Most people recognize a “Probate” as the Court’s processes and procedures that are needed to administer an individual’s estate after that individual’s lifetime. Conversely, one can simply describe a conservatorship as a “lifetime Probate.” A Conservatorship is the Court’s processes and procedures that are needed to administer an adult individual’s (18 years or older) estate or person when that adult individual is no longer able to (or willing to) take care of their estate (assets) or themselves (personal care) during that adult individual’s lifetime.
First some simple definitions:
Conservator – A Court appointed responsible adult individual, or organization, whose duty it is to protect and care for another adult or the other adult’s property (assets).
Conservatee – An adult individual who is unable, or unwilling, to care for themselves and or their own property (assets).
A conservatorship is a probate court proceeding where the judge will appoint a responsible person or an organization (the Conservator) to protect another adult (the Conservatee) who is unable to care for themselves and or their own property.
There are Two Kinds of Conservators
A Conservator of the Person:
The Conservator who oversees and manages the personal care of the Conservatee when the person (adult individual) cannot provide for their personal needs, in health, medical, food, clothing and shelter. As a Conservator of the Person you will need to manage the Conservatee’s food, health care, clothing, personal care, housekeeping, transportation, shelter, and general wellbeing.
The Conservator of the Estate:
The Conservator who has authority to manage and protect the Conservatee’s assets, collect their income, prepare budgets, pay the Conservatee’s bills, invest the Conservatee’s money, and prepare and submit an Account to the court, and to the Conservatee, of their management actions.
In California there are several types of conservatorship proceedings, these are:
Probate Conservatorships
These are based on laws found in the California Probate Code. A probate conservatorship may be a general probate conservatorship (i.e., all assets and/or care) or a limited conservatorship (i.e., specific assets and/or care). The general probate conservatorship typically lasts the entire lifetime of the Conservatee, or until the conservatorship terminates. In addition, a temporary conservatorship may be needed until the general or limited Conservator is appointed.
General Probate Conservatorship
For adults who are unable to provide for their personal needs and or manage their financial affairs due to physical injury, dementia, or other reasons.
Limited Conservatorship
This is for a person who is developmentally disabled. In this type of conservatorship, the Conservator is limited in their authority, so the disabled person may live as independently as possible.
LPS (Lanternman-Petris-Short) Conservatorship
This is for a gravely disabled person who may require hospitalization in a psychiatric ward.
The Conservatee’s assets that may require management may be real estate, bank accounts, investment accounts, IRA’s, annuities, life insurance, pay on death accounts, joint assets, beneficiary designated assets, intellectual property, royalties, and tangible personal property.
In California, a conservatorship proceeding is initiated by an adult individual (a petitioner) who asks the court to be appointed as a Conservator of either the person or the estate, or both depending on the proposed Conservatee’s needs.
The court will have to be convinced that establishing a conservatorship is the only way to meet the needs of the proposed Conservatee. If the court decides there are other ways, the court may not grant the conservatorship.
If the Court does not grant the conservatorship, alternatives are the use of a Durable Power of Attorney, Advanced Health Care Directive, and/or becoming a substitute payee for public benefits such as VA benefits and Social Security benefits.
Conservatorships are complex, convoluted, and frustrating – even the “simple” ones. Due to the nature of the Conservatorship Court proceedings, the administration, and the potential liability of the Conservator, one should always consult a competent attorney, and most Conservatorships will require the representation of competent attorneys. Copenbarger & Copenbarger LLP have assisted family members and loved ones in establishing Conservatorship, and we are here to help you, counsel you, and guide you through this process and procedure.
