The Definitive Guide on How to Get a Conservatorship
Important Note: While the type of fiduciary legal arrangement in which a responsible adult manages the affairs of an incapacitated adult is referred to as a "guardianship" in some states, guardianships in California only refer to legal arrangements between an adult and a minor.
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When our loved ones reach old age, it may be necessary to take steps to protect them and their finances from harm.
For example, many elders have lost substantial sums of money to elder financial abuse perpetrated by persons close to them or third-party scammers.
Other elders have lost the ability to manage their most basic needs, such as hygiene, nourishment, and health care.
Sometimes, elders fall victim to the undue influence of those close to them, and they may even modify their will or trust as a result of it.
When an elder’s declining mental competence starts to get in the way of their diligently caring for their own wellbeing or finances, it may be time to speak with a conservatorship lawyer about whether your incapacitated loved one could benefit from having a conservator of the person, conservator of the estate, or both managing their affairs.
In this article, we will go over how to get a conservatorship in California and how to be an ethical and effective conservator, as well as explain the steps involved in filing for a conservatorship. We will also address other frequently asked questions relating to the conservatorship process.
What Is a Conservatorship?
A conservatorship is a type of court proceeding in which a responsible adult asks the court for the authority to manage the personal and/or financial affairs of a vulnerable adult who is incapable of effectively managing these aspects of their lives on their own.
In many states, the terms conservatorship and guardianship may be used interchangeably; however, in California, conservatorships involve an adult managing the affairs of another adult who is incapacitated, and guardianships involve an adult assuming responsibility for a minor.
When a conservatorship has been established, the person who has been appointed to manage the incapacitated adult’s affairs is called the conservator. Conservators can either be a conservator of the person or a conservator of the estate, or they can be both. We will go over how to become a conservator later in this article.
The incapacitated adult in a conservatorship is referred to as the conservatee. They can be under a limited conservatorship (which is generally reserved for developmentally disabled adults and allows the conservator limited authority over the conservatee), a general conservatorship (which is generally reserved for adults who are unlikely to regain competence and allows the conservator broad authority over the conservatee) or a temporary conservatorship (which is generally enacted on an emergency basis for a specified period of time and purpose).
What Is a Conservator of the Person?
A conservator of the person is responsible for managing the personal affairs of the conservatee. This means they do things like ensuring the conservatee has proper medical care, food, clothing, hygiene and shelter.
If you were to visit the home of your elderly parent and notice unsanitary conditions or a lack of proper food in the fridge, or you notice they are not able to take their prescribed medications on their own or are not able to shower and clothe themselves, your parent may need a conservator of the person to help them navigate their daily life and health care needs.
What Is a Conservator of the Estate?
A conservator of the estate is responsible for managing the financial affairs of the conservatee. This means they do things like oversee the conservatee’s bank accounts, pay their bills and file their taxes.
If you were to help your elderly parent with paying some bills and notice large unexplained sums of money missing from their bank accounts, or you notice they are not able to pay their bills on time or file taxes on their own, your parent may need a conservator of the estate to help protect their financial assets.
The following steps describe how to apply for a conservatorship and the conservatorship forms in California that are needed:
1. Gather evidence to support your claim that the proposed conservatee needs to be under a conservatorship.
Before proceeding with the process of filing for a conservatorship, it is important to compile any evidence you have to support your claim that the proposed conservatee is incapable of managing their person and/or finances.
A good first step is to reach out to the proposed conservatee’s physicians, who may be able to provide insight and documentation relating to the proposed conservatee’s mental state. In fact, in order to have a permanent conservator appointed, the court will need to see proof of the conservatee’s mental state in the form of a document known as a “capacity declaration” — a declaration filled out by a medical expert that attests to the conservatee’s level of mental competence.
Does the proposed conservatee have a caretaker? Perhaps they might be able to provide insight as well. If the proposed conservatee was scammed out of thousands of dollars, try to find proof. Similarly, if their home is unsanitary or unsafe, take photos.
