Conservatorship

Ask yourself these questions regarding Conservatorship

  • Do you know of a loved one (18 years or older) that is no longer able to (or willing to) take care of their estate (assets) or themselves (personal care)?
  • Is that loved one an elderly person, or a younger person with temporary or permanent mental of physical disabilities?
  • Do you want to learn what legal authority and procedures you can take to help them with their personal and legal needs?

If you answered YES to any or all the above, you may need to learn of and establish a Conservatorship for that disabled loved one.

A Conservatorship is a “Probate” Court process and procedure that may involve several kinds of Conservatorships: Conservator of the Person, Conservatorship of the Estate, Temporary, and or Permanent, requiring specialized legal knowledge and experience.

Copenbarger & Copenbarger LLP can and will provide you with the help you will need.

Conservatorship Administration

Most people recognize a “Probate” as the Court’s processes and procedures that are needed to administer an individual’s estate after that individual’s lifetime.  Conversely, one can simply describe a conservatorship as a “lifetime Probate.”  A Conservatorship is the Court’s processes and procedures that are needed to administer an adult individual’s (18 years or older) estate or person when that adult individual is no longer able to (or willing to) take care of their estate (assets) or themselves (personal care) during that adult individual’s lifetime.

First some simple definitions:
Conservator – A Court appointed responsible adult individual, or organization, whose duty it is to protect and care for another adult or the other adult’s property (assets).
Conservatee – An adult individual who is unable, or unwilling, to care for themselves and or their own property (assets).

A conservatorship is a probate court proceeding where the judge will appoint a responsible person or an organization (the  Conservator) to protect another adult (the Conservatee)  who is unable to care for themselves and or  their own property.

There are Two Kinds of Conservators

A Conservator of the Person:
The Conservator who oversees and manages the personal care of the Conservatee when the person (adult individual) cannot provide for their personal needs, in health, medical, food, clothing and shelter.  As a Conservator of the Person you will need to manage the Conservatee’s food, health care, clothing, personal care, housekeeping, transportation, shelter, and general wellbeing.

The Conservator of the Estate:
The Conservator who has authority to manage and protect the Conservatee’s assets, collect their income, prepare budgets, pay the Conservatee’s bills, invest the Conservatee’s money, and prepare and submit an Account to the court, and to the Conservatee, of their management actions.

In California there are several types of conservatorship proceedings, these are:

Probate Conservatorships 
These are based on laws found in the California Probate Code. A probate conservatorship may be a general probate conservatorship (i.e., all assets and/or care) or a limited conservatorship (i.e., specific assets and/or care).  The general probate conservatorship typically lasts the entire lifetime of the Conservatee, or until the conservatorship terminates.  In addition, a temporary conservatorship may be needed until the general or limited Conservator is appointed.

General Probate Conservatorship
For adults who are unable to provide for their personal needs and or manage their financial affairs due to physical injury, dementia, or other reasons.

Limited Conservatorship
This is for a person who is developmentally disabled.  In this type of conservatorship, the Conservator is limited in their authority, so the disabled person may live as independently as possible.

LPS (Lanternman-Petris-Short) Conservatorship
This is for a gravely disabled person who may require hospitalization in a psychiatric ward.

The Conservatee’s assets that may require management may be real estate, bank accounts, investment accounts, IRA’s, annuities, life insurance, pay on death accounts, joint assets, beneficiary designated assets, intellectual property, royalties, and tangible personal property.

In California, a conservatorship proceeding is initiated by an adult individual (a petitioner) who asks the court to be appointed as a Conservator of either the person or the estate, or both depending on the proposed Conservatee’s needs.

The court will have to be convinced that establishing a conservatorship is the only way to meet the needs of the proposed Conservatee. If the court decides there are other ways, the court may not grant the conservatorship.

If the Court does not grant the conservatorship, alternatives are the use of a Durable Power of Attorney, Advanced Health Care Directive, and/or becoming a substitute payee for public benefits such as VA benefits and Social Security benefits.

Conservatorships are complex, convoluted, and frustrating – even the “simple” ones.  Due to the nature of the Conservatorship Court proceedings, the administration, and the potential liability of the Conservator, one should always consult a competent attorney, and most Conservatorships will require the representation of competent attorneys. Copenbarger & Copenbarger LLP have assisted family members and loved ones in establishing Conservatorship, and we are here to help you, counsel you, and guide you through this process and procedure.

Conservatorship Process

Step 1. Before you can act as a Conservator, certain steps must be taken to qualify as a Conservator. You will be required to prepare and file a Petition for Appointment as a Probate Conservator in which you will request the type of Conservatorship that you are seeking; identifying the conservatee and providing evidence that a Conservatorship is required.

A Doctors diagnosis of capacity would be sufficient evidence for finding the conservatee lacks capacity to manage his affairs, such as lacking capacity to contract; sell; transfer; convey property; make gifts; incur debts, and not having the ability to make medical decisions.

As a Conservator of the Estate, you will need to provide the character and estimated value of the Conservatee’s property. Also, you will have to acknowledge to the court that you understand your duties as a Conservator. The Court may also require an independent investigation by a Probate Investigator.

Step 2. The Petition is filed in the court that has jurisdiction over the matter. Notice of the “Notice of Hearing and Petition for Appointment of Probate Conservator” has to be provided to all first and second degree relatives of the proposed Conservatee and notice may be required to the VA administration, Director of Mental Health or Director of Developmental Services.

Step 3. You will be required to attend the court hearing where the judge will either sign or deny your request. You may be required to obtain and file a bond with the court to qualify.

Step 4. If appointed the judge will sign your order and provide you with Letters of Conservatorship, which give you the authority to act as a Conservator.

Step 5. The court will schedule a follow up review hearing, generally within 100 days of appointment. Before the review hearing you will be required to file certain notices such as “Notice of Consrvatees Rights”; if you are a Conservator of the Estate an inventory of the Consrvatees assets, and if you are a Conservator of the Person, a notice of Consrvatees appropriate level of care.

Step 6. Within one year and at least every two years thereafter you will be required to file an accounting showing how you have handled the Consrvatees income and property.

Step 7. You will also be required to prepare and file annual state and federal, tax returns.

Step 8. Termination- You will serve as a conservator until you have filed a final accounting and the Probate Court discharges you as a conservator. This can happen if the court decides a conservatorship is longer required or if the Conservatee has died or you resign, and the court accepts your resignation.

Why Copenbarger & Copenbarger LLP?

The process of making sure you have the legal protections in place. To make sure you your family, and your financial resources are properly protected. This requires you to help the attorney determine what are the most important areas of your life to secure. It involves asking the what if questions of life. What if I become disabled, what if I did, what if my spouse becomes disabled, what if they die, what if my children are unable to take care of themselves when I become disabled or die.