Conservatorships

What is it?

A conservatorship is a legal proceeding where the court legally adjudicates that someone over the age of 18 lacks capacity to take care of themselves physically or financially.

Often, a probate conservatorship is advised when an older person is unable to make their own medical or financial decisions because they are injured, sick or not aging well.

Adults who are developmentally disabled or the victims of a catastrophic illness or accident also may have a limited conservatorship as noted below.

Mental health conservatorships, known as an LPS Conservatorship, are for those who are gravely disabled due to a mental health diagnosis under the DSM-5. These LPS conservatorships can only be initiated by the Public Guardian upon a recommendation by the treating psychiatrist and/or mental health professional. These LPS Conservatorships are only one year in length and automatically expire after one year if not petitioned to be renewed.

In most cases, a family member or loved one obtains a probate conservatorship over an elderly adult who needs assistance. For a conservatorship to be ordered by the judge, the adult needing help is one who lacks capacity or consent to the conservatorship. A conservatorship proceeding usually takes place in the county where the person resides.

DO I NEED ONE?

A conservatorship is necessary for those individuals who have neither a power of attorney or healthcare directive, and have lost the ability to make informed decisions and/or care for themselves.

A conservatorship may also be necessary for other reasons, such as an invalid or fraudulent power of attorney document.

How Do I proceed?

If you need to obtain a conservatorship over a loved one, you can hire the TEAL team at TLD Law to assist you in filing the Petition, confidential documents, and attachments. Because conservatorships are so nuanced and possibly stripping away of someone’s due process rights, be prepared to answer many questions. If the loved one you are seeking to conserve objects, be prepare for a trial on this matter and it can be a jury trial if the proposed conservatee so elects to do so.

HOW TO AVOID CONSERVATORSHIP

In California, the court only grants a conservatorship where there is no other least restrictive alternative available. A conservatorship can be avoided if the person already has valid estate planning documents in place like a revocable living trust, a durable power of attorney, or advance health care directive. If the estate planning documents exist and are valid, they can often be activated in lieu of a conservatorship. The TEAL attorneys at TLD Law can consult with you to see if a conservatorship is needed.

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TRUST AND PROBATE LITIGATION

This is a narrow type of conservatorship that is obtained over an adult who has a developmental disability from birth or early childhood and lacks capacity now that they are age 18 and older.

A limited conservatorship allows this young adult to have court supervision in place for someone to make medical and financial decisions for this person as they navigate adulthood. A limited conservatorship is often sought when the young adult is receiving services from a local Regional Center or has disabilities that affect their capacity to make sound financial and medical decisions. This conservatorship asks for specific abilities needed to care for someone that the Court is legally adjudicating has a lack of capacity based on a developmental disability.

These are called the seven powers for a limited conservatorship and they are as follows:

The right to fix residence or dwelling of the limited conservatee.
The right to access confidential records and papers of the limited conservatee.
To consent or withhold consent to marriage or registered domestic partnerships.
The right to contract for the limited conservatee.
The power to give or withhold medical consent.
The power to control the limited conservatee’s social or sexual contacts.
The power to make decisions concerning the education of the limited conservatee.

In determining which of these powers to request that the Court grant, it is important to bear in mind that it is a balancing effect between what limitations to place on a Conservatee and assistance they require while still trying to allow for the Conservatee to retain as much of their own autonomy in their personhood.

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