What is important to remember here is that the court will not take your word for it if you say that a loved one needs a conservatorship; you will have to prove it. Because a conservatorship basically strips an adult of most of their freedoms and rights, the court will make sure to do its due diligence in verifying a conservatorship is warranted.
2. Speak with an experienced conservatorship attorney.
Keystone’s probate attorneys are frequently asked: “Do you need a lawyer to file for a conservatorship?” The answer to this question is complicated, because while a do-it-yourself conservatorship is possible, a do-it-yourself approach could end up not only costing you more in the long run but also being detrimental to the wellbeing or finances of the proposed conservatee, who is free to continue living independently until they are under a conservatorship.
As was mentioned in the last step, the court is not likely to grant a conservatorship if there is any doubt as to whether one is genuinely needed. Furthermore, conservatorships can be expensive to establish. That is why retaining a skilled conservatorship lawyer to help with the conservatorship process is recommended. They have the experience and knowledge to 1) know whether a conservatorship is warranted for a particular adult, and 2) present your case in the best possible light on the conservatorship application. A conservatorship lawyer can also assist with the process of gathering evidence to support your claim.
3. File a conservatorship petition with the appropriate probate court.
The next step in becoming a conservator is filling out and submitting a Petition for Appointment of a Probate Conservator to the probate court in the county where the proposed conservatee resides. If you have a conservatorship attorney, they will be able to handle this step for you, effectively presenting the facts of your case on the form.
The form will ask for information about you (i.e., the proposed conservator), the proposed conservatee and family members of the conservatee. Additionally, it will ask why it is necessary for the proposed conservatee to be under a conservatorship.
4. File a Confidential Supplemental Information form.
Another important conservatorship form in California is the Confidential Supplemental Information form. It asks you to elaborate on the information you provided in the previous form about why you believe the proposed conservatee requires a conservatorship. Here, you should bring up concrete examples from the proposed conservatee’s life.
For example, have they fallen victim to multiple phone scams, losing thousands of dollars as a result? Have they lost an excess amount of weight by failing to properly nourish themselves? Have they missed multiple medical appointments or not paid their health insurance premium, causing a gap in coverage? On this form, it is important to provide examples that establish a pattern of concerning behavior.
This form also asks you to provide reasons why the alternatives to conservatorships — such as the proposed conservatee voluntary accepting informal or formal help, a power of attorney (e.g., Advance Health Care Directives) or trust — are either unavailable or unsuitable. When a conservatorship is granted, the court is required to supervise it — which can be a burdensome and costly job. Therefore, the court stresses the importance of trying less restrictive alternatives to conservatorships prior to filing for a conservatorship. But, if the proposed conservatee has already become mentally incompetent without executing documents to empower a third party to act on their behalf (e.g., a power of attorney designating an attorney-in-fact or a trust designating a trustee), less restrictive alternatives may not be available to them since they would have to be mentally competent to execute new estate planning documents.
5. File a Confidential Conservator Screening form.
The Confidential Conservator Screening form is all about you, the petitioner. It asks about your relation to the proposed conservatee and your criminal background, among other things.
Since the proposed conservator would have access to the conservatee’s home, medical records, finances and more, the court does its due diligence in making sure the proposed conservator is upstanding and unlikely to exploit the conservatee or misuse their authority.
6. Review and sign the Duties of Conservator form.
One of the most important conservatorship forms in California you will have to sign is the Duties of Conservator and Acknowledgement of Receipt of Handbook form. This form lays out both the conservatee’s rights and the powers you will have as a conservator if the conservatorship is ultimately granted. It is important to familiarize yourself with both the conservatee’s rights and your powers as their conservator so you remain careful to never breach your fiduciary duty.
If this is your first time applying for a conservatorship, it is a good idea to keep a lawyer on your team to guide you even after the conservatorship has been granted. This way, you can focus on caring for your elderly loved one while the lawyer handles the more complex aspects of the conservatorship.
7. Serve notice to the proposed conservatee that you have initiated a conservatorship hearing.
The initial petition from the first step as well as a Notice of Hearing — Guardianship or Conservatorship should be delivered to the proposed conservatee by a person who is not involved in the conservatorship, such as a third party or family member. A citation, which formally requires the proposed conservatee to appear in court at the hearing on the petition, may also need to be served.
