Kosloff & Greenwood, 
A Professional Corporation 
 
  
 

Probate Conservatorships

 

 

 

A. Conservatorship Overview

     A conservatorship is a legal proceeding in which an adult "conservator," or caretaker, is appointed by a judge to manage the affairs and to care for another adult "conservatee" whom the judge determines is unable to perform these tasks for themselves. There are two types of conservatorships: 1) a conservatorship of the person, and 2) a conservatorship of the estate. Conservators of the person ensure that the conservatee is properly fed, clothed, and housed. Conservators of the estate are responsible for managing the conservatee’s money and other property. It is possible for a conservator to be either of the person, of the estate, or both.

  • Conservator of the Person
  • -Arranges care and protection for the conservatee
  • -Determines where the conservatee will be housed
  • -Takes care of the conservatee’s Health Care, Meals, Clothing, Personal Care, and other life necessities
  • -Handles Transportation and Recreation for the Conservatee
  • Conservator of the Estate
  • -Manages the Finances of the conservatee
  • -Locates and Assumes Control of the conservatee’s assets
  • -Collects Income, Pays Bills, and Creates Budgets for the conservatee
  • -Handles Investment and Asset Protection of the conservatee 
  • B. Why a Conservatorship

         There are several situations in which the need for a conservatorship may arise. When friends or family members become incapacitated by illness, accident, or advancing age, it may be appropriate to petition the court to appoint a conservator, who will then become responsible for taking charge of their medical and/or financial affairs. Many conservatees are elderly people, who may be suffering from dementia or Alzheimer’s disease. Other conservatees may be younger, with temporary or permanent mental or physical disabilities.

    C. Types of Conservatorships

         There are four main types of conservatorships: General Conservatorship, Limited Conservatorship, Temporary Conservatorship, and Lanterman-Petris-Short Conservatorship (LPS). The first three are considered Probate Conservatorships, because they are governed by the California Probate Code.

    • General Conservatorship
    • -This type of conservatorship is typically used for either older people who may have significant limitations due to aging, or younger people who may have suffered serious impairment from an accident
    • Limited Conservatorship
    • -These are typically set up for adults with developmental disabilities who cannot fully care for themselves, yet at the same time do not require the degree of care provided under a general conservatorship
    • -The developmental disabilities covered include mental retardation, epilepsy, cerebral palsy, and autism that began before the proposed conservatee’s 18th birthday
    • For more information and a further description of Limited Conservatorships please,  click on the tab above or below marked Limited Conservatorships.
    • Temporary Conservatorship
    • -These are set up when someone needs immediate help, such that it would be harmful to wait until the conclusion of the conservatorship proceeding to appoint a conservator.
    • -The judge appoints a temporary conservator for a specific period of time until a permanent conservator can be appointed.
    • -These can apply to both conservatorships of the person and estate
    • -The duties of temporary conservators include arranging for temporary care, protection, and support of the conservator, as well as protecting the conservatee’s property from loss or damage
    • LPS Conservatorship
    • -This is not a probate conservatorship.
    • -These are created to arrange for certain kinds of restrictive living arrangements and mental health treatment for people who cannot provide for their own needs for food, clothing, or housing, due to mental disorders or chronic substance abuse problems, and who will not acquiesce to treatment voluntarily.
    • -These differ from Probate Conservatorships in that a local government agency initiates the appointment process.

             

    D. Qualifications- Who Can Become a Conservator

         People are appointed conservators over someone else because that person requires some sort of special care. Relatives, spouses, close personal friends, neighbors, or even professional caretakers who wish to care for the conservatee may be appointed as conservator of that person. There are, however, procedural matters and additional qualifications which prospective conservators need to meet to be able to serve.

    • The court requires the proposed conservator to file a document entitled a "Capacity Declaration" along with his or her petition  for conservatorship.  A Capacity Declaration is a standardized form with a number of questions pertaining the proposed conservatee’s  mental, emotional, and physical state, and is filled out by licensed California physician or psychologist
    • Next, the court appoints an investigator from the Office of Probate Investigations to conduct interviews of all the interested parties, and to make a recommendation as to whether or not a conservatorship is appropriate or necessary.
    • After a court hearing on the prospective conservator’s petition for conservatorship, the judge must sign and the court must file its order appointing him or her as conservator.
    • The newly appointed conservator must sign an acknowledgment of receiving a statement describing the duties and liabilities of the office of conservator, as well as Handbook for Conservators manual, provided by the Judicial Council of California.
    • The newly appointed conservator must obtain a bond, when one is required. Bonding is very common in conservatorships of the estate to ensure proper performance of the duties of the conservator The newly appointed conservator must sign an oath or affirmation that he or she will perform their duties as a conservator according to law. The newly appointed conservator must file these papers with the court clerk.
    • To complete the process, the conservator must file a form called the Letters of Conservatorship with the court. Certified copies of this form can be obtained from the court clerk, and must have an original seal of the court on them to be valid. These copies are used whenever someone requires official proof of authority to act as conservator. They must be recently certified to be usable.

