When Is A Good Idea To Consult With A Conservatorship Estate Planning Lawyer in California

A conservatorship is a legal agreement that requires a responsible adult to handle a disabled adult's personal care and financial affairs. The conservatee is the individual who is unable to provide for himself and is placed under conservatorship. According to California Probate Code, the conservator is a family member, spouse, or business person who looks after the conservatee. Please keep in mind that in California, a conservatorship must be created by a court case. You might need an Estate Planning Attorney to help you through it.

Find An Estate Attorney for Conservatorships

In California, there are two kinds of conservatorships: limited conservatorship and general conservatorship. The conservatee is considered mentally defective in a small conservatorship. Furthermore, the conservator's authority is restricted to areas that the conservatee may be unable to handle on his or her own. The courts usually prefer restricted conservatorships because they enable conservatees to retain as much freedom as possible.

A general conservatorship, on the other hand, provides the conservatee with a higher degree of treatment. This form of conservatorship is best for someone who is unable to care for themselves or make financial decisions on their own.

To illustrate, a minimal conservatorship is usually filed when a conservatee can handle some but not all aspects of their existence. In a restricted conservatorship, the conservatee's responsibilities are narrowly limited to areas where the conservatee cannot administer on his or her own. The conservatee, for example, may have a mental illness that prohibits them from managing their money, but they may be able to provide for their own physical needs (dressing, eating, etc.). A restricted conservatorship would be appropriate in this case. A general conservatorship, on the other hand, allows for more intensive treatment of the conservatee. This form of conservatorship enables the conservator to take care of the conservatee's personal and financial needs for the most part, although not everything.

A Limited Conservatorship's Principles

In California, a restricted conservatorship is when a court appoints someone to administer the treatment of an adult who lacks the capacity to care for themselves entirely. If an adult is caring for another adult who has special needs, the caregiver may petition a court to name him or her as the person's and/or the estate's conservator.

In California, a limited conservatorship is defined when the adult in need of treatment has a serious or permanent developmental disability caused by a mental or physical deficiency that began before the age of 18. Conditions such as cerebral palsy, epilepsy, or autism can qualify for a restricted conservatorship, but they do not include mental disorders or crippling physical conditions. A small conservator is tasked with assisting the conservatee with matters relating to his or her personal or financial needs.

California has a limited conservatorship framework.

The law in California that provides for the establishment of a restricted conservatorship enables those caring for the conservatee to enable him or her to be active, independent, and self-reliant. This is crucial for a conservator to note because his or her job is that of an advisor, not to take over and run the conservatee's life. Except where the court has awarded the rights to the minimal conservator for the conservatee's defense, the law does not deem the conservatee incompetent, and the conservatee actually maintains all legal and civil rights.

The restricted conservatorship in California can be terminated if a court later determines that the conservatee does not require the services of a conservator. The conservator's authority may be limited or expanded as the court sees fit. When the limited conservator is first appointed, the court conducts an annual review of the limited conservatorship, followed by a two-year review.

Limited conservatorships are divided into two types: limited conservatorships of the individual and limited conservatorships of the assets. In a restricted conservatorship of the individual, the conservator is responsible for the conservatee's daily personal needs, including, if necessary, housing. The conservator of an estate with a small conservatorship looks after the conservatee's financial needs, such as collecting the conservatee's profits.

Where the conservatee has substantial assets, such as in a trust or by inheritance, the conservatorship of the estate is more significant. A restricted conservatorship of the estate is not needed if the conservatee's main source of income is public assistance or wage income. Consider one of our prescreened California Lawyers in your Cal Bar Attorney Search.

You can apply to a court in the county where you reside in California to act as a conservator, or you can be elected as a conservator. You must file multiple documents with the court to qualify for conservatorship, including a petition in which you must justify why conservatorship is important and why no other choices can help. Your Estate Planning Attorney can explain more details on this.

What Is a General Conservatorship, and How Does It Work?

General conservatorships are often used by elderly people who have lost the ability to make decisions about their own medical treatment, everyday care, or financial affairs. A conservatorship of the person may be established by the state, in which the conservator is responsible for the person's physical health, housing, food, and medical care. It can also establish an estate conservatorship, in which the conservator oversees the person's finances and properties.

Conservators have many main duties in a general conservatorship of the person:

• Choosing a residence for the person
• determining the location and timing of the individual's medical care
• Taking care of a person's basic needs, such as food, hygiene, enrichment, socialization, and education
• Conservators are divided into many categories

Conservators over the individual and conservators over the estate are the two forms of probate conservators. The conservator over the individual is responsible for the conservatee's personal day-to-day needs, while the conservator of the estate is in charge of the conservatee's financial affairs. You must apply explicitly for the position of conservator over both the individual and the properties.

