Tag Archives: APS

What Is A California Conservatorship – An Overview

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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.

You can find additional information on my blogs at http://californiaestatetrust.com and http://auditcommitteeupdate.com, and you can call me at (415) 917-4030. That’s all for now. Thanks for reading.

Dave Tate, Esq., San Francisco and California

San Mateo County’s New Elder and Dependent Adult Protection Team – The Good and the Insufficient

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You may have heard that the San Mateo County Board of Supervisors this month passed a resolution funding the Elder and Dependent Adult Protection Team “EDAPT” (also sometimes known as or similar to “FAST” or “Financial Abuse Specialist Team” in other counties such as Los Angeles) for two years from the County’s Measure A funding. The initiative is funded with approximately $3.13 million taxpayer dollars over two years with the funding to begin July 1, 2015 and will run through June 2017. Click here for the link. The comments in this blog are my own. As you may know, I have handled trust, estate, conservatorship and elder abuse litigation cases for over 20 years. I have become a bit more expressive or activist in my comments. These comments are not criticisms of anyone who is trying to combat elder and dependent adult abuse. But the fact is that resources are inadequate to identify and then to stop and remedy abuse. And although resources will always be inadequate, one resource, private attorneys, is entirely or almost entirely unutilized in this battle. Until entities that receive reports of abuse arrange for a procedure to refer cases to private attorneys there is absolutely no way that those agencies, including Adult Protective Services (APS), the District Attorney, the police, county counsel, etc. can come close to protecting the abused and remedying the damages that they suffer. In fact, the link above seems to indicate that the new EDAPT initiative is primarily a community educational program, which does not involve legal or court system remedies.

Let me provide you with a quick example that should help to explain the situation and the grossly inadequate resources. The Link above states “Research shows that for every one case of older adult abuse [note that this apparently does not include dependent adult abuse] that is reported – there are another 24 that go unreported.”  The link also states “Reports of older adult abuse have been on the rise as the county’s older adult population continues to grow – which is estimated to grow by over 70% by 2030.” I don’t know how many incidents of abuse Adult Protective Services receives in an average month in San Mateo County – maybe one of my readers will respond with the average monthly number. Let’s just say that in an average month APS receives 30 reports of elder or older adult abuse (again, we are not even counting the additional cases of dependent adult abuse reporting). I suspect that the reports exceed 30 per month; however, if research indicates that for every report of older abuse there are another 24 that go unreported, that would be 30 x 25, or 750 incidents of adult abuse in an average month. Do you know how much time and effort it takes to stop and then remedy just one case of elder abuse through the court system? Well . . . that number does vary from case to case, but I can tell you that based on my experience in my cases, the number of hours is huge and the time (i.e., months or even years) that it can take also can be staggering. I can also fully confirm that abusers actively fight legal actions that are brought against them. They know or believe that resources are limited and inadequate, and that they might stand a reasonable chance of beating the system.

The new initiative is for two years, at an average funding of roughly $1.5 million per year. The funding started July 1, 2015, so we already have 3 months done in the first year of the initiative. I have been looking for a detailed two-year plan for the initiative – perhaps one of my readers can tell me where I can find that plan. I have written and videoed about this topic before, and the inadequate resources. Again, I fully support the efforts of everyone who is fighting elder and dependent adult abuse, but let me say that resources are inadequate, and you really, really need to bring vetted private attorneys into the effort through referrals or by whatever means makes the report receiving agencies (i.e., APS, etc.) comfortable.

Best, Dave Tate, Esq. (and licensed inactive CPA), San Mateo County, San Francisco Bay Area, and throughout California

There Needs To Be A Law – Petitioning For Conservatorship Should Not Disinherit You

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Short and sweet. I’m not sure what the wording should be, but we need a law that to some extent protects a person from being disinherited for filing a petition for conservatorship.

The situation that I have in mind: a son or daughter files a petition for conservatorship of their mother or father. In doing so, the son or daughter risks that mom or dad will be very angry with the petition and will seek to change their estate planning to exclude or disinherit the son or daughter.  There needs to be some protection for the son or daughter, whether the petition for conservatorship is granted or not.

I’m not saying that I favor conservatorships. A conservatorship can be a serious restriction on a person’s constitutional rights and freedom. All I’m saying is that a son or daughter should not have to fear possible disinheritance for filing a petition for conservatorship in a situation where there is no finding that the petition was filed in bad faith or where there is evidence that a conservatorship might be necessary even if less restrictive options are available.

Dave Tate, Esq. (San Francisco and California), click link to this blog, Law Office of David W. Tate, and also working with Albertson & Davidson LLP, northern and southern California click link to Albertson & Davidson website.