Obtaining Conservatorship of an Elderly or Incapacitated Individual

Many families struggle with the decision about whether to obtain conservatorship of an elderly or incapacitated family member. You can make some decisions for your loved one without involving the courts. But there are other matters for which you will need legal authority to make decisions for another adult. A California estate planning attorney can help you petition for conservatorship of a family member so that you can care for and protect your family member.  

Our conservatorship litigation attorneys can also defend you or your family members if you believe that a proposed conservatorship is unnecessary, or is being sought for an improper purpose. 

What Is a Conservatorship?

A probate conservatorship in California is a court proceeding in which the court appoints a party to care for or oversee the care of an incapacitated or vulnerable adult. The person appointed by the court is a conservator, while the person conserved is known as the conservatee. There are two types of conservatorships in California. 

A conservator of the person makes decisions regarding the person’s physical care, medical treatment, and daily living arrangements. A conservator of the estate manages the person’s finances and property. One person can serve as both a conservator of the person and a conservator of the estate. However, they are separate roles and the court must approve each role separately even if the same person serves in both roles.

How Do I Seek Appointment of a Conservator?

If you believe that a family member is unable to care for himself or herself because of advanced age or physical or mental incapacity, or if you believe that the person is being subjected to undue influence, you may file a petition with the probate court seeking to become a conservator or to appoint a third-party conservator. The probate court assigns an investigator to interview the person who is the subject of the petition for conservatorship – the proposed conservatee. The court also generally appoints a separate attorney to represent the incapacitated person’s interests during the proceeding.

The probate investigator may also interview other witnesses and gather information regarding the person’s physical and mental health. The investigator prepares a report that is filed with the court and shared with the attorneys in the case.

The court schedules a hearing to determine if a conservator is needed. The proposed conservatee can attend the hearing to present evidence of why he or she does not need a conservator. In many cases, someone petitioning for conservatorship has already obtained medical opinions from the person’s physicians stating why the person is unable to care for themselves or their finances.

If a judge determines that a conservatorship is necessary, the judge grants the petition and appoints a conservator. The court retains jurisdiction over the matter and supervises the conservatorship. The oversight is intended to protect the individual who needs care. 

If you are petitioning to be appointed as the conservator of the estate, the court may review your income and assets, and may require you to obtain a bond to ensure that you faithfully administer the conservatee’s assets.  The court may also find that you have conflicts of interest, or conflicts with the conservatee or other family members, that require the court to instead appoint a third party, such as a private fiduciary.

Petitioners should also be mindful that in many cases the proposed conservatee may strongly object to the conservatorship.  Or other family members may object on his or her behalf. The objecting parties are entitled to a trial before the court, which can be extremely expensive and time-consuming, and which can cause great stress and division within families.

 A California estate planning lawyer can help you assess whether pursuing a conservatorship is appropriate for your situation, and may also help defend you if a proposed conservatorship is unnecessary or is being sought for an improper purpose. 

Can I Avoid a Court-Appointed Conservator?

Because the court retains jurisdiction and proceedings are a matter of public record, many people want to avoid a court-appointed conservator. They also want to avoid the cost and time involved in a court case as well as retain control over who takes care of them if they should become incapacitated.

You can avoid a court-appointed conservator by including documents in your estate plan to specifically plan for incapacity. A Durable Power of Attorney gives an agent you choose the authority to act on your behalf regarding financial matters if you are unable to do so for yourself. Your revocable living trust provides the same powers to your successor trustee, to allow them to manage assets titled in your trust.  You can also grant someone the authority to make healthcare decisions and other decisions for you if you are unable to do so. However, you must execute all of these documents while you still have capacity. If you wait, you and your family may find yourselves facing conservatorship proceedings.

A California estate planning lawyer can help you develop an estate plan that includes documents that protect you if you become incapacitated. 

Contact a California Estate Planning Attorney for More Information on Conservatorship

 If you want to discuss estate plans or you need to file for conservatorship, contact our California estate planning attorneys today to discuss your specific situation.