Types of Probate Conservatorships
There are several types of probate conservatorships available to serve the varying needs of each conservatee. In this article, we discuss the types of probate conservatorship offered in California.
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It is an unfortunate fact of life that many people will decline cognitively as they age. While everyone has made a mistake here or there, an adult in need of a probate conservatorship will have demonstrated a pattern of concerning behavior, such as forgetting essential facts about themselves or their families, demonstrating an inability to manage their finances, or neglecting to care for themselves.
If you have decided to file for a probate conservatorship over an elderly or incapacitated loved one, the next step will be deciding what type of conservatorship they need. For example, do they need a permanent or temporary conservatorship? Would a limited conservatorship or general conservatorship be better for their needs? Can an adult solely be under a medical conservatorship if that is the only area in which they need help?
In the following sections, we discuss the different types of conservatorship in California and in what situations each type of conservatorship would be appropriate. If you continue to have questions about what type of conservatorship your elderly loved one needs, don’t hesitate to schedule a free consultation with our conservatorship attorneys.
The adult who is overseeing the personal and/or financial affairs of the incapacitated adult’s life in a probate conservatorship is called the conservator. The incapacitated adult in a probate conservatorship is called the conservatee.
To establish a probate conservatorship, the petitioner must be able to prove their claim that the proposed conservatee is not of sound enough mind to oversee their finances or satisfy their essential daily needs. For example, they generally will be asked to provide documentation from the proposed conservatee’s physicians. The court may also request to hear testimony about the proposed conservatee’s mental state from persons close to them. If a probate conservatorship proceeding is taking place, and the proposed conservatee’s loved ones are against the conservatorship, they are permitted to appear in court to contest the conservatorship.
A probate conservatorship is usually a last resort. Ideally, an adult, while mentally competent, will have taken measures (e.g., by having executed a power of attorney for health care or an Advance Health Care Directive, or by having executed a trust with a successor trustee or a financial power of attorney) to protect themselves in the event of their incapacitation. If the adult had failed to take these steps prior to becoming incapacitated, a probate conservatorship may be the only option available to them.
Probate conservatorships can fit a variety of categories. We discuss types of conservatorship in the following sections.
LPS Conservatorship vs. Probate Conservatorship
What is LPS conservatorship? Lanterman-Petris Short (LPS) conservatorships are reserved for adults with serious mental illness (e.g., schizophrenia or bi-polar disorder) or substance abuse issues (e.g., chronic alcoholism), who are at risk of causing harm to themselves or others. An LPS conservatorship can not only help protect the conservatee’s rights but it can enable mental health professionals to administer treatment to the conservatee without obtaining their consent.
For example, if an adult is experiencing a prolonged and serious psychotic episode, which is causing them to neglect their hygiene, nutrition and general wellbeing, or causing them to be a threat to other persons, their psychiatrist can file a petition for an LPS conservatorship with the county’s Public Guardian. If the Public Guardian agrees with the psychiatrist’s assessment, they will petition the court for an LPS conservatorship of the person. At the conservatorship hearing, the judge will decide based on the facts presented and testimony from the physicians and close acquaintances of the proposed conservatee whether an LPS conservatorship is warranted, and, if so, whether an LPS conservatorship of the estate is needed in addition to the LPS conservatorship of the person.
LPS conservatorships do not fall under the umbrella of probate conservatorships, which are established to protect incapacitated adults.
A probate conservatorship can be initiated by virtually any responsible adult, whereas an LPS conservatorship can only be initiated by the psychiatrist of an adult with serious mental illness or another grave disability through the office of the Public Guardian.
For example, is the proposed conservatee only temporarily incapacitated (e.g., they are in a medically induced coma), or has their cognitive function permanently declined?
Is the proposed conservatee capable of living mostly independently, or do they need help with essential tasks?
Is the proposed conservatee able to manage their financial affairs but not their daily needs, or vice versa?
In every scenario mentioned, the proposed conservatee would benefit from a probate conservatorship; however, the type of conservatorship each proposed conservatee needs will be different.
A probate conservatorship, which can be temporary or permanent, is classified as either a general conservatorship or a limited conservatorship. Under the umbrella of general conservatorships are conservatorships of the estate and conservatorships of the person. In the following sections, we discuss the different types of conservatorships available in California and the purposes of each.
Permanent Conservatorship vs. Temporary Conservatorship
What is a temporary conservatorship? What is a permanent conservatorship? When filing a petition for a probate conservatorship, the first thing you will have to decide is whether the proposed conservatee needs a temporary conservatorship or a conservatorship that will last for the remainder of their life.
For instance, if the proposed conservatee has been incapacitated as a result of an accident, and their loved ones need to consent to medical procedures on their behalf, a temporary conservatorship may be all that is needed to empower them to act. If the conservatee regains consciousness, the temporary conservatorship can be terminated without having any proceedings for a permanent conservatorship.
