I was initially going to make this discussion as a video, and I still might; however, the video obviously takes more time. Below is the discussion about California conservatorships – specifically, what is a California conservatorship, an overview.
First – a reminder and an obligatory disclaimer – this discussion is only a summary of a complicated topic. You need to consult with an attorney about your situation. You cannot rely on this discussion for your situation. And this is not a solicitation for services inside or outside of California, I only represent clients in California, I don’t know anything about your situation or case, and you have not hired me for your situation or case.
Now, that having been said, the following is an overview discussion about California conservatorships.
A conservatorship is a court proceeding where the court legally appoints someone to make and manage personal, medical, daily living, residential placement, or financial matters and decisions for another person.
The person whose rights are being taken away or limited is called the conservatee. The person who is being appointed to manage matters and make decisions for the conservatee is called the conservator.
A conservatorship is a serious legal proceeding because the court, which is a state governmental entity, is being petitioned to take away or limit some of the prospective conservatee’s freedoms and personal and constitutional rights.
The conservatee has the right to fight or oppose the conservatorship, who might be appointed, and the powers of the conservator. And a prospective conservatee has the right to a jury trial.
You might ask, when is a conservatorship needed? Typically a conservatorship might be needed when a person can no longer make and manage the personal, medical or financial matters and decisions for herself or himself, and she or he hasn’t legally appointed someone else to handle those matters and decisions.
So, for example, a conservatorship might be needed if there are no, or insufficient, power of attorney and trust documents, and the person no longer has the mental capacity to execute those documents or refuses to do so.
On the other hand, a conservatorship should not be granted if there is a less restrictive way to provide the help or assistance that is needed, and if the court grants the petition for conservatorship, the court can order only the least restrictive terms, conditions and limitations that are necessary under the circumstances.
The person who is petitioning for conservatorship has the burden of producing sufficient admissible evidence to establish that the court should grant the conservatorship. Conservatorship proceedings can be very contentious.
If a conservatorship is granted, the case remains with the court for future review of the actions taken or not taken by the conservator, accountings if the conservatorship is of the estate, and whether the conservatorship is still needed.
Often a conservator is required to make very important and serious decisions. The conservatee and other people can oppose or object to what the conservator is going to do or has done. Sometimes the case will go back to court for the court to make decisions or orders.
The conservator needs to be represented by an attorney. The conservatee will be represented by an attorney if the conservatee requests one. And in conservatorship disputes it is common for other family members or friends to also be represented by legal counsel.
Recent California conservatorship court decisions have dealt with conservatee’s rights including the right to a jury trial, and in a very recent case the appellate court overruled the trial court, holding that the conservatorship should not have been granted because a friend had instead offered to provide the help and assistance that the prospective conservatee needed.
I have already explained that a prospective conservatee has the right to oppose the conservatorship, and to a jury trial.
You should also be aware that if the conservatorship is granted, the conservatee might also continue to disagree with decisions and actions that are being made or taken.
And I have also seen situations where the preexisting relationship between the conservatee and the conservator was forever damaged, and situations where the prospective conservatee, or the actual conservatee if the conservatorship was granted, then sought to disinherit the person who petitioned for conservatorship or who was appointed by the court to serving as the conservator.
There are many provisions in the California Probate Code that discuss conservatorship proceedings and duties and rights. There are too many provisions to cover in these materials. However, generally you can look at Probate Code sections 1400 through 3212. Other Probate Code sections are also applicable.
In addition to the conservatee’s rights, I also find particularly interesting and important the provisions that relate to conservator duties and decision making, including how the conservator should go about making decisions and what to consider, possibly including the wishes of the conservatee.
Dave Tate, Esq., San Francisco and California