    E. Conservatee’s Powers that Require a Certified Copy of the Letters of Conservatorship

         The following duties require a certified copy of the Letters of Conservatorship to be performed:

     -Changing the address for the conservatee at the post office

    -
    Opening a bank account for the conservatee’s money

    -Transferring the conservatee’s bank accounts, mutual funds, stocks, and bonds in one or more accounts into your name as conservator.

    -Getting into the conservatee’s safe deposit box and opening a new safe deposit box in your name as conservator.

    -Proving to doctors and hospitals that you are authorized to consent to the conservatee’s medical treatment, if the court has given that authority.

    -Signing agreements such as leases and home-care contracts for the benefit of the conservatee.

    -Requesting information about the conservatee’s affairs from government agencies and private businesses, pension plans, and others.

    -Applying for government or other benefits on behalf of the conservatee.

    -Asking other lawyers about many kinds of legal matters concerning the conservatee

    -
    Gathering the conservatee’s assets from anyone who has been holding them for safekeeping. 

    F. Ending the Conservatorship

    Conservatorship responsibilities can end with the following:

    -The death of the conservatee.

    -The judge terminating the conservatorship, either because the conservatee is now deemed able to handle his or her own affairs, or because all of the assets of the conservatorship estate have been expended towards the conservatee’s care.

    -The judge appointing someone else as conservator in your stead.

    Limited Conservatorships
    I. Purpose

    A. Designed for individuals who are Developmentally Disabled

    i. Must have been diagnosed as Developmentally Disabled prior to Age 18

    ii. Can be expected to last indefinitely

    iii.
    Constitutes a substantial handicap

    iv.
    Includes mental retardation, cerebral palsy, epilepsy and autism

    v.
    Can be any handicapping conditions found to be closely related to mental retardation

    vi.
    Is not solely physical in nature

    B.
    Structured to protect and promote the well-being of the individual

    II. The Lanterman Act

    A.
    Civil Rights Act for individuals with developmental disabilities

    B.
    Established Regional Centers to assist families and individuals

    C.
    Established a system for Individual Program Plans (IPP’s)

    III. Medical treatment

    Under the law it is presumed a person over 18 has capacity to make decisions regarding their own medical treatment. A person has capacity to give consent to, or revise, medical treatment if they can do all of the following:

    A. Respond knowingly and intelligently to questions about the medical treatment

    B.
    Participate in the treatment decision by a means of rational thought process

    C.
    Understand all of the following items of minimal basic medical treatment information with respect to that treatment:

    i.
    The nature and seriousness of the illness

    ii.
    The nature of the medical treatment

    iii.
    The probable degree and duration of any benefits, risks, and consequences of lack of treatment

    iv.
    The nature, risks and benefits of any reasonable alternatives

    IV. Limited Conservatorships

    A. A protective judicial proceeding for persons whose developmental disability substantially impairs their ability to care for themselves or their property.

    B.
    Used only as necessary to promote and protect the well-being of the limited conservatee and shall be ordered only to the extent necessitated by an individual’s proven mental and adaptive limitations

    C.
    The individual is not presumed to be incompetent and they retain all legal and civil rights except those the court specifically grants to the limited conservator.

    D.
    The limited conservator oversees the care, custody and control of the limited conservatee, subject to certain limitations ordered by the court.

    V. Types of Limited Conservatorships

    A.
          Of the Person

    i.
    Choice of Residence
    (Cannot be placed in a locked facility without a LPS Conservatorship)i

    i.
    Access to Confidential Records

    iii.
    Contracts

    i
    v. Medical (No treatment with experimental drugs or electric shock treatment or sterilization without court approval)

    v.
    Education

    vi. Marriage decisions

    vii.
    Control over social and sexual contacts

    B.      Of the Estate manage money and other assets and property

    VI. Establishment of a Limited Conservatorship

    A. Requires a Petition to the court. Initial court hearing is usually about 60 days after filing

    B. Conservatee must attend the court hearing unless a doctor certifies they cannot attend for medical reasons.

    C. Can be filed shortly before a person’s 18
    th birthday or anytime thereafter.

    D. A Court Investigator is appointed. They will interview the Conservatee

    E. An attorney is appointed to represent the Conservatee.

    F. A Report from the Regional Center is required.

    G. If Conservatee objects they have a right to a trial by jury

     

     

     

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