What Is Conservatorship?

What is a Conservatorship?

A conservatorship is a form of guardianship over a person who is unable to handle his or her own financial or personal affairs. The conservator (person who is authorized to make decisions on behalf of the incapacitated person) can be a parent, spouse, child, other relative, friend, or professional conservator. The conservator must act in the best interest of the incapacitated person (conservatee).

Conservatorship of the Estate and Conservatorship of the Person

Conservatorship of the Estate: When someone needs help managing finances, the court appoints a conservator of the estate. The conservator of the estate will take on tasks such as locating and taking control of assets, managing the assets, paying bills, making investments, collecting income, protecting the assets, and accounting regularly to the court. Some conservatees are unable to manage their finances, but still like to be out in the world; with court approval, the conservator can give the conservatee pocket money to spend, so for example the conservatee can still go out for coffee with friends or go shopping for small items.

Conservatorship of the Person: When someone needs help managing daily needs, the court appoints a conservator of the person. The conservator of the person will typically arrange for the conservatee’s care and protection, decide where the conservatee will live, and make decisions about personal matters such as food, clothing, recreation, transportation, and medical care. For some conservatees, the question of where they live can be critical. Sometimes the conservatee can live at home with the help of an aide; other times the conservatee will benefit from the increased social stimulation and safety features of a care facility.

If the conservatee has dementia or Alzheimer’s disease, the conservator may need to move him to a special care facility to keep him safe. There are care facilities that specialize in the care of people with dementia; they have a secured perimeter so patients can be free to walk around but will not be in danger of wandering off.

A conservatee can have two different people serving as conservator of the estate and conservator of the person, or one conservator can fill both roles.

There are Two Types of Conservatorship

Probate Conservatorship: A conservatorship for a person who needs assistance due to aging, illness, or an accident is called a probate conservatorship (even though no one has died and no probate is involved). It is called probate conservatorship because the rules controlling it are found in the California Probate Code.

Limited Conservatorship: A conservatorship for a person with a developmental disability is called a limited conservatorship. With a limited conservatorship, the conservator has powers only over certain aspects of the conservatee’s life that are specifically identified by the court, and the conservatee retains all other legal and civil rights. If the conservatee is not able to handle any areas of his or her personal and financial life, the conservator will be given all rights, just as in a probate conservatorship, but often a conservatee is able to retain certain rights such as the right to make decisions regarding education or the right to control social relationships.

If appropriate, the limited conservator will arrange for training in basic living skills (such as how to ride the bus or how to use money), medical care and counseling, social programs, recreational opportunities, and sheltered work programs.

Conservatorships Can Be Established at Either of Two Speeds

Regular: The regular speed for a conservatorship is approximately 45 days from the date papers are filed with the court until the hearing date. During this time, the court investigator will visit the proposed conservatee, conduct an interview, and write a report for the court. If papers are filed to institute a conservatorship at the regular pace, and then an emergency situation arises, the conservator can still bring an emergency petition to the court at any time (see below paragraph).

Emergency: This type of conservatorship is called a temporary conservatorship, and it remains in place for 30 days or until a permanent conservator can be appointed. The temporary conservatorship can be a conservatorship of the person, conservatorship of the estate, or both. It is used when there is an emergency, and the proposed conservatee requires immediate care or support, or the proposed conservatee’s property must be protected from imminent loss. An example of a situation that would justify a temporary conservatorship is when a person is not eating because he forgot how to prepare food. Another example of a situation that calls for a temporary conservatorship is if a person withdraws hundreds of dollars from the bank and then stands on the corner handing out twenty-dollar bills to strangers. In both situations, the person needs to be protected immediately and can not wait 45 days until a regular hearing date.

If a person is unable to manage financial or personal matters, it is possible to protect and help with a conservatorship.

Attorney Deborah A. Malkin has practiced law in Santa Cruz, California since 1988. She specializes in wills, trusts, and other forms of estate planning, as well as probate matters. Deborah A. Malkin is a Certified Legal Specialist in Estate Planning, Trusts & Probate, certified by the Board of Legal Specialization of the State of California.

Deborah A. Malkin
Attorney at Law
2425 Porter Street, Suite 3
Soquel, CA 95073
831.462.9100
dmalkin@malkintrust.com

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