Who Is Qualified To Become A Conservator?

If the conservatee is mentally competent, he or she may always appoint someone to be a conservator. The conservatee may also request to be his own conservator. Otherwise, the conservatee's conservatorship can be applied for by the following people:

• spouse or domestic partner, family, or associates of the proposed conservatee
• The entity at the local or state level
• Any third party who is involved

The court chooses a conservator based on the prospective conservatee's best interests, but it can occasionally pursue a choice, such as appointing a spouse over a buddy.

Depending on the needs of the conservatee, the probate court may appoint a conservator of the individual, a conservator of the estate, or both.

• When a judge determines that a person is incapable of caring for themselves, a conservator of the person is appointed to look after and protect them. The conservator is in charge of ensuring that the conservatee has enough food, clothes, shelter, and medical attention. The conservator may need to make important medical decisions for the conservatee, depending on his or her ability to understand and make decisions.
• When a judge determines that the conservatee is unable to manage his or her finances, a conservator of the estate is appointed to handle the conservatee's financial affairs, such as paying bills and collecting a person's income.

Being named as a person's conservator does not automatically make them the estate's conservator. If anyone wishes to be the conservator of both the individual and the estate, they must file a petition for both. If a conservator of an individual later decides that he or she wants to be named as conservator of the estate, he or she may file a new conservatorship petition and ask to be appointed as conservator of the estate.

A conservatorship may be requested by a variety of people:

• The proposed conservatee's spouse or domestic partner
• a close relative of the conservatee
• Any state or local body or organization that is involved
• Any other person who is interested in the proposed conservatee or a friend of the proposed conservatee
• The proposed conservatee, in his or her own right.

The court is motivated by the conservatee's best interests when nominating a conservator. Unless it is not in the proposed conservatee's best interests, if the proposed conservatee has nominated someone (and the proposed conservatee has the mental and physical capacity to express his or her preference), the court will appoint that person as conservator.

If the prospective conservatee has not nominated anyone or is unable to do so, the statute establishes a list of preferences that the court may consider when determining if any of these people are eligible to serve as conservators.

The following is the order of preference:

• Domestic partner or spouse
• A parent
• Sisters and brothers
• Any other person who is authorized by the law
• Public Defender

If the person at the top of the list declines to be the conservator, another person may be nominated.

Regardless of the order of choice, the judge is ultimately responsible for selecting the conservator, and the judge makes this decision based on the best interests of the proposed conservatee.

In California, how can you become a conservator?

1. Submit a Conservatorship Petition

Completing and filing a conservatorship petition is one of the first measures in securing conservatorship in California. These petition papers are lengthy and can be difficult to understand without professional assistance. The papers, for example, provide details about the prospective conservator, the conservatee, the conservatee's immediate family, and the reasons for conservatorship. In addition, the petition must state that there are no other options but a conservatorship. The petition must ultimately be lodged with the municipal court where the proposed conservatee lives. Contact an Estate Lawyer for assistance in all aspects of the petition process, from filling out paperwork to filing them.

2. Send the Notice of Petition to the court.

The court clerk will set a court date after the petition is filed. At this point, a neutral adult must serve notice of the conservatorship petition on the proposed conservatee. They must also provide service to the proposed conservatee's relatives. A court-appointed investigator would also meet with the prospective conservatee and others at this time to gather more information about the conservatee's situation.

3. Attend a Court Hearing

If they are unable to do so, the prospective conservatee must then attend the court hearing. The judge would decide if all family members were duly informed during the trial. A lawyer may also be appointed by the judge to represent the proposed conservatee. Finally, the judge will decide whether to grant or refuse the conservatorship.

In order to file for conservatorship in California, you'll need the following documents.

