Conservatorship

If you think you or a loved one may be in need of conservatorship, call Attorney Maxwell’s office at (707) 580-9402 or send an email to skmaxwell@scottkmaxwell.com to set up a consultation. Below is some useful information to help you through a difficult decision.

A probate conservatorship is a court proceeding where a judge appoints a responsible person (called a conservator) to care for another adult who cannot care for him/herself or his/her finances.

There are two kinds of conservators:

  • A conservator of the person cares for and protects a person when the judge decides that the person (called the “conservatee”) can’t do it.
  • A conservator of the estate handles the conservatee’s financial matters – like paying bills and collecting a person’s income – if the judge decides the conservatee can’t do it.

Conservatorship may be appropriate in a number of circumstances, including:

  • a person with a developmental disabled child turns 18 and cannot make informed personal, financial, or medical decisions;
  • an elderly person has developed dementia;
  • an adult suffers an accident and becomes incapacitated ; or
  • when an adult’s mental health requires specific care (an “LPS conservatorship”).

Establishing a Conservatorship

Setting up a conservatorship is a long and complex process. Before asking the court to appoint a conservator, the person asking for the conservatorship should be sure this is an appropriate arrangement for the proposed conservatee.

  • Starting the conservatorship. The process may be started by: the proposed conservator; the proposed conservatee; the spouse, domestic partner, a relative, or a friend of the proposed conservatee; another interested person; or an interested state or local agency, employee of the agency, or public officer. The process starts once all the necessary paperwork is filed with the court.
  • Completing the petition. The petition must include information about the proposed conservator and conservatee, relatives, and the petitioner (the person filing the case in court), and the reasons why a conservatorship is necessary. It must also explain why the possible alternatives to a conservatorship are not available in this case.
  • Filing of the petition. The petitioner files the petition with the court clerk. He or she must pay the filing fee, plus a court investigator fee. A court date will be scheduled by the clerk. If the petitioner is low income, he or she may be able to ask the court for a fee waiver.
  • Informing the proposed conservatee. The petitioner must have someone else personally deliver a citation and a copy of the petition to the proposed conservatee.
  • Informing the proposed conservatee’s relatives. The petitioner must have someone else mail a written notice about the court hearing on the conservatorship petition, together with a copy of the petition, to the conservatee’s spouse or domestic partner and close relatives.
  • Investigation by a court investigator. A court investigator will talk to the proposed conservatee and others who may be familiar with the conservatee’s condition. The court will assess the conservatee’s estate for the cost of this investigation unless the court decides that the assessment would be a hardship for the conservatee.
  • Hearing. The proposed conservatee must go to the hearing unless he or she is excused because of illness. At the hearing, a judge will determine if everyone has been properly notified and if a lawyer needs to be appointed to represent the proposed conservatee. Once the judge is ready to make a decision, he or she may grant or deny the conservatorship. If the judge grants the petition, an order appointing the conservator will be filed and Letters of Conservatorship will be issued. If there is an estate, a surety bond must be filed unless the court orders the conservatee’s bank accounts to be frozen.

After a Conservatorship is Established

Management of Wealth and Property

When a conservatorship is established, the Judge will require that a bond be obtained for the liquid assets and annual income in the person’s estate. Liquid assets include bank accounts and stocks. A bond is like an insurance policy. If the conservator mishandles the money or takes it, the person in conservatorship can be reimbursed.

The Judge also schedules the case for Court monitoring of the finances and property of the person in conservatorship as well as his or her welfare. The law requires that an Inventory and Appraisal of all assets be filed within 90 days of the appointment of the conservator. The conservator must also file a General Plan for the conservatorship. If the conservatee has any real property, the conservator must record evidence of the conservatorship with The Recorder of the City and County of San Francisco.

One Year Review

One year after the appointment of the conservator and every two years thereafter, an accounting of the assets, including the income and the expenditures must be filed with the Court. The accounting is reviewed in detail by a probate examiner. An investigator personally interviews the individual in conservatorship periodically and determines if the conservator is acting properly.

Non-Family Conservators

There are times when family members are unavailable or incapable of serving as conservators. Occasionally, the person who is thought to need a conservator does not want a family member to be the conservator. In those situations, there are agencies and individuals that can serve. The Public Guardian is an agency of the City and County of San Francisco and is the largest non-family conservator. There are also non-profit agencies that have complied with the law and can be appointed to serve as conservators. In addition there are individuals who are available to serve. They are called private professional conservators. As of July 1, 2008, they must be licensed by the State of California and meet ongoing educational requirements. All professional conservators are expected to keep a case and provide services even if the money runs out, especially if they have been appointed to serve as conservator of the person.

All conservators and attorneys in a conservatorship case are entitled to request the Court for fees for their work. The fees are carefully reviewed and granted by the Probate Court only if they have been properly justified. Conservators and attorneys cannot take money without a formal court order.

Those Most in Need of a Conservatorship

Conservatorships affect mainly older people, especially those over 85 years of age. Coincidentally, the fastest growing age group in the United States is the one over 85 years of age. In California, that age group will increase by 143 percent between 1990 and 2020. Some counties will experience even higher rates, up to 400 percent. The influence of the 85 and older age group will emerge most strongly between 2030 and 2040 as the first of the baby boomers reaches 85 years of age (http://www.aging.ca.gov). With the right genes, healthy living, and luck, most people will escape being incapacitated. However, many San Franciscans will have impairments and will need help with daily living. Most likely the number of conservatorships will increase over time. Fortunately, the California legislature has mandated many court safeguards for those who need conservatorships.

Alternatives to Conservatorship

You must be sure that establishing a conservatorship is the only way to meet the person’s needs. If there is another way, an alternative to the conservatorship, the court may not grant your petition.

You may not need a conservatorship if the person who needs help:

  1. Can cooperate with a plan to meet his or her basic needs.
  2. Has the capacity and willingness to sign a power of attorney naming someone to help with his or her finances or health-care decisions.
  3. Has only social security or welfare income every month and the Social Security Administration can appoint you Representative Payee. The Representative Payee is the person the beneficiary allows to receive social security checks in his or her name on behalf of the beneficiary.
  4. Is married or is in a domestic partnership and the spouse or partner can handle financial transactions. The property must be community property or in joint accounts.

Some alternatives to a conservatorship

For Medical and Personal Care Decisions:

  • Advance health care directive
  • Court authorization for medical treatment
  • Informal personal care arrangements
  • Restraining orders to protect against harassment

For Financial Decisions:

  • Power of attorney
  • A substitute payee for public benefits (like veterans’ benefits or social security benefits)
  • Informal arrangements
  • Joint title on bank accounts or other property
  • Living trusts (also called “inter vivos” trusts)

LPS Conservatorships

A mental health (LPS) conservatorship makes one adult (called the conservator) responsible for a mentally ill adult (called the conservatee). These conservatorships are only for adults with mental illnesses listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM).

The most common illnesses are serious, biological brain disorders, like:

  • Schizophrenia,
  • Bi-Polar Disorder (Manic Depression),
  • Schizo-affective Disorder,
  • Clinical Depression, and
  • Obsessive Compulsive Disorder.

LPS conservatorships are not for people with organic brain disorders, brain trauma, retardation, alcohol or drug addiction, or dementia, unless they also have one of the serious brain disorders listed in the DSM.

LPS comes from the names of the California legislators who wrote the LPS Act in the 1970s: Lanterman, Petris, and Short.