Here’s the scoop on the good, the bad, and the ugly.
Conservatorships have been a hot topic in the news lately. With Britney Spears legally battling her own conservatorship, and the new Netflix movie, “I Care a Lot” released earlier this year, many questions have been raised on the pros and cons of conservatorships.
The truth of the matter is, conservatorships are one area of the law that most people don’t really know very much about. Unless you are an avid legal nerd, or have personal experience with a family member or friend requiring a conservatorship, it is highly likely that you haven’t even heard this word before.
So in today’s post, we’re providing you with an easy-to-understand, informative guide on conservatorships. We’ll walk you through the basics step by step, and then delve into some deeper information about conservatorships, their purpose and their reality.
California’s Definitions of a Conservatorship
In California, a conservatorship is a legal process designed to provide protection for an adult who is unable to care for either their physical or financial needs. The goal of a conservatorship is to appoint a safe guardian to provide care and support to this individual.
Important note: Other states may use the word “guardianship” instead of “conservatorship” to describe protection for both minors and adults, and use the specification ‘adult guardianship’ for individuals over the age of 18.
Conservatee – The person who has limited rights and authority due to a limitation in their capacity to care for themselves, either personally/medically or financially.
Conservator – The person with the legal authority to care and make decisions for the Conservatee.
“Of the person” – This is a conservatorship that limits the authority of the Conservator to making decisions related to the i physical needs of a person. This Conservator makes sure that the Conservatee has proper food, clothing, shelter, and physical medical care. Depending on the Conservatee’s ability to understand and make decisions, the Conservator may need to make important medical choices for him or her.
“Of the estate” – This Conservator is responsible for managing the Conservatee’s financial matters — like paying bills and collecting a person’s income — when the Conservatee is no longer able to do this for themselves.
Limited Conservatorship – In a limited conservatorship, the Conservatee is a developmentally disabled adult. A developmental disability (1) originates before the individual is 18 years old; (2) continues, or can be expected to continue, indefinitely; and (3) is impacting enough to constitute a substantial handicap to the individual. Cal. Prob. Code § 1420. The Conservatee is generally considered a young adult, oftentimes with the conservatorship being granted shortly after the individual turns 18.
Limited Conservatorships also have very strict mandates. California Probate Code §1801 states, “A limited conservatorship may be utilized only as necessary to promote and protect the well-being of the individual.” A limited conservatorship is required to “encourage the development of maximum self-reliance and independence of the individual, and shall be ordered only to the extent necessitated by the individual’s proven mental and adaptive limitations… The intent of the Legislature… that developmentally disabled citizens of this state receive services resulting in more independent, productive, and normal lives is the underlying mandate of this division in its application to adults alleged to be developmentally disabled.”
General Conservatorship – A ‘General Conservatorship’ is most commonly used for elderly adults. The circumstances necessitating a general conservatorship may include someone who develops dementia or Alzheimer’s or suffers from a traumatic brain injury and these individuals do not have the proper estate planning in place.
LPS Conservatorship – These are very specialized conservatorships utilized under the most specific of circumstances. LPS conservatorships must be started by a local government agency rather than a family member or other loved one. LPS conservatorships are used to care for adults with serious mental health illnesses who need specialized care, such as living in a locked facility.
What is the process to obtain a conservatorship?
1. First, ask yourself “Is this the best arrangement for the individual?”
Before seeking a conservatorship, it is important to ask yourself if this is truly the appropriate arrangement for the proposed Conservatee— or if there is a less restrictive way to ensure the Conservatee’s needs are met and they have any support they require.
The process to establish a conservatorship is long, complex, and can be quite expensive. Obtaining a conservatorship also means that the rights of the individual are seriously impacted. It is necessary to consider the alternatives to conservatorships first—a conservatorship should only be pursued as a last resort.
2. A legally authorized person must file the Petition for Conservatorship.
This person can be nominated in a Durable Power of Attorney. If there is no Power of Attorney, then a spouse, relative, friend, or an interested governmental agency may submit the Petition. The initial time consuming process is completing the paperwork and submitting it to the court for filing.
