Q: When is a conservatorship appropriate?
A: A conservatorship of the person may be appropriate if the individual is unable to provide for their personal needs. This may be due to advanced age, dementia, a physical injury or any other debilitating event. If they are unable to manage their financial affairs, or to resist fraud or undue influence, they may benefit from a conservatorship of the estate. Common scenarios where a conservatorship may be called for:
- The individual has no family and their ability to care for themselves is slipping
- They have family, but the level of care needed is beyond what they can offer
- The individual will not recognize that they need help, and resists assistance
- A family member or “friend” is taking advantage of them
Q: Who can be a conservator?
A: Nearly anyone. The Probate Code has a list of people who are given, in order, preference for appointment. For example, an adult child would have preference over a friend. If the proposed conservatee planned ahead, they could have nominated a conservator in their estate planning documents. The nominee would be at the top of court’s list of preferred conservators. The court may, under appropriate circumstances, choose to bypass someone on this list. Another option is a private professional conservator. They know their job and the available resources in the community. They are bonded and registered with the State, the Department of Justice, and the court. They are well skilled to serve as conservator of the person, estate, or both. If there is no family member willing to be appointed and a private conservator is not desired, the court may appoint the Public Guardian. The Public Guardian is an office of the County of San Diego. Through the Public Guardian’s office, the County can act as conservator of the person and estate when no one else will. Friends, family members, or professional conservators are usually preferable to the Public Guardian’s office. The Public Guardian’s case workers are caring and conscientious, but unfortunately they have large case loads, and are unable to give the attention that a family member or private professional could.
Q: Are there other ways to handle physical or mental incapacity without going to court for a conservatorship?
A: Yes. With advanced planning, a conservatorship can often be avoided. Powers of attorney, living trusts, advanced directives, and other estate planning tools can give friends and family members the legal authority needed to act on behalf of the incapacitated individual. Whether or not these would be adequate depends on the particular situation. Perhaps the person never drafted a trust or powers of attorney, and they are unwilling or unable to do so now. Perhaps they did draft them, but the family is finding the documents ineffective in dealing with existing problems. We invite you to review our website’s discussion of Alternatives to a Conservatorship
At San Diego Elder Law Center, our estate plans will provide you with all the tools to avoid conservatorship before incapacity strikes. If your family member is already incapacitated, we will try and find cost-effective alternatives to conservatorship. If there is a good alternative based upon your situation, we will identify it and pursue it for you. If the facts of your case are such that conservatorship is the best option, we can represent you in your petition to the court. If you wish to oppose someone else’s petition to be appointed conservator, we can represent you in that proceeding, as well.
Q: I’ve heard of the term “limited conservatorship.” Is that something less involved than a regular conservatorship?
A: No. A limited conservatorship is for developmentally disabled adults only. The State of California has a stated policy to encourage as much independence of the developmentally disabled as possible. Rather than the broad grant of authority in a standard conservatorship (actually referred to as a “probate conservatorship”), a limited conservator’s authority is divided into seven (7) separate categories. Each of these must be specifically addressed, and the need for each individually established. If all seven were granted, the authority of the limited conservator would be comparable to a probate conservator. If, however, a developmentally disabled individual who is fairly high functioning was found to able to make their own educational and social contact decisions, for example, they would retain the right to do so. The conservator’s power in that case would be “limited” to the remaining five powers. Click HERE for more information regarding limited conservatorships.
Q: My son is schizophrenic, and has gone off his medications again. He needs to be re-hospitalized and his medications stabilized. Can I get a conservatorship over him to do this?
A: The law concerning conservatorships over people with a diagnosis of mental illness is very different than discussed above. You need a different type of proceeding called an "LPS" conservatorship (short for Lanterman, Petris and Short, the authors of the original legislation). If you have questions about an LPS conservatorship, please feel free to call us.