What is a Conservatorship in California?
Conservatorships are created when a judge appoints a person, known as a conservator, to act on behalf of another person, who is referred to as a conservatee. This is a legal designation that is set in motion when the conservatee is no longer able to manage finances and other important matters on their own. There are several types of conservatorships in CA to protect individuals including those with dementia (Probate), mental illness (LPS), and developmental disabilities (Limited). The focus of this article is on probate conservatorships.
Probate conservatorships fall under two categories, limited and general. The difference is in the level of care required by the conservatee. General conservatorships California protect an adult who is not able to care for themselves or manage their finances due to severe impairment or disability. Limited conservatorships offer a lesser degree of control over conservatees who have developmental disabilities that hinder financial and life management.
Probate conservatorships are usually initiated by a family member on behalf of a senior in decline. If no family member can be found, a Public Guardian will be appointed to have guardianship of the disabled individual.
One of the nation’s leading experts on probate conservatorship.
Steps to Obtain Conservatorship in California
Having someone declared incompetent or incapable of managing their own legal, medical, and/or personal affairs is a very dire business with serious legal implications. There is a protocol in place and forms to file, and a sequence of events is necessary to complete the process.
The California Probate Code outlines who can be named as a conservator for a disabled adult. The line of succession goes in order of preference from spouses through to siblings. When no relative is found, or none are willing to take responsibility, the court will appoint a suitable person. The paperwork needed to begin the process can be very confusing for the average person, which is why you should hire a legal professional to make sure everything is in order, and that you understand all of your rights and obligations.
To pursue a conservatorship, a psychologist or medical doctor with at least two years of experience diagnosing dementia must complete the capacity declaration for 335 and supplemental form 335a. These forms specify the scope of the conservatorship (estate only, the person including medical decision making only, or both). The capacity declaration must be completed based on a recent, in-person assessment of mental state and cognitive functioning. Ideally, the clinician completing the form will also provide a supplemental report documenting the presence of dementia, the cognitive domains impacted and the functional implications. This form must be included as part of a conservatorship proceeding.
The conservatorship is not without oversight. The appointed conservator of the person must be trustworthy, and he or she must act solely for the benefit of the conservatee. An inventory of all of the conservatee’s possessions and assets must be filed with the probate court. All big transactions or decisions like large cash disbursements, property sales, or end-of-life medical decisions are subject to court approval after a petition is filed. For the sake of transparency and to protect the conservatee, all transactions of any size must be documented.
Professor, Psychology, Licensed Clinical Psychologist in California
How Much Does a Conservatorship in California Cost?
There are a number of fees involved in seeking a conservatorship California. If you file a petition for a conservatorship and are unable to pay the fees, you can ask the court for a waiver. Being granted a waiver doesn’t mean the fees don’t need to be repaid. You may still owe them if your financial situation changes. You have 10 business days after filing to either request a waiver or pay the filing fees.
The base fee for the first filing of temporary letters of conservatorship is $60, and another $200 for a co-conservator. If any other filings are needed, the fee jumps to $435 for each. There may also be experts needed to testify at the hearing. If you get an attorney, you’ll need to pay for those as well.
It’s difficult to estimate the total cost if there are a lot of variables or the case is complicated. At a minimum, you’ll have to pay the $60 fee for the initial filing; if there is a co-petitioner, there will be an additional $200 fee. Excluding the cost of legal representation or advice, the cost could reach $500 – $1,500. This final price depends on additional court fees and the cost of the investigator.
To recap, conservatorship costs in California may include:
- Letters of Conservatorship
- Additional Filing Fees
- Legal Fees + Expert Fees
California Conservatorship Handbook
Any conservator, whether they’re a Public Guardian or a family member, is required to have a copy of the California Conservatorship Handbook. This 330+ page book is put out by the Judicial Council of California and outlines the rights and responsibilities of conservators. The first few chapters define the different type of conservatorship, including those of people or estates, talks about the filing process, and how to change or end a conservatorship. Each chapter goes into detail about how conservators should handle purchases, pay bills, and provide for the needs of their adult ward.
What is the conservatorship handbook for?
The handbook for conservators “has been written to help you in your role as a conservator of a person, conservator of the estate, or limited conservator of the estate or of a person. The book starts at the point that you have been appointed a conservator. It explains what is expected of you and suggests resources to help.”
A brief overview of the role of a conservator:
“You have been appointed conservator by a probate court judge. A conservator is an individual or organization chosen to protect and manage the personal care or finances – or both – of a person who has been found by a judge or a jury to be unable to manage his or her own affairs. That person is called the conservatee.
What is the role of the court in a conservatorship?
“Conservatorship cases are assigned to a specialized department of the superior court in each county, called the probate department or the probate court.
In larger counties, the probate court may consist of one or more separate departments, or courtrooms, that handle only probate cases. These cases include guardianship and decedents’ estates in addition to conservatorships. In smaller counties, the judge in the probate department also hears other kinds of cases.
The probate court has the legal authority to make decisions about the life and property of a conservatee. When a judge appointed you conservator, the court’s authority to care for your conservatee was partly delegated to you, under the court’s supervision. The court does not grant this authority lightly, and it will review your actions as a conservator.
The court is also responsible for resolving disputes that may arise between the conservator and other interested persons, including the conservatee, his or her close relatives, and even his or her close friends. In this role, the court operates more like it does in other areas of the law: as an impartial decision-maker. It there is a dispute, the court’s procedure for resolving it is similar to the procedures used in a regular civil lawsuit.
