Whether you’ve been appointed as the conservator of an incapacitated adult, are seeking to be the appointed conservator, or are involved in conservator-related litigation, our conservator lawyers can help.
We will cover all of these topics and more in the forthcoming sections. If you continue to have questions, one of our conservator lawyers can provide further guidance.
Conservators are responsible adults who have been appointed through legal proceedings to protect and care for adults who are unable to care for themselves (called “conservatees”). Conservators are usually family members of conservatees or professional third parties.
A conservator’s job is to protect conservatees from personal and financial harm. They essentially act as agents for conservatees, making important personal and financial decisions for them and litigating on their behalf if it becomes necessary to do so.
A conservator attorney can provide additional information about what the job of a conservator entails.
While the terms “conservator” and “guardian” are often used interchangeably, they have distinct meanings in the state of California:
It is easy to confuse the terms “conservator” and “power of attorney,” but there are several key differences between them.
If an incapacitated adult already has a responsible power of attorney in place, there may not be a need for a conservator. However, if that power of attorney is abusing their powers, the court can appoint a conservator to take over the personal and/or financial affairs of the adult.
There are significant differences between a conservator and a trustee. In general:
There are different types of conservators for different types of needs. For instance, one conservatee may have Alzheimer’s or another form of dementia that makes them incapable of maintaining any independence. Another conservatee may have a mild form of autism that allows them to live independently, but they may need help in making major life decisions.
The California Legislature has created different types of conservators to address the varying needs of conservatees.
General conservators are appointed to either manage a conservatee’s personal decisions (known as a “conservator of the person”), financial decisions (known as a “conservator of the estate”) or both. These type of conservators are typically reserved for older individuals with degenerative conditions that have compromised their mental capacity.
It should be noted that within a general conservatorship, it is possible for the financial conservator to be different from the conservator of the person. Adults who may need a general conservator include:
Limited conservators are usually appointed for developmentally disabled adults (e.g., adults with autism or Down syndrome) who are mostly capable of living independently but need assistance with certain elements of their life. Every limited conservatorship is different in scope.
Some of the powers granted to limited conservators may include:
When an incapacitated adult is under an immediate threat to their health, safety or finances, their loved one can petition the court to be appointed as their temporary conservator until a more permanent solution can be reached. Temporary conservators are typically appointed immediately due to pressing circumstances and are appointed for a limited period of time.
General conservators fall under two broad categories: conservators of the person (i.e., those conservators who have authority to manage the conservatee’s personal affairs) and conservators of the estate (i.e., those conservators who have authority to manage the conservatee’s financial affairs).
No two conservatees are alike. For instance, one conservatee may be capable of tending to their own personal affairs but has lost competency in handling financial matters. They will need a conservator of the estate (also called a “financial conservator”).
Another conservatee may have the competence to manage their finances but requires assistance tending to their personal needs of food, shelter and health care because of a physical disability. They will require a conservator of the person.
Of course, it’s also possible that just having a financial conservator or a conservator of the person won’t provide sufficient protection to the conservatee. When this happens, both a conservator of the estate and a conservator of the person will be required.
The duties of conservators largely depend on the type of conservatorship they have, as well as on the needs of the adults for whom they are caring. In essence, however, conservators have many of the same duties to conservatees that parents or guardians have to their minor children.
The duties of financial conservators (i.e., a conservator of the estate) include:
The duties of conservators of the person include:
It is important for conservators to keep their fiduciary duty to conservatees in mind at all times. They must always act in the conservatee’s best interest. If you are a conservator, remember the following:
It is recommended for conservators to consult with a conservator attorney immediately after they are appointed to gain a more in-depth understanding of their duties.
The specific powers of a conservator will vary on a case-by-case basis. Generally, conservators have autonomous authority to make most decisions on behalf of conservatees, but for certain major decisions, the conservator may be required to obtain advance approval from the court.
Rights conservators of the person generally have without court approval include:
Rights conservators of the person generally have only with court approval include:
Rights conservators of the estate generally have without court approval include:
Rights conservators of the estate generally have with court approval include:
If any confusion exists as to what your rights are as a conservator, it is crucial to speak with a conservator lawyer, who can explain them to you and help you avoid legal retaliation for overstepping your boundaries.
Conservators are entitled to compensation for the hours they work as well as reimbursement for any expenses they incurred on the job.
If a conservator is seeking to be paid from the conservatee’s assets, they must receive approval from the court before issuing any payments to themselves. It is important for conservators to keep detailed work logs in case the court asks to examine them.
Selling property is a right afforded to conservators. There is a caveat, however. The conservator must obtain court permission to do so. Also, the profits of the sale must benefit the conservatee and not the conservator.
If it becomes necessary to sell the conservatee’s property, a conservator lawyer can help you secure the necessary permission to move forward with the conservatorship sale or auction.
Yes. Conservators are required to periodically update the court concerning the status of the conservatorship. If a financial conservator has been appointed, the conservator must also file periodic accountings with the court.
As previously stated, the conservator may also be required to seek approval from the court prior to making certain life-changing decisions for the conservatee, such as moving them into an assisted-living facility or consenting to certain medical procedures for them.
Being a conservator is a lot of work. Don’t go about it alone. Our conservator attorneys can help make the job infinitely easier by providing guidance and helping to address any problems that arise. They can even help you litigate on behalf of the conservatee or defend any claims brought against you should that become necessary.
If you wish to protect an adult loved one with a conservatorship, our conservator lawyers can petition the court to have you, or another interested person, appointed as conservator.
Keep in mind that if there is a power of attorney or trustee in place, the court may be less likely to approve the petition, since the cost of a conservatorship can be burdensome for the conservatee. However, many conservatorships are initiated because the power of attorney or trustee is committing financial abuse or otherwise abusing their power to act on behalf of the proposed conservatee. A conservator attorney can help you get them removed and replaced with you appointed as conservator.
Likewise, the court will expect to see a pattern of unsound judgment and behavior on the part of the proposed conservatee, not a few isolated incidents of incompetence or undue influence.
Call our conservator attorneys to learn more about becoming a conservator.
It can be challenging to stay on top of all your responsibilities if you are a conservator. From preparing accountings to making medical decisions on behalf of the conservatee, the job of a conservator can be taxing.
Regardless of whether you are a new conservator or private professional fiduciary acting as conservator, our conservator lawyers can help lighten the load by providing counseling regarding your duties and streamlining any court procedures.
If you are a conservator needing to bring a claim against third parties for the benefit of the conservatee — for example, if you believe the conservatee to have been financially abused — you can hire a conservator lawyer to litigate on the conservatee’s behalf. In the case of financial elder abuse, if the conservator lawyer proves the abuse, you may be able to recover the conservatee’s lost property, as well as damages and attorney’s fees.
In these kinds of disputes, our conservator attorneys can represent conservators as well as wrongfully accused offenders.