When it comes to estate planning and probate and elder law, one topic that often arises is conservatorship. Other states sometimes refer to conservatorships as “guardianships,” but California separates guardianships from conservatorships: guardianships are for minors and conservatorships are for adults over the age of eighteen. A conservatorship is an important legal tool in caring for and assisting vulnerable individuals. A conservatorship is established through a legal process that requires a court to designate a person or institution to manage a vulnerable person’s financial, medical, and property affairs.
Many individuals and families have questions about this legal arrangement, which is designed to protect the interests of vulnerable individuals who are unable to manage their own affairs. We will explore some of the most common conservatorship questions that our clients ask at Sandoval Legacy Group.
Types of Conservatorships:
In the United States, there are generally two main types of conservatorships, although the terminology and specific regulations may vary slightly by state. For California, these two main types are:
Conservatorship of the Person: This type of conservatorship pertains to the personal well-being and healthcare decisions of an individual who is unable to make these decisions independently. The conservator (person in charge of the conservatorship) is responsible for making choices related to the conservatee’s (person in need of a conservatorship) daily care, medical treatment, living arrangements, and other personal matters.
Conservatorship of the Estate: This type of conservatorship focuses on managing the financial affairs and assets of an individual who is incapable of doing so themselves. The conservator of the estate is responsible for handling the conservatee’s finances, paying bills, managing investments, and ensuring that the conservatee’s financial interests are protected.
A conservatorship can be of the person, of the estate, or of both person and estate depending on the proposed conservatee’s needs, assets, and so on.
You may also come across variations or additional categories of conservatorships, such as limited conservatorships for developmentally disabled individuals, temporary conservatorships for emergency situations, conservatorships granting dementia powers, or LPS conservatorships for those who are a danger to themselves and others. The specific terminology and processes can differ from state to state and from county to county, so it’s essential to consult with an attorney who is well-versed in your state and county’s laws and regulations when dealing with conservatorships.
Top 10 Conservatorship Questions and Answers:
- When is a Conservatorship Needed?
A conservatorship is typically needed when someone is no longer capable of making decisions about their finances, health, or personal well-being due to factors such as advanced age, disability, or mental incapacity. It becomes necessary to step in and ensure their affairs are managed properly to prevent financial or personal harm.
- Why Can’t My Loved One Just Sign a Power of Attorney Instead?
This is a common question, and the answer lies in the circumstances and timing. A power of attorney is a legal document that allows someone to appoint an agent to make decisions on their behalf while they are still mentally competent. However, if the individual has already lost capacity and cannot understand the implications of the power of attorney, it may no longer be a viable option. In such cases, a conservatorship is the appropriate legal mechanism to assist the incapacitated person.
- What Powers Does a Conservatorship Give?
A conservatorship grants the appointed conservator (often a family member or trusted individual) the authority to make decisions on behalf of the conservatee. This can include managing their finances, healthcare decisions, and personal matters like housing and daily care.
- What Does the Conservatorship Process Look Like?
The conservatorship process typically involves several steps, including petitioning the court, providing notice to interested parties (including personally serving the proposed conservatee documents about the conservatorship), conducting assessments to determine the conservatee’s capacity, attending court hearings, and producing annual or bi-annual accountings of the conservatee’s assets if the conservatorship is of the estate. The specifics can vary by jurisdiction, so consulting with an experienced elder law attorney is essential to navigate this complex process.
- Who Can File for a Conservatorship?
Generally, anyone with a legitimate interest in the well-being of the alleged incapacitated person can file for a conservatorship. This often includes family members, friends, or concerned parties. The court will carefully evaluate the petitioner’s suitability to serve as a conservator.
- How Long Does a Conservatorship Last?
The duration of a conservatorship can vary widely based on the individual circumstances. Some conservatorships may be temporary, while others may be long-term or indefinite and last until the conservatee passes away. It is crucial to understand that conservatorships are subject to ongoing and regular court oversight, and they can be modified or terminated when circumstances change.
- Can a Conservatorship Be Terminated by the Conservatee?
Yes, a conservatee can request the termination of a conservatorship if they believe they have regained capacity and can manage their affairs independently. However, the court will carefully assess their capacity and evaluate whether termination is in his or her best interests.
- What are the Responsibilities of a Conservator?
Individuals often wonder about the specific duties and responsibilities of a conservator. Conservators have a legal obligation to act in the best interests of the conservatee. This includes managing their finances, paying bills, making healthcare decisions, and ensuring the conservatee’s overall well-being. The conservator must keep detailed records of all financial transactions and decisions made on behalf of the conservatee because they will be held accountable for those financial transactions by the court.
- Can Multiple People Share Conservatorship Responsibilities?
Many families grapple with the question of whether multiple individuals can serve as conservators. Yes, it is possible for multiple conservators to be appointed and this can be especially useful when different individuals have expertise in different areas (such as one handling financial matters and another overseeing healthcare decisions). However, it’s important to note that co-conservators must work together collaboratively and seek court approval for major decisions.
Additionally, it is important to note that some financial institutions will not allow co-conservators of the estate on bank accounts and/or will require any co-conservators to appear at the bank in person and together when in need of assistance, sign checks together, and so on—which will make enacting financial duties on behalf of the conservatee much more difficult.
- What Happens if There Are Disagreements Among Family Members Regarding Conservatorship?
Family dynamics can become complicated when conservatorship decisions are involved. If there are disagreements among family members about who should be the conservator or how decisions should be made, the court may need to intervene to resolve disputes. In such cases, it is advisable to seek legal counsel to navigate the process and ensure that the best interests of the conservatee are upheld while addressing family concerns. Mediation or alternative dispute resolution methods may also be explored to reach a consensus.
Conservatorships are a vital legal tool designed to protect vulnerable individuals when they are no longer capable of managing their own affairs. While these common questions provide a solid foundation for understanding conservatorships, it is essential to consult with an experienced elder law attorney for personalized guidance based on your specific circumstances.
As an estate planning and elder law firm, we are here to help you navigate the complexities of conservatorships and other estate planning matters, ensuring the best possible outcomes for you and your loved ones.
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