Conservatorships

In California, a "Conservatorship" is a proceeding in which a court appoints one person (the "conservator") to make deci­sions for another (the "conservatee") who may be unable to do so him­self because of a mental or physical disabili­ty.

Conservatorships may be "of the estate" or "of the person". A conservator of the estate is appointed to manage the con­serva­tee's financial affairs. A conser­va­tor of the person is appoint­ed to make per­sonal decisions for the conservatee, such as where he will reside, what medi­cal treatment he will receive, etc.

The conservator of the estate may or may not be the same person as the conser­vator of the person. Depending upon the cir­cumstances, it is not always necessary for a conservator to be ap­pointed for both the person and the estate.

Procedure

A conservatorship is begun when some­one files a "Petition for Conserva­tor­ship" in the Superior Court of the county where the conservatee resides. The per­son filing the petition is called the "peti­tioner". The petitioner requests that a particu­lar per­son, often himself, be ap­pointed conserva­tor, and states the sorts of powers he wants the court to grant.

A hearing will be set in approxi­mately three weeks. In the interim, the petitioner (or his attorney) must cause a "cita­tion" to be served on the proposed conservatee. The citation is designed to inform the conservatee that someone wants to have a conservator appointed, and therefore deprive the conservatee of the right to handle his own affairs. The petitioner must also give notice to the conservatee's spouse and close relatives. 

Before the hearing is held, the court will appoint an investigator to make an inde­pendent evaluation of whether the conser­vatorship is necessary or desirable. The conservatee himself has the right to be represented by an attorney, and the court sometimes appoints one.

The proposed conservator must at­tend the hearing on whether the conser­va­tor should be appointed, as must the conser­vatee unless he has a medical condi­tion which makes attendance im­possible or harmful.

Often there is no dispute when the matter comes to hearing, and the conser­vator is appointed as a matter of course.

Sometimes the conservatee (or one of his relatives) disputes who should be ap­point­ed conservator or whether a conser­vator­ship is necessary at all. In either case, another hearing will be sched­uled so that all parties will have an op­portunity to present evidence and argu­ments about the disputed issue.

Temporary Conservatorships

It may be necessary to have a tem­po­rary conservator appointed before a full hearing can be held. For instance, the conservatee may need an emergency deci­sion made concerning medi­cal treat­ment, or some immediate action taken in order to preserve an asset. In such a case, the court may ap­point a temporary conserva­tor, usually with pow­ers limited to those which are needed to deal with the emer­gency.

The proposed conservatee must be given some notice (usually a few days) that the request for a temporary conser­va­tor­ship will be made, so that he may contest it if he wishes.

Letters of Conservatorship

If the judge grants the petition he will sign an order appointing the conser­vator, and in the case of a conservator­ship of the estate, setting the amount of bond which the conservator must file.

The purpose of the bond is to insure that the conserva­tor does not abscond with the conservatee's property. When a bond has been posted, the court clerk will issue "Letters of Conservatorship", which is a paper bearing the court's seal indicating that the conservator has the powers which have been ordered by the court.

Inventory and Accounting

The conservator of an estate is re­quired to take pos­session of the conser­va­tee's assets and property. He is then required to file an inventory of them within 90 days of his appointment.

At the end of the first year of the con­servatorship, and every two years thereaf­ter, the conservator is required to file an accounting with the court to detail the transactions which he has undertak­en.

Expenses and Compensation

The conservator is not required to ask the court's permission to pay ordi­nary expenses of the conservatee. On the other hand, he is required to ask permission before he reim­burses himself for attorneys' fees which he has incurred (or pays them from the estate of the conservatee). Fur­ther, although a con­servator is entitled to reasonable com­pensation for his serv­ices, he may not pay himself from the estate without court ap­proval.

Requests that the conservator be allowed compensation and be allowed to reimburse himself or pay attorneys' fees are usually made at the time the ac­countings are submitted.

Alternatives

Conservatorships can be cumber­some and expensive. In many cases, the strict safeguards required in conservator­ship proceedings such as bonds and accountings are unnecessary.

It is possible to provide for one's personal and financial care during peri­ods of inca­pacity without a conservator­ship. In par­ticular, a durable power of attorney for asset management can often avoid the necessity of a conservatorship of the es­tate, and a durable power of attorney for health care can do the same for many of the decisions required of a conservator of the person. Similarly, a living trust may provide a vehicle for the manage­ment of ones assets and payment of his bills when incapacitated.