Conservatorships

This is a broad overview of conservatorships and the conservatorship process. A conservatorship is a court proceeding to appoint a manager for the financial affairs and personal care of one who is either physically or mentally unable to handle either or both. The court will, determine whether it is in the “best interests” of the proposed conservatee to have a conservator appointed.

There are two effects of a conservatorship. First, it shifts responsibility for making decisions from the conservatee to conservator. Second, it imposes significant limitations on the ability of the conservatee to take independent actions regarding legal, financial and personal care decisions.

In most cases, power of attorney documents and a trust (if the person has real estate or other significant assets), will be enough to allow the agent to act without applying to the court to be appointed conservator. Unfortunately, many people do not bother to have power of attorney documents drafted.

There are three types of conservatorship. The first is a Probate Conservatorship. This can enable to conservator to make decisions for the person (i.e. medical care), or the estate (i.e. what the person owns and and income, or both.

Another type of conservatorship is a Limited Conservatorship. This type of conservatorship is for adult disabled persons and allows conservator to make personal and financial decisions relating to education, contracts, marriage, social contacts, where the conservatee lives and medical decisions.

Finally, an LPS (Lanterman-Petris-Short) conservatorship is for those who present adanger to themselves or others. Only a medical facility can start the process for this type of conservatorship.

This talk will focus on probate conservatorships, which are the most common type of conservatorship.

Appointment of conservator of the estate is a finding by the court that the conservatee lacks the legal capacity to make contracts or buy or sell property. Conservatees are also unable to make gifts. Nor can a conservatee delegate any powers, say, by signing a Power of Attorney document. Finally, conservatees cannot waive their rights, such as the right to receive an inheritance under a Will.

A person under conservatorship does not lose all rights and can, unless ordered otherwise by the court:
a) make a will;
b) give informed consent for medical treatment;
c) marry;
d) file for divorce; and/or
e) vote.

Usually, when the petition is filed it will address these issues if there is any reason to do so.

Unless the conservatorship is only for the estate (the persons financial rights), the Petition will also include “Capacity Declaration:” signed by a physician, usually the treating doctor, a nuerologist a psychologist or psychiatrist. The capacity declaration summarizes the mental status of a person on a court form. Unless a person is lacking in at least one of the categories addressed on the form (alertness, ability to modulate mood and affect, dementia) the court is unlikely togrant a conservatorship. An exception is where there are allegations of undue influence even though the person may otherwise be competent.

A person may be able to handle her personal affairs but unable to handle to handle her financial affairs. In this case, a conservatorship of the estate may be necessary but not a conservatorship of the person. However, this same person may have the ability to execute a Power of Attorney document, appointing an agent to handle her financial affairs, thus making the conservatorship proceeding unnecessary. The more usual case when there is only a conservatorship of the person is that there is no significant money involved and the conservator is able to become the “representative payee” with social security (see below).

Where only income is from SSI or veteran’s administration program family member or friend can become “rep payee” and there may be no need for a conservatorship. Generally, the larger the estate the more likely that is makes economic and legal sense for a conservatorship to be put in place.

Unless the proposed conservatee has made a written instruction, the court will award the conservatorship in the following order of preference:
a) nominee of conservatee (if she has the capacity to form an intelligent preference);
b) spouse or domestic partner;
c) nominee of spouse or domestic partner;
d) adult child;
e) nominee of adult child;
f) parent of conservatee;
g) nominee of parent;
h) brother or sister;
i) any qualified person or corporation.

Sometimes it is better to have one person serve as conservator of the person and a second person serve as conservator of the estate. For example, one may be the primary caregiver but the other is more responsible about finances.

The conservator of the person has responsibility to see the conservatee is properly cared for; food, housing, medical care, personal care such as haircuts, etc. The conservator of the person decides where conservatee will live, subject to the requirement that the conservatee live in the least restrictive environment possible.

The conservator of the estate is responsible for handling the conservatee’s funds, paying bills, and managing property. The conservator of the estate may also be called upon to retain professional advisers such as accountants and attorneys. Conservator of the estate must file an accounting with the court one year after being appointed and every other year thereafter.

When the petition to appoint the Conservator is filed in Los Angeles County the court will appoint an attorney from the Probate Volunteer Panel to represent the proposed Conservatee and also to serve as the court’s eyes and ears to make sure the conservatorship is in the proposed conservateee’s best interest. If the PVP attorney believes the conservatorship is in the best interest of the proposed conservatee but the proposed conservatee disagrees, the proposed conservatee is entitled to a trial on the issue of his or her capacity. In come cases the court may appoint a second attorney to represent the proposed conservatee in the trial. When the PVP is appointed the PVP is entitled to all medical records. The court’s order will make that clear.

Sometimes when a conservatorship has been instituted there may be a desire to do what iscalled “Medi-Cal planning”. Medi-Cal planning is the process of transferring assets and/or income to a spouse or other persons. One way to do Medi-Cal planning for a conservatee the conservator will have to file a petition seeking authority to make gifts or transfer assets. The ability to make gifts and transfer assets may become severely limited by the new federal Deficit Reduction Act.

Where there is no family member able to serve as conservator and the public guardian is not a desired choice the petitioner may ask that a “private fiduciary” be appointed as conservator. Where there is a conservatorship of the estate the conservator, whether a private fiduciary or not, the conservator must account to the court for assets held, expenses made and income received. These reports are given a thorough review by the court’s staff, called “probate attorneys”.

This broad overview of conservatorships does not address all of the issues that can arise in a conservatorship. In most cases, the conservator will need an attorney to represent them. In some cases, a volunteer clinic can fill out the paperwork for the petitioner. In almost all cases, a conservatorship will not be necessary where the person has executed power of attorney documents.

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