What is Conservatorship?
A conservatorship is a legal proceeding by which an individual is appointed by the Court to make decisions for another adult. More specifically, the appointed individual is granted the authority to manage the personal and medical care of and/or the financial matters for another adult that is unable to resist fraud or undue influence or is otherwise deemed mentally incompetent to continue managing these aspects of their life for themselves.
It is important to note that there are multiple types of conservatorships available:
- Temporary and Permanent Conservatorships, which our office specializes in.
- Lanterman–Petris–Short Conservatorships1, for those persons with a grave disability.
- Limited Conservatorships – for persons with a developmental disabilities
Why would someone need a Conservatorship?
Generally speaking, no one has the authority to make decisions pertaining to the personal care, medical treatment, or financial matters of another individual over the age of majority without that individual’s consent. However, if an individual lacks the mental capacity to make such decisions or properly consent to medical care, they are at risk of causing irreparable harm to themselves and/or may be unable to resist fraud or undue influence regarding their property and financial affairs. Under such circumstances, a conservatorship is the process of appointing another adult the authority to make such decisions for that individual.
When does a Conservatorship need to be established?
There are documents that an adult with sufficient mental capacity may execute to grant decision-making authority to another individual, such as a Power of Attorney, a Healthcare Directive or Living Will, or a Living Trust, without the need for involvement of the Court. However, when such documents have not been executed, or if such documents are insufficient for the circumstances, and if the individual in question has already lost the capacity necessary to execute such documents, the only alternative is to establish a conservatorship and have the court appoint them to do so.
What is a Conservatorship of the Person?
A conservatorship of the Person is established to oversee the care, custody, control and education of the Conservatee. He/she/they will be given the authority to fix the residence, make medical decisions, and take other necessary steps in ensuring that the Conservatee is properly cared for.
What is a Conservatorship of the Estate?
This is the process of appointing an individual who will oversee the Conservatee’s financial resources. The Conservator is responsible for exercising ordinary care and diligence in the support, maintenance, and care over all financial resources. The Conservator must identify and marshal all of the Conservatee’s financial resources, pay all debts and expenses and properly manage those funds. The Conservator is required by law to file regular accountings with the court and seek the court’s approval of those accountings.
How is a Conservatorship established?
A conservatorship is established by filing a petition with the court and requesting that a named individual be appointed as the Conservator of the Person, Conservator of the Estate, or both. Different individuals may be appointed for each part, if necessary.
Based on the information presented, the Court will determine if the Conservatorship is necessary and, if so, what authority is granted to the Proposed Conservator. An Order Appointing Probate Conservator of the Person and/or Estate is then drafted and submitted to the Court for the Judge’s signature. Following the Order being granted, the Conservator then files a corresponding document called Letters of Conservatorship. This document becomes the Conservator’s “badge of authority” to present to doctors, hospitals, care facilities, and financial institutions, as applicable, when they are making decisions on behalf of the subject of the petition, now referred to as the Conservatee.
The acts of the Conservator are carried out under the Court’s supervision; they must be accounted for and reported to the Court for the first year of the established conservatorship and then every two years afterwards.
Contact The Law Office of Matthew C. Yu
The lawyers at The Law Office of Matthew C. Yu has years of experience in assistance with conservatorships and guardianships for California residents. We are knowledgeable about the legal processes that you must complete to ensure desired financial and personal well-being. Call our office in Torrance, California, at 310-891-0016. Fill out our online contact form for a personal consultation.
1 named after the Lanterman–Petris–Short Act of 1967