The Petitioner must complete paperwork that is quite significant in breadth and scope. These documents will require the Petitioner to provide detailed and specific information about the health, wellbeing, and capabilities of the proposed Conservatee, and relatives.
The Petitioner will also have to provide extensive background information about the proposed Conservator and their relationship to the proposed Conservatee. It is important that the Petitioner is transparent about everything that the court asks to know. The person completing the paperwork will need to give specific details about why a conservatorship is necessary and appropriate, and why the other legal alternatives are not appropriate for the proposed Conservatee.
Important: The Petitioner requesting the conservatorship does not have to be the proposed Conservator; however, it is very common that they are the same person. The Petitioner may also be asking for multiple people to be appointed as the Conservator.
Fees Associated with Filing for a Conservatorship
When the Petition is filed with the court, there will be a filing fee. There will also be 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.
3. The Proposed Conservatee must be served with the filed documents—and the spouse and close relatives must be notified.
The proposed Conservatee must be served with the filed documents notifying the proposed Conservatee of the upcoming court hearing, and that a Petition for Conservatorship has been filed. The Petitioner must also ensure that the spouse, and close relatives of the proposed Conservatee receive notice of the petition and court date.
4. A court investigator will conduct an assessment.
The process to obtain a conservatorship can feel invasive. 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. The court investigator will also speak to the proposed Conservator(s) and any family members or other collateral contacts the investigator deems is appropriate and necessary to learn about the needs of the proposed Conservatee, the appropriateness of the conservatorship, and whether the proposed Conservator(s) is the correct person to take on these responsibilities.
5. The court will have a hearing on the request following the completion of the investigation..
Following the submission of the Petition, and the completion of the investigation, you will attend a hearing on the request. The proposed Conservatee must go to the hearing unless he or she is excused based upon a medical doctor’s recommendation and court approval. 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.
All interested parties are able to attend this hearing; however, appearance is not mandatory for family members or friends, unless there is an objection to the conservatorship.
6. The judge grants or denies the conservatorship.
At this hearing, the judge has a few options. Should the judge and the case be ready to proceed, the judge may render a judgment at that hearing either granting or denying the conservatorship. If the judge or the case is not ready, the court will direct the Petitioner as to what additional information is needed and set a new hearing date to return before the court. Should the court determine a longer hearing is necessary, the court will use this hearing to schedule a longer hearing.
If the judge grants the petition, an order appointing the Conservatorship will be filed and Letters of Conservatorship will be issued. If the court grants a request to create a Conservatorship of the Estate, the court may require the Conservator to obtain an insurance policy called a surety bond which must be filed, unless the court orders the Conservatee’s bank accounts to be frozen.
Now I know what a conservatorship is, and how to get one… what’s the big deal?
As stated above, a conservatorship should truly be sought only as af last resort. Under the right circumstances, a conservatorship is a powerful tool to care for individuals unable to care for themselves with no other legal options; however, as we have seen with Britney Spears and the dramatized examples from “I Care a Lot” (loosely inspired by true events), it is possible for conservatorships to be abused, and for Conservatees to suffer in the process.
Who is a conservatorship appropriate for? A conservatorship is the appropriate step in a few cases. One example is when an individual has a childhood disability which will prevent them from being self-sufficient, from participating in their medical care, or having the capacity necessary to be a part of their own care team.
It is important to recognize and remember that members of the disability community are wide and varied. This is not a homogenous community & the needs of every individual are different. It is completely possible for a person to have a medically recognized disability but be fully self-sufficient and able to care for themselves or participate in their care. In this regard, it is important for the members of the disability community to be recognized as whole and complete individuals. That we do not diminish anyone by using improper terminology which has been historically used in relation to conservatorships.1 A conservatorship is intended for someone who has a medical condition which negatively impacts their ability to care for themselves. This medical condition can exist at birth, develop in childhood, be the result of an accident, or part of aging.
1http://nda.ie/Publications/Attitudes/Appropriate-Terms-to-Use-about-Disability/
Who is not the appropriate candidate for a conservatorship? One reason we so fully support and promote everyone completing their estate plan—, regardless of income,—is that the creation of a power of attorney, a trust, and/or a health care directive can alleviate the need for a conservatorship.
