Many are under the foolish belief that incapacity or incompetency will never happen to them. However, various statistics indicate otherwise. According to the Center of Disease Control and Prevention, 2 in 5 elderly adults in the United States will have a serious disability by the age 65 or older. For some seniors, the disability or disabilities will progress to the point of mental and physical incapacitation. If this occurs and the individual doesn’t have the proper estate planning documents, then their family may be forced to pursue a conservatorship in probate court.
Petitioning probate court for conservatorship can be an expensive, arduous, and for some a humiliating process. The proceedings are public, so the conservatee’s assets will become a matter of public record. In addition, the conservator will be forced to continuously return to court for approval of certain transactions, which may require additional hearings and fees. These costs—including attorney’s fees, filing fees, and investigator’s fees—can aggregate quickly and become a financial burden on the family.
In California, if people are found by a judge to be unable to care for themselves or their finances, the court will appoint a conservator to care for that person and/or their finances. This arrangement is known as a Conservatorship in which the person assisting is the Conservator and the incapacitated person is the Conservatee. The legal duties and responsibilities of the conservator are prescribed by law and subject to the ruling of the courts. Any changes in court Conservatorship must be filed with the probate court, which can be an arduous and expensive process.
Ventura Conservatorship Lawyers, CA | Probate Conservatorships in California
At Botti & Morison Estate Planning Attorneys, Ltd. we assist clients in all matters related to estates and probate including conservatorship litigation and administration. Our attorneys also have in-depth experience advocating for their clients’ best interests through litigation if a conservatorship-related dispute arises in probate court.
Schedule your first consultation with either Chris Botti or Paul Morison by calling our offices at (877) 585-1885. Botti & Morison Estate Planning Attorneys, Ltd. has several locations including Ventura, Westlake Village, Santa Barbara, Valencia, Bakersfield, and San Luis Obispo, California.
Information Center:
- What is a Conservatorship in California?
- Difference Between Conservatorship and Guardianship
- What Does a Conservator Do?
- Qualifications to Serve as a Conservator in CA
- How to Become a Conservator in California
- Alternatives to Conservatorship
- Additional Resources
What is a Conservatorship in California?
A Conservatorship is a protective court proceeding designed to protect an elderly or dependent adult who is unable to care for themselves or their finances. These proceedings also ensure that the elderly or dependent individual is protected from fraud and/or financial elder abuse. The court will appoint a conservator for either the conservatee’s person or their estate, and in some cases the same conservator will be responsible for both.
- Conservator of the Person – In this arrangement the conservator is responsible for ensuring the conservatee receives proper care. They must provide suitable food, clothing, shelter and health care to the conservatee as they are unable to care for themselves. In some conservatorships, the conservator may also need to make important medical decisions for the conservatee if they are unable to answer critical questions such as inquiries regarding life support or organ donation.
- Conservator of the Estate – Conservators of the estate handle all financial responsibilities for the conservatee. Duties include paying off bills, making effective investments, preparing and filing taxes on behalf of the conservatee, protecting income and property, and any other financial concern. The conservator will also be required to make regular reports of the conservatee’s financial accounts to probate court and any other interested parties who appropriately request it.
Difference Between Guardianship and Conservatorship in California
Conservatorships and guardianships are similar as they are both legal tools that can be used to help protect a person’s wellbeing. What separates the two is who the court order protects. In California, a guardianship is when the court appoints a family member or other individual with legal authority to represent and manage the affairs of a minor under the age of 18. This vastly contrasts from a conservatorship, where the protected individual is an incapacitated adult.
Guardianship proceedings are heard in probate court if both parents have died or they are unable to provide for the child due to incapacity. A guardian may be named in the parent’s last will and testament, trust, or a third-party may petition for guardianship with the courts. Once a guardian has been appointed by the court, they will have the same legal rights as any custodial parent would including deciding where the child lives or where they’re educated.
What Does a Conservator Do?
Your duties as a conservator will depend on whether you’re a conservator of the person or estate. The duties for a conservator of the person are listed below:
- Make arrangements for or decide where the conservatee will live
- Arrange for their protection and care
- Make arrangements to ensure the conservatee has the following:
- Clothing
- Personal Care
- Shelter
- Recreation
- Housekeeping
- Transportation
- Well-being
- Meals
- Health Care
- May be required to report on the status of the conservatee to probate court
Listed below is a brief summary of your duties if you’re a conservator of the estate.
- Locate and secure the conservatees assets
- Pay all the conservatee’s bills
- Invest in the conservatee’s money properly
- Protect the conservatee’s assets
- Manage the conservatee’s overall finances
- Collect income due to the conservatee
- Make a budget to determine what the conservatee can afford
Qualifications to Serve as a Conservator in California
When appointing a conservator, the court is guided by the best interests of the conservatee. If the conservatee would like to nominate a specific person, the court will appoint that person unless evidence exists the proposed conservator is not in the conservatee’s best interests. However, if the conservatee is unable to nominate anyone, then California law provides a list of preferences the court generally follows when determining who the best conservator will be.
