Understanding Conservatorship

Conservatorship is a legal proceeding in which the court evaluates the vulnerability of an adult who may be unable to take care of his or her own: needs for shelter, food, medical care, manage personal finances, or may be subject to undue influence. Hiring an experienced lawyer from The Urbatsch Law Firm, P.C. may be one of the best decisions you can make during this difficult or transitional stage of life for your loved one.

What is Conservatorship?

Conservatorship is a legal arrangement in which a court appoints a responsible person or organization to manage the affairs and make decisions on behalf of another person, typically someone unable to make such decisions due to incapacity or disability.

Conservatorship can be established for adults with disabilities, or elderly individuals who are no longer able to manage their own affairs. The appointed conservator is responsible for making decisions related to the person’s health care, financial affairs, and general welfare and must act in the best interest of the individual under their care.

Establishing conservatorship typically involves filing a petition with the court, providing evidence of the individual’s incapacity or disability, and attending a hearing where the court will determine whether a conservatorship is necessary and who the conservator should be. Conservatorship is a serious legal arrangement that involves significant responsibilities and obligations.

Conservatorship Laws in California

Conservatorship laws in California are governed by the California Probate Code. Here are some key provisions of California conservatorship laws:

  • Types of conservatorship: California law provides for two types of conservatorships: conservatorship of the person and conservatorship of the estate. Conservatorship of the person involves making decisions related to the individual’s personal care and medical treatment, while conservatorship of the estate involves managing the individual’s finances.
  • Establishing a conservatorship: A conservatorship can be established if a court finds that the individual is unable to provide for their own personal needs or manage their own finances due to a physical or mental condition.
  • Appointment of conservator: The court will appoint a conservator to manage the affairs of the individual. The conservator is usually a family member, friend, or professional conservator.
  • Duties of conservator: The conservator has a duty to act in the best interests of the individual and to manage their affairs with the highest degree of care. The conservator must also file regular reports with the court.
  • Termination of conservatorship: A conservatorship can be terminated if the individual regains capacity, if the conservatorship is no longer necessary, or if the conservator is no longer capable or suitable.
  • Rights of the individual: Individuals subject to conservatorship in California have certain rights, including the right to counsel, the right to receive notice of all court proceedings related to the conservatorship, and the right to request a hearing to challenge the conservatorship.

Overall, conservatorship laws in California are designed to protect the interests of individuals who cannot manage their own affairs due to physical or mental incapacity. A consultation with the attorneys at The Urbatsch Law Firm, P.C. can ensure that all legal requirements are met, and the individual’s best interests are protected.
Reasons to Establish a Conservatorship or Limited Conservatorship

There are several reasons why someone may need a conservatorship, including:

  • Age-related disabilities: As people age, they may develop physical or cognitive disabilities that make it difficult for them to manage their own affairs. In such cases, a conservatorship may be necessary to ensure their financial and medical needs are met.
  • Mental illness: Individuals with severe mental illnesses such as schizophrenia or bipolar disorder may struggle to make sound decisions and manage their own affairs. A conservatorship may be necessary to ensure they receive the care they need.
  • Developmental disabilities: Individuals with developmental disabilities such as Down syndrome or autism may require assistance managing their affairs throughout their lives. A conservatorship may be necessary to ensure they receive the necessary care and support.
  • Substance abuse: Individuals with substance abuse issues may not be able to manage their affairs while they are under the influence of drugs or alcohol. A conservatorship may be necessary to ensure they receive the care they need and to manage their finances.

Overall, a conservatorship is intended to protect the individual’s best interests and ensure they receive the care and support they need. It is an important legal tool that can provide peace of mind to both the individual and their loved ones.

Reasons to Terminate a Conservatorship

There may be situations where a conservatorship is no longer necessary or appropriate, and terminating the conservatorship may be in the best interests of the individual. Here are some common reasons to terminate a conservatorship:

  • The individual has regained capacity: If the individual has recovered their capacity to manage their own affairs, the conservatorship may no longer be necessary.
  • The conservatorship is no longer needed: If the individual’s condition has improved or their needs have changed, the conservatorship may no longer be necessary.
  • The conservator is no longer capable or suitable: If the conservator is no longer capable of fulfilling their duties or is not acting in the best interests of the individual, the conservatorship may need to be terminated.
  • The conservatorship is causing harm: If the conservatorship is causing harm to the individual, such as through financial exploitation or abuse, the conservatorship may need to be terminated.
  • The individual wishes to terminate the conservatorship: If the individual expresses a desire to terminate the conservatorship, the court may consider this as a factor in deciding whether to terminate the conservatorship.