As previously stated, a California conservatorship needs a large number of papers to be filed with the court. This is one of the most common reasons people seek the assistance of A People's Choice. If you want to file a conservatorship without using an Estate Lawyer, you can contact the local court. They'll tell you what forms you'll need to apply for conservatorship in your particular county. It's important to remember that, while most courts use the same conservatorship forms, there are times when additional local forms are needed. Obtaining a California conservatorship entails a number of moves. To launch a conservatorship petition in California, you'll need the following forms:

• Petition for Appointment of Probate Conservator GC-310
• Notice of Hearing-Guardianship or Conservatorship GC-020
• Attachment to Notice of Hearing Proof of Service by Mail GC-020 (MA)
• Pre-Move Notice of Proposed Change of Personal Residence GC-079
• Confidential Supplemental Information (Probate Conservatorship) GC-312
• Citation for Conservatorship and Proof of Service GC-320
• Duties of Conservator and Acknowledgment of Receipt of Handbook GC-348
• Confidential Conservator Screening Form (Probate Conservatorship) GC-314
• Order Appointing Probate Conservator GC-340
• Letters of Conservatorship GC-350
• Capacity Declaration-Conservatorship GC-335
• Dementia Attachment to Capacity Declaration – Conservatorship GC-335A
• ATTACHMENT to Judicial Council Form MC-025

Conservatorships aren't the only choice.

You must be certain that a conservatorship is the best option for meeting the person's needs. The court can refuse to grant your petition if there is an alternative to the conservatorship.

It's possible that you won't need a conservatorship if the person needs assistance:

• Can work with others to implement a strategy to meet his or her basic needs.
• Has the ability and desire to sign a power of attorney appointing someone to assist him or her with financial or medical decisions.
• Has a monthly income of only social security or welfare, and the Social Security Administration can appoint you as a Representative Payee. The Representative Payee is the individual that the beneficiary authorizes to collect social security checks on his or her behalf.
• Is married or in a domestic relationship with a partner who is capable of handling financial transactions. The property must be in mutual accounts or be community property.

There are a few alternatives to a conservatorship

Decisions on medical and personal care:

• Health-care order made in advance
• Medical care must be approved by the court.
• Personal care plans made on the fly
• Harassment is covered by restraining orders.

When Making Financial Decisions:

• A replacement payee for government services (such as veterans' or social security benefits).
• Arrangements made informally
• Joint ownership of bank accounts or other assets
• Living trusts (also known as "inter vivos" trusts) are trusts that are established while the person is still alive.

The Court Process for Conservatorships

• The process of establishing a conservatorship is lengthy and complicated. Before petitioning the court to name a conservator, the petitioner should ensure that the conservatorship is the best option for the proposed conservatee.
• The conservatorship is about to begin. The proposed conservator; the proposed conservatee; the proposed conservatee's spouse, domestic partner, relative, or friend; another interested person; or an interested state or local agency, an employee of the agency, or public officer may initiate the process. When all of the requisite paperwork has been filed with the court, the process will begin.
• Bringing the petition to a close. The petition must contain information about the proposed conservator and conservatee, family, and the petitioner (the individual who files the case in court), as well as the grounds for the conservatorship. It must also explain why there are no alternatives to conservatorship in this situation. To get the information you need for a conservatorship case, click here. The PDF file style icon provides you with a list of documents and information to collect before filling out the petition and other forms.
• The petition is filed. The petition is filed with the court clerk by the petitioner. He or she must pay the filing fee as well as a fee for the court investigator. The clerk will set a court date for you. If the applicant has a low income, he or she might be entitled to request a fee waiver from the court.
• Providing information to the planned conservatee. A citation and a copy of the petition must be personally sent to the proposed conservatee by the petitioner.
• Notifying the relatives of the planned conservatee. The applicant must have someone else mail the conservatee's spouse or domestic partner, as well as immediate relatives, a written notice about the court hearing on the conservatorship petition, along with a copy of the petition.
• A court prosecutor is conducting an investigation. The prospective conservatee and anyone who might be acquainted with the conservatee's situation will be interviewed by a court investigator. When the court determines that the assessment will be a burden for the conservatee, the court will assess the conservatee's estate for the costs of the inquiry.
• Being able to attend a hearing. Unless he or she is excused due to sickness, the proposed conservatee must attend the hearing. A judge will decide whether everyone has been duly informed and whether an Estate Lawyer should be named to represent the proposed conservatee at the trial. The judge can grant or refuse the conservatorship until he or she is ready to make a decision. If the judge rules in favor of the petition, the conservator will be appointed, and Letters of Conservatorship will be given. Unless the court orders the conservatee's bank accounts to be frozen, a surety bond must be filed if there is an estate.

The Court Investigator's Position

The court investigator provides the judge with unbiased details about the case.

The investigator may contact the prospective conservator and arrange for a meeting with both the conservator and the conservatee. He or she will meet with both of them more than once. The investigator must also speak with the proposed conservatee's family.

