When an adult over the age of 18 cannot care for themself or their finances, a judge can appoint a conservator to be responsible for their (the conservatee’s) matters. In California, a probate conservator can be assigned to a person to protect their interests or to the estate to manage the conservatee’s financial matters, including paying bills, collecting and allocating their income, and dispersing funds appropriately. A probate conservator is generally a relative of the conservatee. However, the judge can appoint a Public Guardian to the position if they determine that there are no other responsible or appropriate options.
Probate conservatorship comes into play for families and friends of disabled individuals, or those caring for elderly or aging loved ones. When a person becomes unable to competently care for their needs and financial concerns, a probate conservatorship allows someone to step in and manage those for them.
Advance planning to determine the circumstances in which you would need to apply for a probate conservatorship for your loved ones, or could create protections that would help you avoid the need to petition the courts to be appointed as a conservator. Discussing your options and concerns with an estate attorney at The Dayton Law Firm, P.C. can give you peace of mind and a clear plan of action.
What Is a Probate Conservatorship in California?
Under the California Probate Code, a conservatorship occurs when the court system appoints a conservator to oversee the financial interests and/or care of an adult individual (the conservatee) who is unable to manage them on their own. During the conservatorship, a court investigator will meet annually with the conservator, the conservatee, and any person or agency providing services to the conservatee to ensure that the conservatee’s needs and interests are being managed appropriately.
A probate conservatorship covers an adult over the age of 18 who cannot care for their own personal or financial needs due to a physical injury, disease such as dementia or Alzheimer’s, or a situation that makes them vulnerable to undue influence. In the case of a developmentally disabled conservatee, a type of probate conservatorship known as a limited conservatorship would be applicable.
Suppose the conservatee has a severe mental illness such as schizophrenia, bipolar disorder, or another severe biological brain disorder that requires care in a locked facility or prevents them from managing their personal or financial affairs. In that case, the courts can grant an LPS conservatorship, which is specifically for adults with mental illnesses.
Types of Probate Conservatorships
Probate conservatorships can be for the person, the estate, or both.
If the conservatorship is being put into place to oversee provisions for the health care or other personal decisions of the conservatee, it is a Conservatorship of the Person.
When the conservatorship involves managing property, money, assets, and financial decisions for the conservatee, it is referred to as a Conservatorship of the Estate.
In some cases, such as with conservatees diagnosed with a cognitive disease, such as dementia, that limits their ability to manage both personal and financial responsibilities, a court will grant a conservatorship for both the person and the estate.
General conservatorships are for adults over the age of 18 who have physical injuries or diseases or who are in situations that leave them unable to make their own personal or financial decisions. Limited conservatorships are for adults over the age of 18 who have a developmental disability that limits their ability to manage their personal or financial affairs independently.
When Is Conservatorship Required?
Without advance planning documents, such as a springing power of attorney, if a person becomes incapacitated due to an accident, injury, disability, or cognitive disease, a conservatorship may be required.
Incapacity can happen at any time, and common triggers that might require a conservatorship are dementia, Alzheimer’s, stroke, an accident causing a traumatic brain injury, or the onset of a severe disability.
After a petitioner files for a probate conservatorship, the court is the deciding force on whether a conservatorship is needed. The court will appoint an investigator to interview the prospective conservatee, review medical records, speak with caregivers and family, and determine whether intervention in the form of a conservatorship is needed.
The Probate Conservatorship Process in California
Under the California Probate Code, anyone who wants to assume the role of conservator can file for the conservatorship. However, the petitioner is typically a relative, like a spouse or child, a friend, or a state or local government agency.
At least 15 days before the conservatorship hearing, the petitioner must provide notice of filing the petition to the proposed conservatee and their relatives, including grandparents, parents, siblings, spouse, children, and grandchildren. This notice must be delivered by an adult over the age of 18 who is not the petitioner. When delivering the notice, both the Notice of Hearing and the Petition for Appointment of Conservator forms must be provided.
Court Investigation and Evaluation
During the court’s investigation, they will interview both the petitioner and the proposed conservatee to determine whether the proposed conservatee lacks the capacity to make their own personal or financial decisions. They will also review medical records, make assessments, and interview agencies or other family and friends that are providing care to the proposed conservatee to make their determination.
While evaluating the proposed conservatee, the court investigator will also assess the proposed conservator’s qualifications and review any objections the proposed conservatee or their family might have. This evaluation will determine whether the court finds the proposed conservator suitable and ensures they have no history of financial abuse, fraud, or general misconduct that might exclude them as a conservator.
As part of the evaluation, the court investigator will provide the judge with an impartial analysis of the proposed conservatee and conservator, allowing the judge to make an informed decision and determine whether taking the path of a less restrictive option, such as a power of attorney, would be a better decision for the interests of the proposed conservatee.
The Court Hearing
During the hearing, the judge will review all evidence, the court investigator’s report, analyze any objections raised by the proposed conservatee or their family, and determine whether a conservatorship is needed.