With the creation of estate planning documents, the creator can identify trusted individuals whom they would want to provide care and make important decisions for them in the event the creator becomes incapacitated or needs the additional support. The creator of the estate plan is also able to specify the scope of their authority and provide additional guidance as to the creator’s wishes and intent..
If for some reason, the support needed is beyond the scope of the estate planning documents you have prepared, a well drafted Power of Attorney will include a nomination for Conservator, providing evidence to the court of who you believe is the appropriate person to have management control over your assets, and authority to communicate with medical professionals on your behalf.
What are the alternatives to a conservatorship?
If the person you are contemplating requesting conservatorship powers over has the legal capacity necessary to create an estate plan, then setting that person up with an estate planning attorney who works with individuals with disabilities is a great place to start. With that attorney, they can create the basic documents like health care directives and powers of attorney. That said, there are significant other ways to provide support without stripping the individual of their rights through a conservatorship. The following list will be applicable to varying degrees based upon the individual’s needs.
Social Service Agencies
You may have a local social service agency that has a case manager who can meet with your loved one to assess their needs and their level of capability related to an illness or disability. The case manager may participate in their care and management decisions.
Specifically, they will meet the adult regularly to see how they are doing. As part of their services of support, they will check to see if the services they are providing are helping or if anything more is needed. The case manager will likely have the ability to arrange for meals, housekeeping, transportation to health care appointments, and personal care at home. As a part of their supportive services, these agencies may also offer support for managing and making financial decisions.
Health Care Teams
California law allows teams of health care professionals in nursing homes to make medical decisions for adults in nursing homes in situations when they cannot do so and have no one to help them.
Joint Bank Accounts
The adult can set up a joint bank account with someone they trust. This lets the trusted adult write checks, make deposits and withdrawals. This arrangement is not without potential pitfalls. It is extremely important that the added adult is someone who is trustworthy. By having a second person’s name on the account, that person has free access to make withdrawals and if the wrong person is selected, they may abuse the trust given to them.
Also, it is important to remember, that when either person dies, the other person will inherit the account in full. So, if you do not want the trusted adult to inherit the account, this will not be the best arrangement for you.
Supported Decision Making2
“Supported decision making” is an umbrella term that describes the manner and process by which individuals can support adults in their life with disabilities without going so far as to establish a conservatorship. The ACLU and the national Supported Decision Making group have wonderful resources and publications explaining the purpose and scope of supported decision making.3
It is important to state that Supported Decision Making is not yet widely discussed or broadly promoted. As the ACLU notes, so far it is only formally recognized in Texas; however, that does not mean that outside of Texas it is not possible to utilize this format to achieve the same result.
According to the ACLU, “Supported decision making (SDM) is a tool that allows people with disabilities to retain their decision making capacity by choosing supporters to help them make choices. A person using SDM selects trusted advisors, such as friends, family members, or professionals, to serve as supporters. The supporters agree to help the person with a disability understand, consider, and communicate decisions, giving the person with a disability the tools to make her own, informed, decisions… Supported Decision Making will look different for everyone. It means finding the tools and support to help a person with a disability understand, make, and communicate her own choices.”
2https://supporteddecisions.org/
3Here is the link to ACLU’s SDM document: https://www.aclu.org/sites/default/files/field_document/faq_about_supported_decision_making.pdf
The critical differentiation of Supported Decision Making is that it is centered on the individual, ensuring that they are empowered and encouraged to be active participants in all aspects of the decision making processes that directly impact them.
Conclusion
We hope this article sheds some light on the conservatorship process. If this is a legal situation that you find yourself or your loved ones in, please remember this: there should be no judgment placed on people who determine after an evaluation that conservatorship is the right option..
There are times when it truly is the best way to make sure that your loved ones needs are met and provided for. However, if and when at all possible, using a combination of the alternatives can often be the best way to ensure that the individual is still center stage, prioritized in all decision making processes, and has their individuality preserved.
If you have questions about conservatorships or the alternatives, please contact our office and we would be happy to schedule an appointment to discuss your needs and how we can support you in making the best decision for you and your loved ones.
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