8. Mail notice of the conservatorship hearing to the conservatee’s close relatives.
The same two documents provided to the proposed conservatee — a copy of the petition from the first step and the Notice of Hearing from the previous step — should be mailed to the proposed conservatee’s close family members, including their spouse or domestic partner, children and siblings. This way, if anyone is opposed to the conservatorship, they can attend the conservatorship hearing to contest it.
Again, this step should be completed by someone other than the petitioner, such as a third party or a family member, who is not involved in the conservatorship.
While all the required probate conservatorship forms in California can seem overwhelming, they can be completed by or with help from a conservatorship attorney.
Do You Need a Lawyer to File for a Conservatorship?
While do-it-yourself conservatorships are an option, they are not a good one because they could delay when your elderly loved one ultimately gets the help they need to navigate their finances and daily life. An experienced conservatorship attorney will know how to present the facts of your case effectually and concisely, increasing the likelihood you will get the outcome you want at the initial conservatorship hearing.
Consider the story of one of Keystone’s clients. She was concerned because her elderly mother, who has advanced Alzheimer’s disease, was living in a house that had become a hotbed of Covid-19 cases at the start of the pandemic. Not only was the mother’s caretaker tending to the mother while having an active infection without wearing any of the recommended personal protective equipment, but the client’s brother was having social gatherings inside the home, flagrantly disregarding the risk such gatherings posed to his mother’s health.
The client was worried her mother, who was in her 80s, might contract Covid-19, which for her could be life-threatening. Within a few days of the client coming to Keystone, Keystone had already managed to get a hearing for a temporary conservatorship. Despite the brother having attended the hearing to contest the conservatorship, the judge granted the client’s petition after hearing just the initial arguments.
Because of the urgency and efficiency with which Keystone handled this case, the client was able to move her mother into her home, where she was properly cared for by a licensed nurse and protected against Covid-19. “You have truly acted to save my mother’s life,” the client wrote Keystone in an email. To learn more about this case, read the full case study.
If the client had opted for a do-it-yourself conservatorship, the process could have taken longer, which could have had a negative impact on her mother’s health, and the outcome may not have been as desirable. Before going the route of a do-it-yourself conservatorship, you should at least schedule a free consultation with one of our attorneys to discuss your case.
How Long Does It Take to Get a Conservatorship?
How long it takes to get a conservatorship depends on the type of conservatorship you are requesting. For instance, a hearing for a temporary conservatorship can be obtained in fewer than five court days if the court determines the proposed conservatee is under immediate risk, like in the case discussed in the previous section.
If the petitioner is seeking a permanent conservatorship, the process can take longer, as petitions for the appointment of a permanent conservatorship are often scheduled for hearing months after filing. Of course, if adverse parties object to the petition, the process can take even longer and may require an evidentiary hearing or trial to resolve.
What Is the Cost of Conservatorship?
Attorney fees for a conservatorship can vary depending on the facts of the case. Fees are ordinarily charged at the attorney’s hourly rate.
There is potential for fees to be minimal. For example, when the proposed conservatorship and proposed conservator are uncontested by both the proposed conservatee and the family of the conservatee, the petitioner may only incur charges for the preparation of the petition and the attendance at the initial hearing.
When a conservatee or other concerned parties, such as family members or friends, are disputing a conservatorship or the appointment of a proposed conservator, the cost of a conservatorship may increase significantly. That is because in order to pursue appointment, your conservatorship attorney may need to conduct discovery, engage in law and motion practice, participate in mediation and eventually even participate in a trial where the court will make a final determination as to whether the proposed conservatorship is appropriate.
After the conservator is appointed, a probate code statute allows the petitioning party to seek reimbursement of their attorney’s fees from the conservatee’s assets. The petitioning party has the right to seek reimbursement even if their proposed conservator was not appointed so long as they demonstrate the fees they incurred are reasonable and provided a benefit to the conservatee.