However, although the local court is fair, it is not neutral, particularly in disputes between the conservator and the conservatee. Its primary responsibility is to protect the conservatee. It does so by closely supervising the conservator.”
What is the role of a forensic expert in a conservatorship case in California?
A qualified decision capacity expert, such as Dr. Stacey Wood, can assist in making assessments, testify in court, and support investigations during probate conservatorship cases. Especially in contested conservatorships, the issue of the capacity of the proposed conservatee will be paramount to the resolution. The court requires a capacity declaration completed by an expert. Cases may also involve undue influence and the issue of capacity is not easily settled with the experience of a lay-person such as an attorney, relative, or judge within the courtroom. That’s why an expert in forensic psychology is often needed to assist in the assessment process.
A California expert witness with deep experience in forensic neuropsychology.
FAQ: Conservatorships in California
When is a conservatorship necessary?
A conservatorship is necessary when an adult who does not have the capacity to care for his or herself or their estate needs protection.
When is a conservatorship not necessary?
A conservatorship may not be necessary if the potential conservatee is capable of signing an Advance Healthcare Directive or Durable Power of Attorney, if they can adhere to a plan that meets their needs, if they are in a marriage in which their partner can handle their finances, or if they receive only welfare or Social Security income and can appoint a representative payee to receive checks on their behalf.
Who can begin the process of conservatorship?
A number of people can begin the process, including the potential conservatee, the proposed conservator, the potential conservative’s spouse, a relative or friend of the potential conservatee, a public officer, or an interested person or state or local agency.
What steps must be taken to obtain a conservatorship?
First, a petition for conservatorship must be filed with the court. This petition will include information about all parties involved as well as reasons why the conservatorship should be granted. An attorney can draft and file the petition. Once this has been done, the potential conservatee must be informed of the proposed conservatorship by delivering a copy of the petition and a citation to them. It is also vital to mail a copy of the petition to the potential conservative’s spouse and close relatives in addition to a written notice about the court hearing.
A court investigator will then conduct a neutral investigation to gather information about the conservatorship. Once this has been completed, the probate court under the superior court will set a date for a hearing, at which the proposed conservatee must be present unless excused for an illness. If the judge is ready to make a decision, they will choose to either grant or deny the conservatorship after weighing all of the factors of the case. The court will then file an order to appoint the conservator and issue letters of conservatorship, which details who the conservator and conservatee are and can be used to prove legal authority by the conservator.
What is the difference between a power of attorney and a conservator?
While both designations give control of one person’s financial, legal, and personal decisions over to another, power of attorney is something assigned before a person is incapacitated, but is in danger of becoming incapacitated at some point. An example would be the spouse of an active-duty military member when their husband or wife is deployed. California conservatorships are granted by the court when someone is no longer able to handle their own affairs.
What is the difference between a guardian and a conservator?
Both designations are either family members, friends, or professional individuals with guardianship who are appointed by the court to care for an adult who is deemed incompetent. The difference is that an individual with guardianship mostly makes decisions regarding medical care, and a conservator handles all legal, medical, and personal issues.
How much does conservatorship cost?
The basic filing fee to file temporary letters of conservatorship California is $60 if you don’t obtain legal representation. Lawyers usually charge a flat fee for each service they provide, which can reach $1,000 for a Standard conservatorship of person or estate with one filer. However, the court may waive these fees in cases of financial hardship. To have the court waive these fees, you will need to fill out and submit a fee waiver form, which will include information about your income and assets.
How long does a conservatorship last?
Unless otherwise specified, a conservatorship will last as long as the conservatee lives. However, in some cases, a conservatorship is set up to protect the conservatee for the duration of a serious illness or accident. Once he or she recovers, there is the option of terminating the conservatorship, but this type of conservatorship is not common. Additionally, a conservatorship can be terminated before the death of the conservatee if his or her assets are gone. In this case, the conservatorship of the person would remain, but the conservatorship of the estate would not be necessary any longer.
What is conservatorship of a person?
Conservatorship of a person is granted when a person is at risk of injury due to an inability to provide for their own basic needs for food, clothing, and shelter. This can be due to financial issues or because they are risking their health due to the refusal of assistance.
What is conservatorship of the estate?
Conservatorship of the estate differs from conservatorship of a person in that it puts a person in charge of financial matters (the “estate”) as opposed to medical or personal decisions, which would be conservatorship of a person.
What is a temporary conservatorship?
If the conservatee has immediate needs and can’t wait for a general conservator to be appointed, a temporary conservator, either of the state or of the person, may be granted. The court may also grant them to fill in if a permanent conservator is removed and a new one hasn’t yet been appointed. These conservatorships have specific end dates and usually range from 30 to 60 days in length. However, temporary conservatorships do tend to have more restrictions than limited or general conservatorships. For example, without the prior approval of a judge, the conservatee may not be moved from his or her home, have their home sold or their lease ended, or have an estate asset sold by the temporary conservator.
What are the alternatives to a conservatorship?
If you are looking for an alternative legal route to protect a person, you can obtain a restraining order instead. Additionally, if you are looking for an alternative legal route to protect a person’s bank accounts, the bank and brokerage accounts of the potential conservatee may instead be managed in a joint account.