Introduction
Limited Conservatorships in California are designed to help care for our most vulnerable family members. This type of conservatorship may be established for adults with intellectual and developmental disabilities who need help handling routine tasks that include health, education, shelter, and other affairs of life. To qualify for a limited conservatorship, the proposed conservatee must have a medical diagnosis of intellectual or developmental disability that was present before age 18.
Understanding the process of establishing a limited conservatorship in California can help you anticipate certain issues before they arise.
What Is a Limited Conservatorship?
A limited conservatorship provides legal protection that focuses on the best interests of a person with a developmental disability. The conservator is the individual granted legal decision-making authority in the conservatorship, and the conservatee is the person who needs someone to oversee his or her affairs. The goal of the conservatorship is to maximize the individual’s independence. The court pursues this objective by appointing a conservator to oversee only those affairs with which the conservatee needs help.
Who Can Be a Conservator in California?
A conservator is usually a close family member that filed the necessary paperwork to initiate the process in court. If the proposed conservatee has sufficient capacity to nominate a conservator, that person will have priority unless the court finds it is not in the proposed conservatee’s best interest.
A close family member may also nominate an individual to serve as conservator if they are unable to serve. Friends and other concerned individuals with personal knowledge of the conservatee’s condition and situation can also serve. The California Probate Code lists an order of preference if multiple family members are seeking conservatorship, assuming that they are otherwise equally qualified to act. If the parties cannot come to agreement, this can be a lengthy and costly battle.
The primary concerns and responsibilities of the conservator are to ensure that the conservatee is protected, empowered, and that their personal needs are met. In cases where friends and family are not options, the court can appoint a private conservator known as professional fiduciary. These professionals charge an hourly fee to serve, but sometimes they are the best option.
What Powers Does the Conservator Possess?
Serving as a conservator is an important duty. When applying for a limited conservatorship, a court will grant specific and purposely-limited powers tailored to each situation. These powers include:
- Deciding where the conservatee will live.
- The ability to access the conservatee’s confidential records.
- The option to allow or disallow the conservatee to enter into a marriage or a registered domestic partnership.
- The right to restrict the conservatee’s ability to enter into a contract.
- The power to give or withhold medical consent.
- Making decisions concerning the education of the limited conservatee.
- Determining the conservatees social and sexual contacts.
The court will only grant necessary powers, as the legal standard states that the court must seek the least restrictive means possible for protecting the would-be conservatee.
Types of Conservatorships in California
There are two types of limited conservatorships in California: conservatorship of the person and conservatorship of the estate. Each is explained briefly below.
Conservatorship of the Person
Adults with severely limiting developmental disabilities may need help managing their day-to-day tasks. In this case, the court can appoint someone to be the conservator of the person. This type of conservator will make daily decisions and arrangements for the conservatee pursuant to his or her interests of comfort and care. The above seven powers are all potentially available to the conservator of the person, depending on the conservatees needs, in order to achieve that day to day care.
One important feature of a conservatorship of the person is the ability to file a restraining order. This is important if you have a dependent adult who is being taken advantage of. Without the power to determine the social and sexual contacts of the conservatee, the conservator has no legal right to restrict access to the conservatee and no legal authority to file a restraining order on behalf of the conservatee.
Conservatorship of the Estate
The conservator of the estate is responsible for handling the financial decisions for the conservatee The conservator of the estate can:
- Take control of assets
- Pay bills and manage investments
- Receive and distribute income
The conservator can disseminate limited discretionary spending money for personal enjoyment. If the conservatee is on SSI, the conservatee must be very cautious with disseminating funds. Keep in mind that if the conservatee’s only income and assets are SSI, no conservatorship of the estate is required. Instead, you can file the requisite paper with the Social Security Administration to become the Representative Payee.
What Are Some Hurdles to Obtaining a Limited Conservatorship?
Establishing a conservatorship is expensive and time-consuming. If you are the conservator, prepare for the possibility of multiple court hearings. Hiring a California probate attorney can make the process go more smoothly. Many documents have to be filed to obtain conservatorship. Remember, you are taking away a person’s legal rights so it should be challenging. With the state budget cuts, if you get the paperwork wrong and your hearing has to be continued, your hearing may be delayed another two months.
Conservators agree to ongoing court supervision, which provides robust protection for an incapacitated adult’s person and estate. The court will require annual accountings of the estate and will send a court investigator to check on the conservatee periodically. If the court investigator has any concerns, the court will set a hearing and demand the conservator come to court and explain. If appropriate, the court may remove the conservator. The court must also approve significant decisions such as selling property or terminating life-support.
Conservatees are vulnerable to the conservator’s decisions. Unfortunately, financial abuse and mismanagement of conservatorship funds occurs. As such, conservators are required to obtain a bond. Bond requires having good credit, so if you are concerned about your ability to obtain bond, you should make sure you can be approved before petitioning the court. If you do not have sufficient credit to obtain bond, consider only serving as conservator of the person and having a professional fiduciary serve as conservator of the estate.
Keep in mind that bond companies will require you to be represented by an attorney in order to issue bond. This is because the rules are not intuitive. Without legal counsel, it is easy for a conservator to make inadvertent mistakes.
Are Conservators Compensated for Their Time?
Conservators can be compensated by the estate. All payments must be approved by the court. Payments are only authorized where there are sufficient funds, as determined by the court. Absent those funds, the conservator will not be paid.
How to Establish a Limited Conservatorship in California
Before filing a conservatorship petition, it may be advisable to have an open and honest discussion with the conservatee, friends, and family members. Open communication up front can minimize the risk of objections. Probate lawyers know that this does not work for all families, especially if there is friction. Hiring an attorney to facilitate and mediate the conversation may be helpful for all parties involved in the process.
Below you’ll find an overview of potential steps for establishing a limited conservatorship:
- Review this conservatorship handbook.
- Meet with a California probate attorney.
- Prepare all requisite forms including a Capacity Declaration which must be completed by the proposed conservatee’s doctor.
- File a Petition for Conservatorship and pay the $435 fee or file a fee waiver (based on the conservatee’s income).
- Serve notice of the filing on interested parties (all first and second degree relatives).
- Attend the hearing.
- File subsequent paperwork required by the court including a Level of Care Plan so the court understands the ongoing needs of the conservatee.
Conclusion
Once granted, a court investigator will visit the conservatee periodically. If the court investigator has any concerns, the court will set a hearing, reappoint an attorney or Guardian ad Litem to represent the interest of the conservatee, and potentially remove the conservator.
The most important thing to remember is that you, your family, and your disabled loved one do not have to manage everything alone. Even if you are only weighing your options, speaking with a probate lawyer in California can help you sort through the legal issues regarding your situation and even help you find alternatives to conservatorship.
You can schedule a free, no-obligation consultation with our attorneys at Kam Law Firm. We are a family-focused team that provides straightforward advice from our offices in San Diego, California. Call us today at (619) 535-1405 or fill out our contact form online.