On the contrary, if the proposed conservatee has advanced Alzheimer’s disease, a cognitive disorder that generally grows more severe with time, a permanent conservatorship may be the better option since the conservatee will require around-the-clock care and supervision for the rest of their days.
Sometimes a proposed conservatee requires both a temporary and permanent conservatorship. For example, when a situation is so dire that a proposed conservatee is under immediate threat of harm to their person (e.g., if the proposed conservatee is being abused) or their finances (e.g., if the proposed conservatee is being defrauded out of money or property), a temporary conservatorship can be obtained to protect them until a permanent conservatorship can be set up. If there is sufficient evidence warranting a conservatorship, a temporary conservatorship can be secured in almost no time with help from a skilled probate attorney.
Take, for example, one of Keystone’s clients who was concerned about her elderly mother with advanced Alzheimer’s disease living inside her brother’s home that had become a hotbed of Covid-19 cases at the start of the pandemic. Additionally, the mother’s caregiver showed symptoms of Covid-19, but was continuing to tend to the mother without wearing any personal protective equipment. The client was rightfully concerned that her mother could contract Covid-19 by continuing to stay in her brother’s home. Keystone filed for a temporary conservatorship and secured one within a few days. This allowed the client to move the mother into her home, where she was cared for by a licensed nurse and protected against Covid-19. The speed and efficiency with which Keystone handled this conservatorship matter allowed the client to keep her mother safe until a permanent conservatorship could be established. “You have truly acted to save my mother’s life,” the client wrote Keystone in an email.
General Conservatorship vs. Limited Conservatorship
What is a limited conservatorship? What is a general conservatorship? How do you decide which conservatorship is right?
Probate conservatorships are classified either as a general conservatorship or a limited conservatorship.
A general conservatorship is ideal for an elderly person or an incapacitated adult who is unable to manage essential aspects of their life — such as their finances, health care or daily needs — on their own. A general conservatorship may also be appropriate for younger adults who have been gravely impaired (e.g., from a car accident). General conservatorships can be categorized as a conservatorship of the estate, a conservatorship of the person or both.
A limited conservatorship, on the other hand, is ideal for developmentally disabled adults, such as those with Down syndrome or autism. Conservatees in limited conservatorships do not require much supervision or care in their day-to-day life, and their conservators generally only get involved when the conservatees are making significant life decisions, such as deciding where to live, whether to consent to a serious medical procedure or get married.
When deciding whether to petition for a general conservatorship or a limited conservatorship, you should consider the mental competence of the proposed conservatee. For instance, if the proposed conservatee is on the autism spectrum but is able to meet their daily needs and work, a limited conservatorship for the developmentally disabled should be sufficient in protecting them. If the conservatee has a severe mental disability that makes them unable to manage their personal and financial affairs, they likely need a general conservatorship.
After learning the details of your conservatorship matter, a probate attorney should be able to advise you about which type of conservatorship is ideal for your elderly or incapacitated loved one.
Conservatorship of the Person vs. Conservatorship of the Estate
Under the umbrella of general conservatorships are conservatorships of the person and conservatorships of the estate.
A conservatorship of the person is sometimes referred to as a medical conservatorship since it enables the conservator to manage the conservatee’s health care; however, a conservatorship of the person is not only medical in nature. Conservators of the person are responsible for ensuring the essential daily needs of the conservatee, such as food, clothing, health care and shelter, are met. For example, if the conservatee is sick, it is the conservator of the person’s responsibility to seek medical care for them.
The responsibilities of a conservator of the person include:
- Deciding where the conservatee lives (if the conservatee needs to be moved into an assisted-living facility, the conservator will need to seek court approval first)
- Arranging for the conservatee’s shelter, meals, hygiene, clothing, health care, recreation, etc.
- Making medical decisions on behalf of the conservatee (conservators will need court approval when making life-changing decisions for the conservatee)
A conservatorship of the estate is sometimes referred to as a financial conservatorship, and it enables the conservator to manage a conservatee’s financial affairs for them. Conservators of the estate are responsible for paying the conservatee’s bills, debts and taxes, among other things. At the start of the conservatorship, they must create an inventory of the conservatee’s assets and their value. From that point forward, they must track every transaction they make using the conservatee’s assets. Conservators of the estate are permitted to sell the conservatee’s assets in order to pay the conservatee’s bils, but only after obtaining court approval and never for personal gain.
The responsibilities of a conservator of the estate include:
- Managing the conservatee’s finances
- Preserving the conservatee’s assets
- Collecting the conservatee’s income
- Paying the conservatee’s bills
- Responsibly investing the conservatee’s money
- Preparing and filing income tax returns
- Filing periodic accountings with the court
If the conservator of the person and conservator of the estate are two different people, it will be necessary for them to regularly communicate with each other. For example, if the conservator of the person needs money to cover the medical expenses of the conservatee, they will have to obtain the funds from the conservator of the estate.
If you still are confused about whether your elderly or incapacitated loved one needs a conservatorship of the person or a conservatorship of the estate, a conservatorship lawyer will be able to provide guidance.