Conservatorships

If a Conservatorship is Needed
Sometimes, life doesn’t work out the way we would like. A tragic accident… a sudden illness… dementia. Incapacity can happen to any family member, friend, or client at any time.

It can be sudden or progressive, and it can come and go. Incapacity may not be obvious; a person may be considered incapacitated if that person cannot effectively communicate, has trouble making decisions, or is susceptible to financial abuse or fraud. The term “incapacity” can encompass the inability to make contracts, to make a will, or to make gifts or medical decisions. We can use a conservatorship to develop a plan based on what the individual needs, and what the individual can do, i.e. his or her “capacity.”

With proper incapacity planning, individuals named in estate planning documents as fiduciaries can make necessary care, financial, and medical decisions on behalf of the incapacitated person without obtaining additional authorization from the court. Without proper incapacity planning documents however, even a spouse or adult child cannot make care, financial and healthcare decisions on behalf of an incapacitated individual.

In such cases, a conservatorship proceeding is necessary so that someone else is able to provide for the needs of the incapacitated person. In some situations, even the best preparation is inadequate, as when it becomes necessary to have a person’s loved one placed in a secure facility because of advanced dementia.

Types of Conservatorships

A probate conservatorship is a court proceeding where a judge appoints a responsible individual (the “conservator”) to handle the affairs of the incapacitated adult (the “conservatee”). This can include managing his or her finances, making medical decisions for them, choosing where they live, who cares for them, and whether the conservator can attend school.

California probate conservatorships fall into two categories: the “conservatorship of the estate” – to take care of a person’s financial needs, and the “conservatorship of the person” – to manage the person’s healthcare, living, educational and social needs. One person can serve as the conservator of both the person and the estate.

Conservatorships can also be “general” or “limited”. General conservatorships take away most rights from the conservatee and give them to the conservator, where a limited conservatorship takes away only those rights specified in the court order from the conservatee. The court can create a limited conservatorship for an individual who is developmentally disabled.

These conservatorships are subject to special procedures to assure that the conservatee can retain personal autonomy. Where it is necessary to appoint a conservator for a person who is not developmentally disabled but who can exercise many functions, the court can appoint a general conservator but can reserve certain powers to be exercised by the conservatee.

Alternatively, someone who has advanced dementia, is comatose, or has no comprehension of their surroundings will likely need a full general conservatorship.

Conservatorships can be very complex proceedings, and involve many different court forms, hearing dates, and court deadlines. If you think that a loved one might need, or might benefit from, a conservatorship, please contact us to assist you.

We understand that having a loved one with a diminished capacity can be a challenge. We will be happy to help guide you through the process.