After reviewing all the information, if the court approves the conservatorship petition, it will issue Letters of Conservatorship that grant the conservator legal authority to make decisions on behalf of the conservatee. The court can also enact limitations to restrict the powers of the conservator, depending on the needs and best interests of the conservatee. The petition can also be denied, with the judge recommending less restrictive options such as a power of attorney or supported decision-making in place of a conservatorship.
If the proposed conservatee is in immediate need of assistance, the court can appoint a temporary, usually governmental, conservator to arrange for temporary care, support, and protection of the conservatee and their property until the process to appoint a permanent conservator can be finalized. The powers of a temporary conservator are greatly limited from those granted to a permanent conservator, as they are not intended to create long-term solutions and decisions for the conservatee.
Ongoing Court Supervision
Under California Probate Code section 2401, a conservator must prudently manage the assets and finances of the conservatee, avoiding dealing with companies or investments in which the conservator has a self-interest, and avoiding speculative investments. An Inventory and Appraisal form listing all assets under the control of the conservator must be submitted within 90 days of being appointed, and it must be reviewed by a court-appointed probate referee.
Depending on the structure of the conservatorship, California Probate Code section 2620, the conservator must submit either annual or biennial accounts of income, expenditures, and all financial transactions for review by the courts.
The petitioner filing for conservatorship must pay all the court fees required for filing, which is usually in excess of $400 in California. Depending on the value of the conservatee’s assets, the court might also need the conservator to post a bond to show good faith and intentions towards the conservatee’s best interests. The courts retain oversight of the conservatorship and require regular accountings of the financial transactions performed by the conservator on behalf of the conservatee. Large financial transactions, such as real estate deals, also require court approval before they can be performed.
Downsides of Probate Conservatorship
Probate conservatorship can be a useful way of handling a loved one’s affairs for them, but it does have drawbacks. When determining whether a probate conservatorship is the best strategy, estate planning attorneys such as the ones at The Dayton Law Firm, P.C. can help you weigh options to make an informed decision.
Emotional and Financial Costs
Petitioning for conservatorship is a long and public process that can add to the stress of seeing to a loved one’s needs. After filing for a conservatorship hearing, it can take 45 to 60 days before the hearing occurs. During this time, all relatives of the conservatee and the conservatee themselves must be informed at least 15 days in advance of the hearing so they can file objections if needed.
There is no guarantee that the process will be resolved quickly, as there are often court delays, and the investigation process done by the court could take longer than planned, depending on the complexity of the proposed conservatee’s needs.
Over time, court and legal fees accumulated by the conservatorship process, with the annual filings and reviews, and the court oversight over significant financial or medical decisions will add up, and can be quite costly and taxing. These fees are typically paid by the conservatee’s estate, but if the funds are not available to cover the costs and maintain the health and interests of the conservatee, the conservator will have to assume the financial obligation.
Loss of Autonomy for the Conservatee
The conservatee, once the conservatorship is in effect, will lose their decision-making rights in line with the specifications of the conservatorship. For individuals who have lost their capabilities to make their decisions due to injury, age, or disease, this can be an immense blow to their dignity and sense of self. This can lead to breakdowns in familial relationships, especially when a child has to assume control of a parent’s decisions.
Family Conflict
Whenever finances are involved, there is always a risk of disputes between involved parties, and a conservatorship is no different. If the conservator makes a decision that other family members or friends of the conservatee disagree with, arguments over control and the decisions can erupt, causing strife and contention amongst individuals. In some cases, a disagreeing party might contest the decisions in court and request a conservatorship modification under Probate Code section 1861. This will increase legal costs and court fees, as the conservator will have to argue against the claims and provide evidence to justify why the conservatorship should remain unchanged.
How to Avoid Probate Conservatorship Through Estate Planning
Estate planning while in a state of sound mind can help individuals avoid probate conservatorships in the event they are incapacitated and unable to make their own decisions.
An estate attorney at The Dayton Law Firm, P.C. can walk you through your options in estate planning that will ensure that your wishes are carried out.
Durable Power of Attorney for Finances
Drafting a Durable Power of Attorney to allow a trusted person to handle your financial decisions in the event you are incapacitated can protect your financial interests and ensure your wishes are followed. The Durable Power of Attorney must be drafted while you still have the capacity to make sound decisions, so it won’t be contested in court, and your wishes are made clear. In California, you determine the scope of the Durable Power of Attorney. It can be as broad or specific as you wish, and an estate attorney will walk you through the best options for your situation.
Advance Health Care Directive (Medical Power of Attorney)
A Medical Power of Attorney protects your wishes for your healthcare and end-of-life care should you be unable to express them when the time comes. Ensure that the agent you name is trustworthy and willing to set emotion aside to fulfill your wishes as they are laid out in your advance health care directive. Your Medical Power of Attorney can specify what actions your agent is authorized to make for you, including end-of-life care, surgical procedures, diagnostic tests, or choosing a medical facility for your care.
Revocable Living Trusts
A revocable living trust allows you to specify your wishes for how you want your assets managed in the event of incapacity or your death. It allows you to remain in control of your assets until you can no longer, at which point management will pass along to your named alternate trustees.
