How to Best Protect Your Loved One as Their Conservator
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.
- What is the difference between a conservator of the person and conservator of the estate? How do you know which one is necessary?
- What are your duties to the adult?
- What can’t you do as their conservator?
- Can you charge for your services?
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.
What Does a Conservator Do?
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.
Conservator vs. Guardian
While the terms “conservator” and “guardian” are often used interchangeably, they have distinct meanings in the state of California:
- A conservator refers to a responsible adult who is caring for a mentally incapacitated adult.
- A guardian refers to a responsible adult who is caring for a minor in a guardianship matter.
Conservator vs. Power of Attorney
It is easy to confuse the terms “conservator” and “power of attorney,” but there are several key differences between them.
- A conservator is appointed after an adult becomes incapacitated, whereas a power of attorney is designated when the adult is still competent.
- A conservator requires court permission to be appointed, whereas a power of attorney doesn’t.
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.
Conservator vs. Trustee
There are significant differences between a conservator and a trustee. In general:
- A conservator is appointed to protect the person and/or finances of an incapacitated adult in situations where there is no responsible person already appointed.
- A trustee is named by someone while they are competent to manage trust property and protect the interests of the trust and its beneficiaries.
- If the trustor of the trust becomes incapacitated, the successor trustee named in the trust takes over. If there is no successor trustee named or the successor trustee is incapable of acting, the trustor’s conservator of the estate, if they have one, may be named the successor trustee.
Types of Conservators
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
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:
- The elderly
- Adults with mental disabilities, such as Alzheimer’s or another form of dementia
- Adults with serious mental illness
- Adults who suffered a debilitating accident that resulted in a loss of mental and physical faculties (e.g., they are in a coma)
Limited Conservators
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:
- Deciding on a residence for the adult
- Giving or withholding consent for medical treatment
- Giving or withholding consent for marriage
- Managing the adult’s social and sexual contacts
Temporary Conservators
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.
Conservator of Person vs. Conservator of Estate
What is the Difference Between Person and Estate?
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.
- A conservator of the person is charged with managing the conservatee’s personal affairs.
- A conservator of the estate is charged with managing the conservatee’s financial affairs.
Duties of Conservators
- Paying the conservatee’s taxes and bills
- Collecting the conservatee’s income
- Protecting and managing the conservatee’s assets
- Litigating on behalf of the conservatee if their finances or property were compromised by family members, power of attorneys, trustees or third parties
- Ensuring the conservatee’s basic needs of food and shelter are met
- Staying up-to-date with the conservatee’s health care (e.g., taking them to doctor’s appointments, filling their prescriptions, consenting to medical procedures)
- Litigating on behalf of the conservatee if any aspect of their wellbeing was compromised by family members, power of attorneys, trustees or third parties
- The conservatee’s resources must never be utilized for personal gain.
- Thorough paper trails must be kept containing medical records, sales receipts, bills and more.
- Every decision made on the conservatee’s behalf should be documented.
- Detailed work logs should be maintained.
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.
Powers of Conservators
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.
What Can Conservators Do With and Without Court Approval?
Rights conservators of the person generally have without court approval include:
- Making doctor’s appointments for the conservatee
- Determining who can visit the conservatee and when
- Managing the conservatee’s basic needs of food, shelter, hygiene and clothing
- Moving the conservatee into a locked or secured facility (e.g., a mental health treatment facility)
- Consenting to certain medical procedures and treatments on behalf of the conservatee
- Paying the conservatee’s debts, bills and expenses
- Paying the conservatee’s taxes
- Managing and protecting the conservatee’s assets and property
- Selling or transferring the conservatee’s property
- Selling or transferring the conservatee’s property
Do Conservators Get Paid?
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.
Do Conservators of the Estate Have a Right to Sell Property?
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.
Are Conservators Required to Report to the Courts?
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.
How Conservator Lawyers Can Help
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.
Do You Need to Be Appointed Conservator?
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.
Are You Already 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.
Are You a Conservator Needing to Litigate?
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.
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