A conservatorship is a protective court proceeding that may become necessary when adults can no longer care for themselves and or manage their own finances. Once a conservatorship is granted it creates a court ordered conservatorship between the protected person (the conservatee) and the responsible person (the conservator).
A conservatorship provides legal authorization for the conservator – usually a spouse or domestic partner, family member, close friend, or hired professional (called a professional fiduciary) – to make decisions for the benefit of the protected person. I t restricts the conservatee’s powers over his or her own personal care and/or financial decisions. Under normal circumstances, a conservatorship proceeding is useful when the proposed conservatee is mentally incapable of understanding their surroundings, has dementia or Alzheimer’s, or is unable to resist fraud or undue influence. Armed with the appropriate court order, a conservatorship is able to restrict the proposed conservatee from entering into a contract and give the appropriate authority to the conservator to place the vulnerable person in a secure facility where their mental, as well as financial interests, are protected.
Types of Conservatorships
1. Conservatorship of the Person
A court can order a conservatorship of the person for someone whose inability to properly provide for their own personal needs for physical health, medical care, food, clothing or shelter, poses a significant threat of self injury or harm.
A conservator of the person can be given authority to decide where the proposed conservatee will reside, assuming that it is the least restrictive alternative that meets that individual’ s needs. In essence, the conservator is given the care, custody and control of the conservatee. Additionally, it could also allow the conservator to obtain medical information and communicate with health care providers to ensure that the protected person’ s medical needs are being met.
2. Conservatorship of the Estate
A conservatorship of the estate can be granted when a person is substantially unable to manage his or her own financial resources, resist fraud or undue influence. It may also be used as a tool to permit Medi-Cal eligibility planning, apply for other governmental benefits such as social security, and help preserve assets.
If a conservatorship of the estate is needed, the conservator would have the legal authority to make financial decisions for the protected person and to sign checks and other financial documents in that capacity. The conservator would have the legal obligation to make all financial decision in the best interest of the conservatee alone and would have to file yearly accountings with the Court.
3. Conservatorship of the Person and the Estate
Sometimes, a conservator may wish to petition the court for a conservatorship of the person and estate. This is usually required when a protected person cannot manage their own financial affairs AND is also unable to provide for his own personal needs for health, maintenance, and support. There can be a separate conservator of the person and a financial conservator, or a single responsible person can be the conservator of both. If two conservators are appointed, both conservators have a duty to diligently work together in concert to ensure that all interests of the conservatee are preserved and protected.
4. Limited Conservatorship for Developmentally Disabled Adults
Limited Conservatorships are required when a person with developmental disabilities reach adulthood. The purpose of a limited conservatorship is twofold: first, it provides a legal mechanism to protect individuals whose developmental disabilities limit their ability to care for themselves. Second, it encourages the limited conservatee to be self-reliant and independent. The requirements for a limited conservatorship are quite different than a conservatorship of the person, which has the effect of severely limiting the conservatee’ s ability to make decisions for themselves. Rather, a limited conservatorship mandates that the person with disabilities receive services resulting in more independent, productive, and normal lives.
How We Can Help
If you or someone you know maybe in need of a conservatorship, we can help you evaluate and analyze which least restrictive legal alternative would be best for your personal situation. Additionally, we would prepare all legal documents necessary to effectuate the conservatorship as well as complete all yearly conservatorship reports. With our gentle and competent guidance, the process of petitioning for a conservatorship would be a mechanism by which you can ensure that your loved one is legally protected.
If you have any questions, or if you would like to set up an appointment, please contact Sandra Bonds Hickey, Esq. at (760) 729-2327.
The information in this article is not, nor is it intended to be, legal advice. This article is for informational purposes only and may or may not apply to you. You should consult an attorney for advice regarding your particular circumstances. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.