Once an individual passes, the successor trustee(s) named in the revocable living trust will assume management of the trust’s assets and ensure they are managed according to the terms of the trust and are dispersed as you wished to subsequent beneficiaries.
Creating a revocable living trust allows you to avoid both probate and conservatorship. The trust stipulates how your assets are to be managed and dispersed at the time of your death, eliminating the need for a probate process to determine the correct allocations. It also states how your assets are to be handled in the event you are incapacitated, avoiding conservatorship to manage those decisions, as they’ve already been made and recorded in the trust.
Naming Agents and Trustees Wisely
It is paramount that you choose responsible individuals or a professional agency or law firm to act as your trustees or agents in the case of incapacity. They will make financial and personal decisions on your behalf, and you need to be able to trust they will act in your best interest.
In the case that one of your named trustees or agents might become unavailable, have a list of successor or alternate trustees listed in your estate planning documents so there is no confusion or uncertainty, and conservatorship can be avoided.
Joint Bank Accounts and Beneficiary Designations
A joint bank account inherently gives another person equal control over the finances in the account, which is beneficial when your goals and interests are aligned. Still, it can be detrimental if your decisions are in opposition.
You must also be careful when designating a beneficiary on an account, as a trust does not supersede a pay-on-death beneficiary designation on an account. If the intended purpose of appointing someone as a POD beneficiary is to avoid probate, ensure they can be trusted to fulfill your wishes when it comes to allocating estate assets, including on the POD account, once you pass.
Setting Up a Caregiving Plan
As part of your estate planning, ensure that caregiving plans are detailed in the form of written instructions. Review them with an estate attorney so all housing arrangements, emergency contacts, and care wishes are documented and clear for your agents to follow.
Long-Term Care Insurance and Benefits Planning
Including long-term care insurance and benefits in your estate planning is a prudent decision. Having insurance as a financial support for your long-term care needs will reduce your vulnerability, which can help you avoid court intervention in the form of a conservatorship.
When Conservatorship Might Still Be Necessary
There are instances where, even with proper estate planning, the court may still decide that a conservatorship is necessary. These instances can include elder abuse, undue influence, familial disputes, or not finalizing your planning.
Lack of Planning Before Incapacity
Suppose no estate documents exist to express your wishes. In that case, a conservator might need to be appointed to manage your affairs, assets, and look out for your best interests. When urgent action is needed, families can petition the court to appoint a temporary conservator to oversee a person or estate until a formal conservatorship can be established.
Suspected Financial Elder Abuse or Undue Influence
If a family member or friend suspects financial elder abuse or undue outside influence affecting an incapacitated individual, they might petition for a conservatorship. One of the purposes of a conservatorship is to protect a vulnerable adult from exploitation, neglect, or financial mismanagement by family or acquaintances who are seeking to abuse their relationship for selfish purposes.
Disputes Among Family Members
In cases of severe family conflict, a petitioner outside the conflict might reach out to the courts for assistance. Conservatorships can be administered by a public guardian, who will serve as a neutral supervisor appointed by the court to manage assets and avoid familial conflict.
How a San Jose Estate Planning Lawyer Can Help
The Dayton Law Firm, P.C., specializes in estate planning and will provide comprehensive guidance on POAs, how to draft advance directives, and establish a trust that will protect your assets and enforce your wishes. Estate planning is complicated, but you don’t need to navigate it alone. The attorneys at The Dayton Law Firm, P.C. will guide you through every step, ensuring you feel confident and secure.
Neither laws nor life are static, and as circumstances and the legal code change, it is essential to have a trusted attorney review your estate documents to ensure your wishes are accurately expressed and your documents remain current with the law.
Conservatorship petitions can be costly, stressful, and arduous. Should intervention become unavoidable, The Dayton Law Firm, P.C. can represent you during the process to make it a little easier. Our estate planning attorneys will guide you through each step to avoid delays and issues that might result in further disagreements or troubles.
Frequently Asked Questions (FAQs)
Is conservatorship the same as guardianship in California?
No, conservatorships are for adults over the age of 18 who have been incapacitated; guardianships are for minor children who have parents unable or unwilling to take care of them.
Can I avoid conservatorship just by having a will?
No, having a will on its own will not help you avoid conservatorship. Full estate planning, including POAs, trusts, and advance health care directives, can help you avoid conservatorship.
What if my parent already has dementia—can they still sign a power of attorney?
They might be able to, it depends on the degree of dementia and their legal capacity. Consult with an attorney and medical provider to determine the answer for your specific case.
Who monitors the actions of a conservator?
The court system monitors the actions of a conservator and regularly reviews the actions of the conservator and whether the conservatorship is still required.
Can a conservatorship be challenged or terminated?
Yes, they can be challenged or terminated.
Plan Now to Protect Your Future
Proactive estate planning now will help you avoid unnecessary and costly court involvement. Using the legal guidance of the experienced estate attorneys at The Dayton Law Firm, P.C., will help you navigate comprehensive estate planning to protect your assets and enforce your financial and personal care wishes. Contact The Dayton Law Firm, P.C. today to utilize their elder care and estate planning services and take the stress out of future care needs.