plan.
What if you haven't made any estate plans?
If you don't prepare for a situation in which you won't be able to make choices for yourself, your family, friends, and others will be forced to assist you. While your conservatorship lawyer may assist you in making a plan ahead of time, if you do not do so, a court and judge will appoint a conservator on your behalf.
The court will name a conservator in California in the following order:
a grown child
A brother or sister
another interested individual
A public defender
First, the court will name your spouse as your Conservator, who will decide on your behalf when you are incapacitated. If your spouse is not alive or unable to make those vital decisions, your adult children will assume responsibility. One child will be chosen by the court to make decisions for you. If your children do not all agree with the choices that are made for you, this may become combative.
If a parent or sibling is unavailable, a parent or sibling may be selected. The court might also recognize another person who is interested in being your Conservator, such as a close friend. If none of these options are available, a public guardian can be appointed.
If you cannot decide about your personal affairs, you can avoid this misunderstanding by appointing your own Conservator. A conservatorship lawyer will help you manage your assets properly. Consider one of our prescreened California Lawyers in your California Attorney Search.
Why Should You Hire a Conservatorship Lawyer?
While applying for a conservatorship isn't complicated, there are a lot of details to recall, paperwork to complete, and court appearances to create. Going through the process alone can be frustrating and stressful.
An estate planning attorney may be extremely beneficial in this situation. A conservatorship attorney is a special needs attorney specializing in conservatorships—someone with advanced knowledge of conservatorships and how to get them authorized.
1. You want a Power of Attorney that is both effective and long-lasting.
Choosing the best conservatorship for your family isn't as straightforward as it might seem. A conservatorship lawyer will help you understand the differences between the different types of conservatorships and determine which one is best for your family.
You won't be able to care for your loved one if you apply for and obtain the wrong conservatorship. A conservatorship lawyer may assist you in obtaining the appropriate conservatorship and, as a result, obtaining an effective power of attorney for your loved one.
2. If you don't plan ahead, you'll end up with a court-appointed guardian.
During the conservatorship application process, an investigator may meet with the prospective conservatee, and the conservatee must attend the conservatorship hearing unless they cannot do so due to illness.
The judge will decide that an attorney should represent the prospective conservatee at the hearing. If this is the case, the conservatee will be given a lawyer by the judge. That conservatorship lawyer may not be the best choice to represent a member of your family.
You won't need a court-appointed lawyer if you employ a conservatorship lawyer before the trial. They'll ensure you're armed for everything you'll need to protect the rights of the future conservatee.
3. You'll Need an Attorney to File a Conservatorship Petition
Someone must file a petition for conservatorship with the court clerk as part of the conservatorship application phase. The petitioner is the person who files the petition.
The complainant and the possible Conservator cannot be the same person. This is regarded as a conflict of interest. When you employ a conservatorship lawyer, they will file the conservatorship petition on your behalf.
4. An experienced conservatorship lawyer is familiar with the whole procedure.
A conservatorship application is a multi-step process that includes an application, paperwork filing, a court hearing, and an investigation. This is a procedure that an accomplished estate planning attorney is familiar with, as they have done it many times before.
You're hiring a guide that can help you make the right choices for your family members and handle the conservatorship application process with ease and less stress if you hire an experienced conservatorship solicitor.
5. The Citation Must Be Given by Someone Not Involved in the conservatorship
The formal notification of the proposed conservatee is part of the conservatorship application process. A citation is how the courts refer to this.
The citation must be delivered to the proposed conservatee by someone who will not be involved in the conservatorship.
A conservatorship solicitor can not only draft the citation in such a way that it is legally enforceable, but they can also deliver it as a neutral third party who is not involved in the conservatorship.
6. The Conservatorship Attorney will assist you in completing all of the necessary forms.
Several forms must be completed and submitted when applying for a conservatorship. If there are problems with this paperwork, the conservatorship will be denied. Filling out the paperwork correctly the first time will prevent the family from going through the conservatorship process again if the conservatorship is denied.
An experienced conservatorship attorney will assist you in filling out all of the paperwork required by the courts for the conservatorship application process and ensuring that you have all of the necessary details.
7. The conservatorship lawyer will ensure that you avoid the most common blunders in the process.
During the course of applying for a conservatorship, there are many risks and possible errors to avoid. A conservatorship attorney will assist you in avoiding these blunders and guiding you through the application process smoothly.
You're more likely to make decisions independently if you don't have a conservatorship attorney.
8. You'll be able to save time.
More than anything, a conservatorship attorney could help you save time and reduce stress during the conservatorship application phase. Families face a tough emotional transition when a parent or loved one goes from independent to dependent.
It can be incredibly difficult to navigate the legal system while still dealing with emotional stress. A conservatorship attorney will help you get through the process quickly and with few errors, saving you time.
How Much Will Get a Conservatorship Cost?
Several factors determine the cost of filing for a conservatorship. You'll have to pay lawyer fees if you employ a conservatorship solicitor. Although lawyer fees may seem to be an additional cost, they will undoubtedly save you time and emotional resources in the long run.
The cost of filing for a conservatorship in court is $435. The fee will usually be forgiven if the proposed conservatee has a low income and earns Medi-Cal or SSI, but you would need to fill out clear forms and file them with the original paperwork. You will not be eligible for a refund after the fact.
A court investigator will interview the conservatee and all people with knowledge of the case once the conservatorship process has begun. After that, a hearing is held to decide whether or not a conservator will be named and who will be the Conservator. Following the appointment of a conservator, certain measures must be taken to comply with the conservatorship agreement's instructions or those of the court.
Appraisal and Conservatorship
Within 90 days of a judge signing an Order Appointing Probate Conservator, an inventory and appraisal of the individual's assets under conservatorship must be performed and filed.
A conservator may be expected to provide an inventory and valuation to a court referee for properties other than cash. The value of the products will be determined by the probate referee, which may take several months. The estate is paid a fee for the referee's service, which can include costs including mileage and a portion of the estate.
Following the establishment of a conservatorship, the court will perform periodic investigations to ensure that the individual under conservatorship is adequately cared for and to decide if conservatorship should be continued.
A bond must be posted, and a comprehensive periodic report of income and expenses must be given to the court in cases where a conservator is charged with managing a person's finances.
A conservator must provide periodic status reports on the conservatee's health and condition, as well as the actions taken by the Conservator in carrying out his or her responsibilities.
A conservator is normally entitled to reimbursement for fair costs, which the court must approve.
Find an Estate Planning Lawyer in Los Angeles
1000Attorneys.com is a California Bar Association Certified Lawyer Referral Service that can refer you to a Estate Lawyer that can best handle your unique case. You can complete our submission form or contact us through our 24/7 live chat for a free case consultation.