Listed below is the State of California’s order of preference for conservatorships.
- Surviving spouse or domestic partner
- Adult child
- Parent
- Sibling
- Any other person authorized under the law
- Public Guardian appointed by the State
There are several tasks you must complete before you can qualify as a conservator of the conservatee’s person and/or estate. These include:
- Signing an acknowledge you received a statement that describes your duties and liabilities and received your Handbook for Conservators.
- Obtaining a bond, if one is required. This is essentially a security deposit designed to safeguard the proposed conservatee’s assets in case the conservator is financially irresponsible or commits fraud.
- Signing an oath or affirmation stating you’ll perform your duties under the law
- Filing all papers related to conservatorship with the clerk and satisfying any other requirements they may have.
How to Become a Conservator in California
In order to become a conservator, you’ll have to have a clear understanding of the process. You must prove the conservatee is either unable to care for their own personal needs or finances by clear and convincing evidence, which is a standard of proof meaning you must show to the court it’s highly probable the proposed conservatee requires a conservator.
You’ll first have to file a petition for conservatorship with the appropriate probate court. The conservatee will also be served with court papers and they are typically required to attend the first court hearing as well. However, if a doctor states under penalty of perjury the conservatee is medically unable to attend, the court can then waive this requirement.
Once the case is filed, a court investigator will be assigned to interview the proposed conservatee, their family, and any other interested parties. After their investigation is complete, the court investigator will file a report with a commendation about whether the conservatorship is appropriate. It’s important to note this report is by no means conclusive, but often the judge will rely on it.
In addition, you’ll be required to file a capacity declaration, which is completed by a doctor who has thoroughly examined the physical and mental health of the conservatee. The evaluation is based on the conservatee’s mental functions in four areas which include information processing, thought disorders, alertness and attention, and the ability to modulate mood and affect. The report should also include whether the proposed conservatee can give informed consent to medical treatment.
Alternatives to Conservatorship
Pursuing conservatorship for a family member or loved one can be an arduous and expensive process. Although petitioning for conservatorship is incredibly necessary in some situations, you can plan ahead to avoid the process entirely. With the proper estate planning documents in place, you and your family can bypass conservatorship but still retain the legal authority to make personal and financial decisions on the conservatee’s behalf.
- Advance Health Care Directives – With this document a conservatorship of the person can be avoided. You can name an individual to act as your “health agent.” The document allows your health agent to make all health decisions for you in the event you’re too incapacitated to make them on your own. The scope of your agent’s authority can be limited if needed and you can include specific instructions about any aspect of your health care to ensure your wishes are followed.
- Durable Power of Attorney for Finances (DPOA) – If you have this document completed as part of your estate plan, your family can avoid filing for conservatorship over your estate. A Durable Financial Power of Attorney essentially grants another person the right to act on your behalf in all financial matters. This person is known as your “attorney-in-fact” and can pay bills, hire at-home medical help, and handle all matters related to finances for you.
- Revocable Living Trust – A revocable living trust has built in avoidance of conservatorship and will serve as an alternative to a conservatorship for assets placed in trust such as bank accounts, real estate, and any other assets under control of the successor trustee. The appointed successor trustee will have control over the trust if the person who created the trust is incapacitated or too incompetent to make decisions.
Additional Resources
California Handbook for Conservators – Visit the official website for the California courts to read a document prepared by the Judicial Council of California called a Handbook for Conservators. Access the document to learn the rights of the conservator and conservatee, the different types of conservatorship, how to qualify for conservatorship, the role probate court plays in conservatorships, how to end a conservatorship, and how to change a conservator.
Conservatorship Information | Ventura County – Visit the official website for the Superior Court of California for Ventura County to read up on various information available about conservatorships. Access the site to read a general overview regarding conservatorships, how you can file a remote appearance for a hearing, as well as use their self-help resources.
Adult Conservatorship Attorney, California | Ventura
If you need assistance with a conservatorship matter in California, contact the probate and estate lawyers at Botti & Morison Estate Planning Attorneys, Ltd.. Our attorneys can effectively represent your legal needs as a conservator, conservatee, or a concerned family member. We can walk you through the process of filing for or contesting a conservatorship step-by-step and ensure you are properly informed of all your legal options. Call Botti & Morison Estate Planning Attorneys, Ltd. today at (877) 585-1885 to learn more.
Botti & Morison Estate Planning Attorneys, Ltd. accepts clients in all parts of California including Ventura County, San Luis Obispo County, Los Angeles County, Kern County, and Santa Barbara County, California.