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Conservatorships and Guardianships: What Are They?

When a person is physically or mentally ill or has sustained a serious injury, that person may be unable to care for himself or manage his own affairs any longer. If the incapacitated person has a plan in place using tools like a power of attorney and living trusts, then the agent designated in the power of attorney and the trustee named in the living trust will be able to take over making decisions and managing the incapacitated person’s assets. In many cases, however, no plans will be in place in case of incapacity and conservatorship or guardianship will be necessary.

As the California Judicial Branch explains, “A conservatorship is a court case where a judge appoints a responsible person or organization (called the “conservator”) to care for another adult (called the “conservatee”) who cannot care for himself or herself or manage his or her own finances.”  Conservatorship is created under the California Probate Code and it is the probate court that determines if a conservatorship is needed and who should act as a conservator.

Conservators can be appointed in situations where someone is physically or mentally ill. If conservatorship is required immediately, the court may appoint a temporary conservator to fill the decision-making role on behalf of an incapacitated person until a general conservator can be appointed. General conservators are appointed when an adult is unable to care for himself and unable to care for his finances. Courts can also create a limited conservatorship when an adult is mentally ill and unable to fully care for himself but does not need the higher-level of assistance a general conservator provides.

Many different people who are closely related to a person who is incapacitated or who have an interest in protecting an incapacitated person can file for conservatorship. This could include a spouse or domestic partner, another relative, a state agency or local entity, a friend who is concerned about the proposed conservatee, or the conservatee himself.  The court will act in the best interests of the conservatee in determining who should be appointed to act on his behalf.

The conservator or guardian has a fiduciary duty to also act in the best interests of the conservatee, but unfortunately this does not always happen. If a conservator takes assets that should belong to the conservatee or makes decisions not to benefit of the conservatee but instead to advantage the conservator, this is a breach of duty that can result in legal action being taken against the conservator.

A San Francisco conservatorship attorney at the Evans Law Firm can provide assistance with all legal matters related to conservatorship. We can assist with going to court to get a conservator appointed for an incapacitated person, and we can help a conservator to understand and fulfill his or her obligations. We can also provide help in circumstances where a conservator commits financial abuse by breaching a fiduciary duty and mismanaging or misappropriating the assets of the conservatee.  To find out more, reach out to us online.

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