CONSERVATORSHIP
WHAT IS A CONSERVATORSHIP?
A conservatorship is a legal proceeding before the Probate Court where a judge appoints a responsible person or organization (called the “conservator”) to care for an adult[1] (called the “conservatee”) who cannot care for himself or herself or cannot manage his or her financial affairs. See Probate Code § 1800 et seq. A conservator of the person is responsible for making sure a conservatee has proper food, clothing, shelter, and health care. Probate Code § 1801(a). A conservator of the estate takes charges of the conservatee’s financial affairs. Probate Code § 1801(b). The court may appoint a conservator of both the conservatee’s person and estate.
ARE THERE ALTERNATIVE WAYS TO PROTECT THE CONSERVATEE?
A Probate Conservatorship is a permanent appointment and severely restricts what the conservatee may do on his or her own for the remainder of their life or until the conservatorship is revoked. Courts cannot take this drastic step if there is another, less restrictive way to protect the individual.
“No conservatorship of the person or of the estate shall be granted by the court unless the court makes an express finding that the granting of the conservatorship is the least restrictive alternative needed for the protection of the conservatee.” Probate Code §1800.3(b)(emphasis added). If the Court finds that a conservatee can be protected by a reliable Agent under a Power of Attorney or a trustee of a trust holding the conservatee’s assets or in some other way, a conservatorship will not be established because one of these less restrictive alternatives is available.
NOTE: We recommend that everyone over 18, no matter what age you are, have both a medical and financial power of attorney in place so that if anything happens to you whether it be temporary or permanent you do not have to participate in protracted and often times expensive conservatorship proceedings.
WHO CAN START A CONSERVATORSHIP PROCEEDING?
There are a number of people who can file for a conservatorship of another (Probate Code § 1820(a):
- The spouse or domestic partner of the proposed conservatee;
- A relative of the proposed conservatee;
- Any interested state or local entity or agency;
- Any other interested person or friend of the proposed conservatee; and
- The proposed conservatee, himself or herself.
WHO CAN ACT AS A CONSERVATOR?
In appointing a conservator, the court is guided by the best interests of the conservatee. If the conservatee has the capacity to do so, he or she may nominate someone to serve as conservator. If not, the law provides a list of preferences of persons to act. Probate Code § 1812. The order of preference is:
- Spouse or domestic partner
- Adult child
- Parent
- Sibling
- Any other qualified person
- Public Guardian
HOW DOES A CONSERVATORSHIP PROCEEDING BEGIN?
Conservatorship proceedings begin with payment of a filing fee and filing a petition and several other documents in the Probate Court for the County where the proposed conservatee resides. Probate Code § 1821 et seq. The petitioner must use Court-authorized forms and some Counties have local forms too. Counsel can prepare the specific documents for you. In every case you will need a Capacity Declaration (Form GC-335) completed by a physician, psychologist or religious healing practitioner. Your case will not proceed until a signed Capacity Declaration is filed with the Court.
After the petition is filed, the petitioner must arrange for the petition and initial papers to be personally served on the proposed conservatee and mail notice about the hearing and a copy of the petition on the proposed conservatee’s spouse or domestic partner and relatives specified by law.
Once the papers are filed and served, the Court will set a hearing on your petition.
WHAT IS A TEMPORARY CONSERVATORSHIP?
Permanent conservator appointments take a long time. If you have an emergency situation where a conservatee needs protection right away, you should request a Temporary Conservator be appointed until the case is fully resolved. Probate Code § 2250 et seq. It is a good practice to file for a Temporary Conservatorship at the time you file your permanent conservatorship petition as permanent proceedings generally take several months at a minimum. If the Court appoints a temporary Conservator, the Court will issue Letters of Temporary Conservatorship to enable the Temporary Conservator to act until a decision is made on the permanent conservatorship.
WHAT HAPPENS AFTER I FILE A CONSERVATORSHIP PETITION?
One of the first steps in the process is the appointment a Court Investigator for your case. The Court Investigator will talk to the proposed conservatee and others who may be familiar with the conservatee’s condition. The court will assess the conservatee’s estate for the cost of this investigation unless the court decides that the assessment would be a hardship for the conservatee.
WHAT WILL HAPPEN AT THE HEARING ON THE PETITION?
After the Court Investigator’s Report is filed with the Court, the case will proceed to a hearing. The proposed conservatee must go to the hearing unless he or she is excused because of illness. Probate Code § 1825. At the hearing, a judge will determine if everyone has been properly notified and if a lawyer needs to be appointed to represent the proposed conservatee. Probate Code § 1825 (i) and (j). Once the judge is ready to make a decision, he or she may grant or deny the conservatorship. If the judge grants the petition, an order appointing the conservator will be filed and Letters of Conservatorship will be issued. If there is an estate, a surety bond must be filed unless the court orders the conservatee’s bank accounts to be frozen.
WHAT HAPPENS AFTER A CONSERVATOR IS APPOINTED?
The Court will order the appointed Conservator to purchase the State Handbook for Conservators which sets forth the duties and responsibilities of the Conservator. From the time of the appointment forward, the conservator of the person and estate of a conservatee has the responsibility for their care and all their financial affairs. While performing these functions, the Conservator remains under the supervision of the Court and the first thing he or she will be required to do is file an Inventory and Appraisal of the Conservatee’s property within 90 days of the appointment. Probate Code § 2610. At the end of the first year, and every year thereafter, the Conservator must file an annual accounting with the Court of all financial transactions performed on behalf of the conservatee. Probate Code § 2620.
CAN A CONSERVATOR BE REMOVED?
Yes. A conservator who is not acting in the best interests of the conservatee or has failed to fulfill their responsibilities may be removed. Probate Code § 2650. Failures may include the conservator’s failure to use ordinary care and due diligence in the management of the conservatee’s money and property or failure to file the required Inventory and Appraisal or annual accountings. Misappropriating the conservatee’s money, acting in the conservator’s self interest instead of the interests of the conservatee or continued failure to perform required duties are also grounds for removal.
Any family member or friend of the conservatee or “interested person” may bring a petition to have the conservator removed on any of these grounds. Probate Code § 2651.
[1] Where the individual requiring protection is a minor, a guardian may be appointed with essentially the same powers, authority, and responsibilities as the conservator of an adult. Probate Code § 1510 et seq.
