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CONSERVATORSHIPS
IN CALIFORNIA
By:
Mina N. Sirkin, Esq.
A Conservatorship is a
judicially created relationship whereby an adult has been given
the authorization and responsibility to care for another adult.
General Conservatorships can be three basic types: 1)
Conservatorship of the person; 2) Conservatorship of the Estate;
and 3) Conservatorship of person and estate.
Conservatorship
proceedings usually start when a person is so incapacitated that
he or she cannot manger his/her own affairs. The person who is
the caretaker is called the conservator, and the person who is
being taken care of is called the conservatee.
While a valid power of
attorney document can authorize the power of attorney holder to
accomplish certain of a conservator's tasks, a cannot prevent the
ill person from contracting, conveying property or marrying. For
example, a patient with Alzheimer's disease may become subject to
fraud from unscrupulous persons. While he or she could have given
a valid power of attorney while he or she was well, he or she may
be befriended, may marry, and convey his or her property to a new
spouse. In that situation, the probate code provides that a
conservatorship may be established, and the conservator may ask
the court to set aside any contract entered into by the ill
conservatee. The advantage of the conservatorship is that it can
safeguard against fraud against the ill person.
The conservatorship
proceeding begins with a petition filed with the court, followed
by an investigation by a court investigator and a court hearing.
Many factors can affect a conservatorship. For example, if the
conservatee objects to the conservator's appointment, he or she
may object and the court will assign counsel for the conservatee
for that purpose.
A conservator of the
estate is required to provide accountings that give details of
the conservatee' assets, and how the conservatee's money was
spend. Additionally, the court will require that the conservator
of the estate to post a bond. The conservator is paid by the
conservatee's estate and the court supervises the reasonableness
of the payments to the conservator.
If there are several
person who have filed petitions to become the conservator for the
conservatee, the court will decide who shall become the
conservator. Preference rules exist for making such a
determination.
A conservatorship must
continue until the court orders the conservator relieved from his
or her duties. This can happen if the conservatee dies; if the
estate is used up; if the conservatee regains his or her
capacity; and if the conservator becomes unable or unwilling to
act. In the last situation, the court will assign a successor
conservator.
Conservatorships are time
consuming, expensive, and should only be used when absolutely
necessary. Candidates for conservatorship can be, although not
limited to, those who suffer from Alzheimer's disease, stroke,
head injuries, Parkinson's and other debilitating disorders. A
conservator can petition the court for approval of appropriate
Medi-Cal planning transactions such as purchasing a home in order
to "spend down" the conservatee's property on exempt
assets.
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