The court expects the investigator to do the following:

• Have a one-on-one meeting with the suggested conservatee.
• Describe how the conservatorship would affect him or her.
• Describe what will happen during the hearing.
• Explain to the prospective conservatee that he or she has the right to object to or reject the conservatorship, to have an Estate Lawyer, to have a different conservator, and to have a jury trial whether he or she wants a jury to determine whether or not a conservator is required.
• The investigator may determine if an Estate Lawyer should be assigned to represent the proposed conservatee if he or she lacks the ability to comprehend or express an opinion.
• Examine the petitioner's Confidential Supplemental Information (Form GC-312PDF file type icon) and, if necessary, obtain additional information.

• Determine if the conservatee is willing and able to attend the hearing. The investigator has access to the private medical records of the prospective conservatee.
• Check to see if the proposed conservatee will fill out a voter registration affidavit.
• Discuss the proposed conservatorship with the relatives and why it is appropriate (or not)
• Write a confidential report for the court and give a copy to the conservator, the conservator's counsel, the proposed conservatee and his or her Estate Lawyer, the conservatee's spouse or domestic partner, the conservatee's parents, and the conservatee's children.
• Make case-related recommendations to the judge.

The court investigator remains active until a conservator is named. The investigator will investigate the case six months after the appointment to ensure that the conservator is carrying out his or her duties as conservator and that the conservatee's rights are being respected. The case will be reviewed by the prosecutor again in 6 months and then every 12 months after that.

1. If the investigator believes the conservator is behaving in the conservatee's best interests and the court agrees, the court will limit the scope of the reports the investigator must write and file in subsequent reviews, but the investigator must also make a personal visit and interview the conservatee, as well as prepare and file at least a brief status report every year after the first. Additional evaluations can be ordered by the court if they are required or beneficial to the conservatee's security.
2. If the investigator suspects an issue after one of these reports, he or she will request that the judge appoint an Estate Lawyer for the conservatee. This can initiate legal action to punish or expel the conservator, as well as select a replacement conservator or terminate the conservatorship.

The investigator may also pay a visit to the conservatee and write a report if the following conditions are met:

• A petition is lodged for the appointment of a temporary conservator.
• The proposed conservatee's residence is being moved by the temporary conservator.
• The conservator requests sole authority to make medical decisions for the conservatee, especially if the conservator is requesting special powers to care for a conservatee with dementia.
• The conservator wishes to sell the home of the conservatee (or former home).
• A petition for the appointment of a successor conservator is lodged, but the conservatee is unable or unable to appear at the hearing.

The conservatee will be informed about these cases by the court investigator. He or she would then make suggestions to the court in a written report that will be sent to the conservator, the conservatee's solicitor, and the conservatee's spouse or domestic partner, as well as any near relatives.

Conservatorships on a temporary basis

A judge can appoint a temporary conservator to handle a conservatee's more pressing needs that cannot wait for the appointment of a general conservator. A court can also appoint a temporary conservator to fill in between permanent conservatorships, such as when one is dismissed, and a new one is not yet named.

Temporary conservatorships are limited in length. Typically, a temporary conservator is named for a set period of time, normally 30 to 60 days. Conservatorships may be granted to an individual, an estate, or both. The temporary conservator's primary responsibility is to provide temporary care, security, and support to the conservatee. And before a general conservator can take over the estate's management, the conservatee's finances and property are protected by the temporary conservator of the estate.

Without the permission of the prosecutor, a temporary conservator cannot:

• Remove the conservatee from his or her current residence (unless it is an emergency)
• The conservatee's home must be sold, or the conservatee's lease must be terminated if the conservatee is a renter.
• An estate asset may be sold or given away.
• A motion for the appointment of a temporary conservator must be made in conjunction with a general conservatorship court case.

Putting an End to a Conservatorship

Conservatorship is normally a long-term commitment. However, in some circumstances, a conservatorship can be terminated or the conservator replaced.

The conservatee learns to manage his or her affairs on his or her own.

When recovering from a temporary debilitating physical or mental illness, a conservator may be appointed. The conservatee, for example, may have been involved in a major car accident and be unable to manage his or her personal life or finances. The conservatee will recover and be able to care for himself or herself after rehabilitation.

The conservatee, the conservator, a relative or acquaintance of the conservatee, or any other interested party may petition the court to terminate the conservatorship in these situations. The court can ask the court investigator to assess the case and the condition of the conservatee in order to determine if the conservatorship should be terminated. The conservator will be relieved of his or her responsibilities if the conservatorship is terminated by the judge.

The conservatee no longer has any money.

