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Message #669 Conservatorships

mp3 #669 What is a Conservatorship? (mp3 file)

What can you do if a member of your family, or a friend, or anyone that you care for, becomes unable to personally care for themselves or unable to manage their monies?

In California, the Superior Court can appoint a conservator to assume responsibility for the person who is unable to care for themselves or for the estate of a person who is unable to manage his or her money, or for both. The conservator may be one or more individual persons, or in the case of a person's estate, it may be a non-profit corporation or a bank.

A conservator of the person may be appointed for a person who "is unable properly to provide for his or her personal needs for physical health, food, clothing or shelter. A conservator of the estate may be appointed for a person who is substantially unable to manage his or her own financial resources or resist fraud or undue influence. A single person may be appointed as conservator of either a person, an estate, or both.

The person who is unable to manage his or her self or his or her property is called the conservatee. A conservatee may be a person who is physically or mentally disabled, may simply be a person who does not pay attention to his or her affairs because of age or disinterest or may simply be a person not wanting to handle their own affairs and requests the appointment of a conservator to manage those affairs.

The Superior Court of the State of California may appoint a conservator for an adult of any age, or for a person under the age of eighteen who has been married or whose marriage has been dissolved. It the person who needs help or who is unable to manage his resources is under the age of 18 and not legally emancipated, then the proper legal procedure is a guardianship rather than a conservatorship.

In the state of California, there are three types of conservatorships. Of the three, the first two are considered Probate Conservatorships. The first is called a general conservatorship which is established over a conservatee who may be ill, physically or mentally disabled, simply unable to meet his or her personal needs or to manage his or her financial affairs. The Probate Code provisions relating to conservatorships and other protective proceedings are found in Probate Code Sections 1800 through 3925. You may read these code sections by inquiring at your local law library and asking for the California Probate Code Section 1800 through 3925. Within those code sections you will find all the rules relating to persons who serve as general conservators.

The second type of probate conservatorship is called a limited conservatorship. A limited conservatorship is one that is imposed over a "developmentally disabled adult. A developmentally disabled adult is an adult whose progress has been monitored by the local County Regional Office for Disabled Adults. A limited conservatorship differs from a general conservatorship in that the powers granted are specifically designated by the Court with the intent of allowing the developmentally disabled adult to function within his or her greatest capacity or means. This means that in a general conservatorship a conservator may be granted wide and sweeping powers to completely handle the life of the conservatee. In a limited conservatorship, the conservatee is allowed to retain power over those affairs of his life that he or she can aptly manage in order to allow the developmentally disabled person to continue to function as independently as his or her skills will permit.

A third type of conservatorship within the state of California is called a mental health conservatorship which is established as an "LPS conservatorship" named for the state legislators Lanterman- Petris-Short who developed the guidelines for such a proceeding. A LPS conservatorship is a proceeding conducted under the County Department of Mental Health which will make the determination as to the necessity of such a proceeding.

To establish a general conservatorship under the California Probate Code, you need to file a petition with the Court in the area where the proposed conservatee is living, temporarily resides or owns property. This is known as a petition for conservatorship (or limited conservatorship). The form is available at the superior Court Clerk's office of the Court where you will file.

In the petition you must state the name and residence of the proposed conservatee, the reasons for the establishment of the conservatorship and the powers you request. You must additionally give notice of the conservatorship proceeding to the proposed conservatee, by personally serving the conservatee with a copy of the petition and a citation to appear in Court on the date of the hearing, as well as notifying by mail all relatives in the second degree to the conservatee. This means that a proposed conservatee's spouse, parents, grandparents, brothers and sisters as well as children and grandchildren must all be notified of the pending proceedings. If the proposed conservatee is unable to attend the hearing on the conservatorship because of health, disability, refusal or otherwise, a Court investigator must be appointed to interview the proposed conservatee prior to the hearing. A form requesting appointment of a Court investigator is available at the Superior Court Clerk's office and must be filed at the same time as the petition for health conservatorship. In addition, if the proposed conservatee health prohibits him or her from attending the the conservatorship hearing, an accredited medical practitioner (doctor or healer) must sign a declaration attesting to the reasons why the proposed conservatee is physically unable to attend the proceeding.

In the case of a limited conservatorship, the forms utilized are the same but additional notice must be given to the regional center where the developmentally disabled adult is registered in order that a representative of the center may evaluate the proposed limited conservatee and make a report to the Court assessing that persons ability to function and to recommend to the Court what powers should be granted to the limited conservator.

At the time of hearing on the conservatorship, the proposed conservator or petitioner must appear and be appointed by the Court. The proposed conservatee may appear and object to the appointment, may state the reasons why he or she does not want a conservator appointed to handle his or her person or affairs and may request time to retain an attorney or request the Court appoint an attorney to advise the proposed conservatee during the course of the proceeding.

Any interested person may also appear and oppose the appointment of a conservator on specified legal grounds which, if substantiated, could result in the dismissal of the petition.

A general or limited conservatorship lasts until it is ended by the Court either because of the death of the conservatee, the absence of further need for a conservator, or sufficient skills demonstrated by the developmentally disabled person such that a limited conservatorship is no longer necessary. If you are appointed as a conservator, you will be responsible for seeing that a person is properly cared for or that his or her finances are properly managed or both. You will be required to give periodic written reports to the Court as to the status of the conservatee's affairs. You will be responsible for all of the financial affairs of the conservatee and may be required to post a bond, a type of insurance policy, to protect the conservatee in the event you have accidentally made a wrong financial decision.

All of your acts as conservator will be reviewed and approved by the Court. If a particular act is not approved by the Court, especially with respect to financial affairs, the Court may order you to act in a different manner and in the case of wrongful use of the conservatee's finances, may require you to provide proof that you have repaid the conservatee for the amounts of monies wrongfully used by you.

If you are unsure of any acts that you may perform as a conservator, the Court allows you the opportunity to ask for specific instructions to which the Court may approve and give you an order to perform the act, thus protecting you from any further question as to its propriety.

To request an LPS conservatorship, you contact your County Mental Health Department and ask to have your relative or friend evaluated. If the County Mental Health Department finds that the person is mentally disabled and needs a conservator, then the County Mental Health Department will make a recommendation to the County Public Guardian's office, or to the County Department of Social Services, or directly to the Court, depending on the procedures followed in your particular County. One of these County departments will file the necessary Court papers. If you wish to be named by the Court as the person's LPS conservator, then you must make your wishes known to the County agency investigating the conservatorship, and to the Court, before the hearing. Otherwise, the County Public Guardian's office or other agency will probably be appointed by the Court as the person's conservator.

LPS conservatorships offer similar legal rights to the person who needs help, as do probate conservatorships, but LPS conservatorships offer these additional rights:

1. If you are the person who may need a conservator, you must attend all Court hearings;

2. An attorney will be appointed to represent you; and

3. You have the right to a new hearing if you request one, after six months have passed.

Under an LPS conservatorship, the Court has the power to place certain restrictions on your activities, and you may be placed in a mental health treatment facility against your will. These restrictions are not imposed in probate conservatorships.

LPS conservatorships last for only one year, and they must be renewed at a Court hearing in order to continue beyond one year.

You may obtain either a general conservatorship, limited conservatorship or an LPS conservatorship without the services of an attorney. However, if you are appointed as the conservator of a person, you may find that your duties will be much easier if you are represented by an attorney who has knowledge and experience in handling conservatorships.

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