In general, termination of a conservatorship requires a court order, and the process can be complex. It is important to have a skilled conservatorship lawyer to protect your rights at every step.

How Long will I be a Conservator?

The limited conservatorship lasts for the lifetime of the conservatee or the lifetime of the conservator (whichever is shorter) unless the court orders otherwise. Also, if a court investigator’s report or other information suggests a conservator is not acting in the best interests of the conservatee, the judge will issue an order to show cause. If this happens, there will be a court hearing to decide if the conservator should be removed and replaced.

This is not a criminal hearing, but, if a conservator is suspected of taking physical or financial advantage of a conservatee, the State can file criminal charges.

What is a Limited Conservatorship?

In general, the purpose of a limited conservatorship is to protect adults with developmental disabilities from harm or exploitation while allowing for maximum self-reliance and independence.

Upon attaining the age of 18, a child will be considered a legal adult, gaining the authority to make his or her own life decisions regardless of any cognitive or developmental disability. A parent will no longer have the legal authority to make decisions for his or her child regarding health care, education, and finances unless a limited conservatorship is established.

A limited conservatorship is established through a court proceeding, where the judge will grant an individual or individuals (called a conservator) legal responsibility for the individual with a developmental disability (called a conservatee).

There are two types of limited conservatorships:

  1. A limited conservatorship of the person is where a conservator cares for and protects the conservatee and provides for the conservatee’s needs associated with daily life.
  2. A limited conservatorship of the estate is where a conservator handles the conservatee’s financial matters, such as paying bills and managing investments, if the conservatee has an estate.

Do I Need a Limited Conservatorship of the Estate?

You do not need a conservatorship of the estate if:

  • the developmentally disabled adult you care for gets public assistance, like Supplemental Security Income (SSI) or Social Security (SSA) but has no other assets, or
  • the developmentally disabled adult earns a wage.

Who Decides if the Adult is Developmentally Disabled?

The Regional Center in your community will test the proposed conservatee to see if she/he is developmentally disabled. If the Regional Center accepted the person as a consumer (or client) before age eighteen (18), then she/he automatically qualifies as a person with a developmental disability. But, if the person has never been tested or accepted as a regional center consumer, she/he must be tested.

To be an eligible developmental disability, the disability must have originated before the age of 18, be likely to continue indefinitely, and constitute a substantial handicap. The eligible conditions are mental retardation, cerebral palsy, epilepsy, autism and the “fifth category”. (See the Regional Center for more information on this category).

Conditions are solely psychiatric disorders, solely learning disabilities, or solely physical in nature are specifically excluded.

If the Regional Center feels that an individual does not qualify as a person with a developmental disability, and you disagree, you can appeal to the Area Board in your region (created by the state legislature to advocate for the rights of individuals with developmental disabilities).

Who can be Appointed as Limited Conservator?

Any adult can file for conservatorship. Conservators are usually parents, sisters, or brothers, but any responsible adult can act as conservator. There can be more than one limited conservator.

What Kind of Decisions can a Limited Conservator Make?

A limited conservator’s duty is to help the limited conservatee develop maximum self-reliance and independence. Because developmentally disabled adults can usually do many things independently, the judge will only give the limited conservator power to do things the conservatee cannot do without help.

After the hearing, the limited conservator’s “Letters of Conservatorship” and the “Order Appointing Probate Conservator” will list the exact areas (powers) in which the limited conservator is authorized to act.

What are the Responsibilities of a Limited Conservator?

As a limited conservator of the person, you must take care of the conservatee’s:

  • Food
  • Clothing
  • Shelter
  • Well-being

Powers

What Powers Can A Limited Conservator Ask For?

A limited conservator may ask the court for the following seven (7) powers:

  1. To fix the conservatee’s residence or dwelling
  2. To have access to the conservatee’s confidential records or papers
  3. To consent or withhold consent to the conservatee’s marriage
  4. To control the right of the conservatee to enter into contracts
  5. To give or withhold medical consent on behalf of the conservatee
  6. To restrict the conservatee’s social and sexual contacts and relationships
  7. To make all decisions concerning the education of the conservatee

When to Apply

When Should I Apply for Limited Conservatorship?

It is best to start the process about six months before the person’s 18th birthday. Once the paperwork is filed with the court, it can take 10-12 weeks or longer for the court to process the paperwork. The conservatorship will be effective upon the conservatee’s 18th birthday. However, a limited conservatorship can be established at any time after the person with the developmental disability has attained the age of 18.

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