Occasionally, the conservatee's whole estate would be expended on his or her treatment. There may be no need for an estate conservatorship if there are no properties. If required, the person's conservatorship continues.

The conservatee passes away.

When the conservatee dies, the conservatorship comes to an end. However, the court will not immediately relieve the conservator of his or her responsibilities and close the conservatorship unless the conservator takes specific steps to bring the case to a conclusion.

The conservator is removed by the judge.

A conservator who is not doing his or her job or is unable to do so can be removed by the court, and a new conservator appointed. The conservatee, or any of his or her relatives or friends, can petition the court to have the conservator removed and replaced. If the conservatee requests it and does not have an Estate Planning Attorney, the judge may usually appoint one to file the petition on his or her behalf.

The conservator passes away.

If the conservator dies, the court should be notified by a relative, acquaintance, or the conservator's executor (the personal representative of his or her estate). If an estate conservatorship is in place, the conservator's executor or solicitor, or another conservator, will be required to file a final report of the conservatee's financial affairs.

The conservator has resigned from his role.

If the conservator becomes ill or is unable to continue serving as a conservator for some other cause, he or she may file a petition with the court requesting that the court approve his or her resignation. The conservator is still entirely liable as conservator until (and unless) the court approves the resignation.

If the court approves the resignation, the judge will request that the former conservator assists in the search for a replacement. The Public Guardian or a competent fiduciary may be named if no one else is available.

When a conservator is replaced or resigns, or when the conservatorship ends, the conservator is relieved of his or her responsibilities, but only after completing the necessary paperwork and providing the court with the details or documentation required to either pass the case to a new conservator or terminate the conservatorship. In the case of estate conservatorships, the conservator may be required to submit a final accounting.

Conservatorships for Mental Health (LPS)

Mental health (LPS) conservatorship entrusts one adult (the "conservator") with the care of another adult (the "conservatee"). A local government agency, normally a county's Public Guardian or Public Conservator, must initiate an LPS conservatorship.

Conservatorships with the LPS are only for a year. If they are needed for a longer period of time, they must be restarted and the conservator reappointed by the court. A family member of the conservatee may be recommended by the government agency to be named as an LPS conservator, but this typically happens after the first year.

Adults who are gravely disabled as a result of a mental condition described in the Diagnostic and Statistical Manual of Mental Disorders are eligible for these conservatorships (DSM). The most common psychiatric conditions are life-threatening biological brain disorders such as:

• Schizophrenia
• Bipolar disorder
• Schizoaffective disorder (SAD
• Clinical depression
• Obsessive-compulsive disorder (OCD)

Since they already have one of the significant psychiatric disabilities identified in the DSM, LPS conservatorships are not for people with organic brain defects, brain damage, developmental disability, alcohol or drug abuse, or dementia.

An LPS Conservator's Roles and Responsibilities

An LPS conservatorship grants the conservator legal power to make decisions on behalf of a conservatee who is unable to provide for himself or herself. If the court requests it, the court may assign an LPS conservator the responsibility of caring for and protecting the conservatee (conservator of the person), as well as the authority to manage the conservatee's finances (conservator of the estate).

• Even if the conservatee objects, the conservator may agree to mental health care. Psychotropic (mind-altering) medications can be used with the consent of the conservator. However, if the conservatee is determined to have sufficient mental capacity to make this decision knowingly and with sufficient understanding of the consequences, he or she can refuse to take them.
• If a doctor says it's necessary and the hospital agrees to take the person, whether or not the conservatee agrees, the conservator will consent to put the mentally ill person in a locked facility. When the mentally ill person is not in a locked rehabilitation institution, the conservator will determine where he or she will live.

The Conservatee's LPS conservator may also make financial choices for him or her, such as paying expenses and accumulating assets and profits.

Before making decisions for the conservatee, an LPS conservator must have adequate medical and social details. In addition, the conservator must only behave in the conservatee's best interests.

Conservatorships are difficult to manage

Petitioning for a conservatorship is a civil process that transfers decision-making authority from an incapacitated individual to another, whether it is for the incapacitated person's well-being and personal needs or for property management.

Conservatorships are subject to stringent protocols in the courts. A cataloging of the person's properties is done during the administration of a conservatorship in order to record an inventory at the time the conservatorship is created and to account to the court. The same is true for an incapacitated person's personal needs, as well as any evolving needs that will occur during the conservatorship in order to better protect the conservatee's health and well-being. A general plan must also be filed with the court by the conservator. The proposal is reviewed by the court one year later and then every two years after that.

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