Encinitas,
San Diego County
Practice Areas - Conservatorship

What is a Conservatorship?

A Conservatorship is a court supervised relationship involving a conservator and conservatee.  Conservatorships can be of the person when one can no longer properly provide for their physical health, food, clothing and shelter.  Conservatorships can also be of the estate when one can no longer manage their financial resources or resist fraud or undue influence. 

After a noticed hearing and court investigation the court may appoint a Conservator, with an order and letters, to be responsible for the Conservatee's person or estate.  The Conservatee is the individual no longer able to care for their well being or manage their financial resources.


Conservatorships declare in a public record that the Conservatee is incompetent to care for themselves or their financial affairs.  They also limit or remove certain freedoms the person had before becoming a Conservatee.  Because of the seriousness involved, the Court scrutinizes attempts to create Conservatorships.  If there are less restrictive or intrusive means to protect the person, the Court must avoid creating a Conservatorship.


What is a Limited Conservatorship?

Limited Conservatorships are for individuals who are developmentally disabled.  These are individuals that already have a disability before reaching the age of majority.  Limited Conservatorships are titled appropriately when compared to a General Conservatorship because they focus on preserving the maximum amount of independence for the individual.  Further, the Regional Center will investigate and provide a report to the court. 

For example, a special needs child with a mental disability reaches the age of 18 and continues to need assistance in certain areas of their life.  With a Limited Conservatorship, parents could continue to provide that assistance without meeting resistance from third parties, such as schools or doctors, which would otherwise be obligated to recognize the developmentally disabled individual as an adult.

It is helpful for parents of developmentally disabled children to begin the process of obtaining a Limited Conservatorship before their child reaches 18. 

What powers are typically involved with a Limited Conservatorship?

Limited Conservatorships tend to focus on providing the Conservator with up to seven (7) powers over the Conservatee.  These primary powers include:
1. Fixing a residence or specific dwelling.
2. Access to confidential records or papers.
3.To consent or withhold consent to marriage, or entrance into a registered domestic partnership.
4. Enter contracts.
5. Give or withhold medical consent.
6. Control social and sexual contacts and relationships.
7. Decisions concerning education.

What is a General Conservatorship?

General Conservatorships are typically initiated when an adult’s capacity becomes diminished to the point that they are deemed incompetent and unable to care for themselves or manage their affairs.  There are Conservatorships of the Person, for those unable to care for their own physical well being, and Conservatorships of the Estate for those no longer able to manage their finances and assets.

How is a Conservatorship created?

To initiate a Conservatorship one must file all the necessary documents and filing fees with the Court while observing all other procedural requirements and local rules.  The proposed Conservatee, Conservator, relative, friend or any interested person can start the process.  Notice must be provided and a Court Investigator will likely meet with the proposed Conservatee.  A Hearing must be held to determine if all procedures were followed, if the proposed Conservator is appropriate, and ultimately whether the Conservatorship will be granted or not.

 

What are the responsibilities of a Conservator of the Person?

The primary responsibilities of a Conservator of the Person are to establish where the Conservatee will live, the medical treatment they will receive and their day to day well being (hygiene, food, housekeeping, education, recreation and interaction). 


What are the responsibilities of a Conservator of the Estate?

The primary responsibilities of a Conservator of the Estate are to make sure the Conservatee’s assets are protected and preserved.  They must establish a budget for the Conservatee, pay bills, and account to the Court all while avoiding financial conflicts of interest with the Conservatee. 

A Conservator of the Estate will be required to provide the court with an Inventory and Appraisal after appointed, account within the first year of appointment, and account every two years afterwards.  Accountings provide the court with a method to track how the conservatee's funds are being managed and spent.  A noticed hearing will occur after each accounting is filed with the appropriate filing fee.

The State of California provides a Handbook for Conservators to assist Conservators in understanding what is expected and required on their part. 

Temporary versus General Conservatorships.

Temporary Conservatorships are reserved for imminent emergencies.  For example, an individual does not have capacity to consent to medical treatment, needs an operation, and will remain in great pain until they receive the operation.  A Temporary Conservatorship is not designed for Conservators to obtain letters earlier than if they waited for the hearing on the General Conservatorship.  Further, Temporary Conservatorship Letters, the document that gives the Conservator power to act, expire.

General Conservatorships take slightly longer to be put on calendar for a hearing.  It is appropriate for individuals who can no longer properly provide for their physical health, food, clothing and shelter or can no longer manage their financial resources or resist fraud or undue influence.  Letters issued for a General Conservatorship do not expire like the Temporary Conservatorship letters.

Are there Alternatives to Conservatorship?

There are Alternatives to Conservatorships.  A Conservatorship of the Person will likely be avoided if the person for whom a Conservatorship of the Person is being considered has existing working relationships with doctors and hospitals or a Healthcare Power of Attorney executed while they still had capacity. 

A Conservatorship of the Estate will likely be avoided if the person for whom a Conservatorship of the Estate is being considered has joint accounts with a spouse, a Financial Power of Attorney, or has transferred their assets to a Trust. 


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