If you have questions about conservatorships, you are not alone. Below are just a few frequently asked questions about the conservatorships and how they work.
A conservatorship can be avoided if the person at risk created a comprehensive estate plan. If the person at risk is willing to accept informal assistance - and there is no conflict among family members regarding that assistance - a conservatorship may not be necessary. A Conservator of the Estate has the same duties and authority as an agent appointed under a Power of Attorney for Asset Management. An agent appointed under an Advance Health Care Directive (AHCD) has all of the same duties and authority as a Conservator of the Person - with some important exceptions. An Agent under an AHCD cannot place someone in a memory care facility with a secured perimeter against their will nor can they authorize the administration of psychotropic medications. A court order appointment of a Conservator with specific authority to take those actions is required.
A responsible family member can be appointed as Conservator for a loved one. If the family cannot agree on who should be appointed, or there is no suitable person to serve, the court may also appoint a Professional Fiduciary to serve. A Professional Fiduciary has specialized experience and education, and must pass a test to become licensed by the State of California to qualify.
If the proposed conservatee, or some other person objects to the appointment of a conservator, or objects to a specific person being appointed as conservator, the case will be classified as a contested matter and additional court proceedings will be required.
A document called a Petition must be filed with the Probate Court, along with a number of other documents, and a hearing before a judge must take place. When such a petition is filed the court will appoint an attorney to represent the proposed conservatee to see if he or she opposes the Petition. The Court will also appoint a Court Investigator to interview the proposed conservatee, their family and friends and their medical care providers. The Court Appointed Attorney and the Court Investigator will both file reports with the Court with their findings.
There are two types of authority granted to someone serving as a conservator. One is "of the person" and the other is "of the estate."
A conservator of the person has the authority to determine where the conservatee will live and to make decisions about their medical care, including the authority to hire paid caregivers. If the conservatee is prone to wandering away the conservator may also be granted the authority to arrange for the conservatee to live in a care facility with a “secured perimeter." If the conservatee would benefit from certain medications, classified as psychotropic medications (often prescribed for dementia patients) the conservator will typically be granted that authority as well.
A conservator of the estate has the authority to manage the conservatee’s assets, including their home, bank accounts and retirement benefits. The conservator is tasked with paying the conservatee’s bills and with ensuring that any required tax returns are filed timely.
People who have lost the legal capacity to make financial or medical decisions due to injury, illness or mental impairment such as dementia are the subjects of a probate conservatorship. Once a petition has been filed, the Court will appoint an independent attorney for the proposed conservatee and will also send out an independent Court Investigator. The purpose for these appointments is to make absolutely certain that the proposed conservatee has every opportunity to object and to ensure that the conservatorship petition was not filed for an improper purpose.
A limited conservatorship is appropriate for individuals who are developmentally disabled, such as people born with conditions that inhibit their mental development or other afflictions that limit their ability to provide for their own personal needs or to manage their own financial resources. Not all developmentally disabled people require conservatorship, only those whose disability prevents them from being able to make decisions or resist undue influence need this type of protection.
Once people with a developmental disability reach age 18 they are legally adults and their parents cannot assume they can continue to make medical, educational, financial and personal decisions for them. When the need for assistance exists and the parents or other family are prevented from providing help, then a Limited Conservatorship will be needed.
All people with developmental disabilities in California are eligible for, and receive services from the Regional Center for their area. The Court will require a report from that agency before granting a limited conservatorship. A proposed limited conservatee will also have an independent attorney appointed to meet with and represent him or her and advise the court whether the proposed limited conservatee objects. When Regional Center is involved, Court Investigators are generally not appointed.
The Lanterman Petris Short (LPS) Act was passed to provide a way to ensure that mentally ill patients who need a conservator can have one appointed. These types of conservatorships are not filed in the Probate Court, they are filed in a special department of the Superior Court dedicated to these kinds of cases. LPS conservatorships differ from Probate Conservatorships in a few ways - an LPS conservatorship is initiated when the patient’s psychiatrist determines that it is required to ensure the patient’s safety and works with County Counsel and the Public Conservator’s Office to file a Petition. Before an LPS conservatorship can be approved, the patient must be shown to be a danger to himself or to others and be unable or unwilling to conform his behavior or receive treatment. The LPS Court can appoint a qualified family member as an LPS conservator. LPS Conservatorships terminate automatically one year after being granted, but can be extended by the Court after a hearing.
If you think a friend or family member needs this type of help you can find information by contacting the San Diego Public Conservator’s office.
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