Pros and Cons of a Conservatorship in California
If you are considering whether you need to establish a conservatorship, you aren’t alone. Many people have loved ones who may be in need of regular, formalized assistance with their affairs. There are pros and cons to establishing a conservatorship in California. There are also many alternatives that may be more appropriate for your loved one’s situation. Discuss your options with an attorney before making a decision.
What is a conservator?
A conservator is someone appointed by the court to assist someone else who has become incapacitated, for any number of reasons. Basically, restricting the conservatee’s powers over their personal care and/or financial decisions. Courts always have very broad discretion in deciding who to appoint as a conservator. The most common choices are spouses and adult children. In certain special situations, an independent professional, like an attorney or accountant may be a better choice. This creates a “court ordered conservatorship” (also called a “probate conservatorship”) between the protected person (the conservatee) and the responsible person (the conservator).
What does the conservator do?
The conservator is ultimately responsible for supervising the personal, financial or medical matters for the benefit of the “conservatee.” The level of responsible depends on the needs of each conservator. Termination of a conservatorship requires court action. So, before you take on this important task or determine whether a conservatorship is even needed, you should know some of the advantages and disadvantages of a conservatorship.
The pros of establishing a Conservatorship in California – CONSERVATORSHIP PROS AND CONS
One of the primary advantages of a conservatorship is that the court maintains supervision and control over the conservator throughout the entire process. This continuous supervision provides significant protection for the conservatee. This means the decisions relating to the conservatee, or the person at risk, will always be monitored by the court. The most important decisions must be made with court permission. A common example would be when a conservator must decide whether to withhold life-saving medical treatment. In that situation, the conservator is required to file a petition with the court to obtain written permission. Court supervision also serves to minimize mismanagement of funds. In order to monitor these sorts of proceedings, the conservator of the estate is required to provide the court with financial information. The conservator of the person must provide information related to the conservatee’s health, safety, and welfare.
Another benefit is the court oversight of the conservatorship. If there is any information that appears to be inaccurate in the conservator’s reports or court filings, the courts can request further information or hold a hearing to investigate. This protects the conservatee against any potential breaches of fiduciary duties or any mismanagement of conservatee’s funds.
Dementia Powers
Conservators may seek special powers for conservatees who suffer from dementia. The special powers allow a conservator to place the conservatee in a locked facility specially designed for the treatment of dementia and to authorize psychotropic medications meant to treat dementia. Conservators normally do not have these powers and require special court approval.
The cons of establishing a Conservatorship in California
CONSERVATORSHIP PROS AND CONS – One disadvantage of a conservatorship is the cost. Court supervision is somewhat of a two-edged sword. Supervision provides better protection, but it also increases the cost. Since the court remains involved in the proceedings after the conservatorship has been established, the costs can be significant. For example, a conservatorship can includes court costs and fees as well as potential attorney fees. This doesn’t include the costs of third-party professionals. Since the court remains involved in the entire matter and reviews any reports or court filings by the conservator, the overall costs can be high.
Another disadvantage is that the conservatorship proceedings are public so the nature of the conservatee’s assets incapacity are public record and may cause embarrassment for some. The biggest disadvantage for most is the fact that appointing a conservator effectively takes away the conservatee’s autonomy. They are essentially stripped of the ability to make their own decisions about many things. Additionally, another disadvantage is that if a conservator is appointed, the conservatee will have a substantially limited ability to manage their own financial affairs or make decisions related to their health care, housing, or other personal decisions. For most incapacitated individuals, this may not be a significant disadvantage, as they are unable to make these decisions for themselves. However, this can be this could be embarrassing or frustrating for some conservatees.
Types & Benefits of Conservatorship – CONSERVATORSHIP PROS AND CONS
Conservatorship of the Person
A court will order a conservatorship of the person for someone whose health is at risk because they can’t provide for their own food, shelter, and other basic needs. The benefits of this conservatorship are providing a way for you to assist a loved one whose health is at risk but who refuses help. Additionally, the conservator can obtain medical information and communicate with health care providers to make sure your loved one receives the best medical care. This is particularly helpful if your loved one is in a nursing home or assisted living home, or needs continuous monitoring of a serious health condition.
The conservator has the legal authority to make basic personal and health-care decisions for the protected person. The conservator must act responsibly and file regular reports with the court. If you consider a conservatorship but due to distance or other factors you cannot personally assume this responsibility, the court can appoint a professional conservator whose fees (which are usually high) must be paid from your loved one’s assets, unless a friend or relative wants to pay them.
Conservatorship of the Estate
A conservatorship of the estate is ordered to protect the finances of someone who can’t competently handle their own debts and income, or who can’t resist unfair financial pressure from others. It is also used to permit Medi-Cal eligibility planning to help preserve the assets of a person who has entered a nursing home and is too ill to understand and consent to a Medi-Cal planning power of attorney.
A conservatorship of the estate can provide a way for you, as a family member or close friend, to help a loved one who is rapidly losing assets or piling up bills because they are unable to manage their money, or because they are being taken advantage of financially. The conservator has legal authority to make good financial decisions for the protected person and to sign checks and other financial documents. The conservator must act responsibly and file regular reports with the court. The benefits of a conservatorship of the estate must be weighed against the cost, which can become expensive due to court hearings, filing of regular reports, and other related tasks.
Conservatorship of the Person and Estate
A conservatorship of the person and estate may be ordered by a court to protect both the health and finances of an adult who cannot care for himself or herself. There can be a separate conservator of the person and a financial conservator, or a single responsible person can be the conservator of both.
Limited Conservatorship for Developmentally Disabled Adult
A limited conservatorship authorizes the conservator to be responsible for part of a developmentally disabled adult’s life and finances, as specified by the court. The disabled person will retain all of their other rights, and the conservator is legally required to get treatment, services, and opportunities to help the disabled person become as independent as possible.
Lanterman Petris Short (LPS) Conservatorship for Serious Mental Disorders
An “LPS conservatorship” is ordered by the court under the California Welfare and Institutions Code (instead of under the Probate Code, as are the other examples above). An LPS conservatorship is for a person who is seriously disabled by a mental disorder or chronic alcoholism, and who may need to be placed in a locked facility. These conservatorships have very different rules, which are not covered on this website.
Duties of a Conservator
CONSERVATORSHIP PROS AND CONS – If a conservator of the estate is appointed, the conservator must:
- Obtain a bond as a guarantee that he or she will faithfully perform the required duties.
- Manage the estate’s assets with the care of a prudent person dealing with someone else’s property, keeping estate assets in interest–bearing accounts and ensuring that the assets are separate from anyone else’s assets.
- File an inventory of the conservatee’s property.
- Determine that there is appropriate and adequate insurance covering the assets and risks of the estate.
- Keep complete and accurate records of each financial transaction affecting the estate.
If a conservator of the person is appointed, the conservator must:
- Obtain a bond as a guarantee that he or she will faithfully perform the required duties.
- Assess the conservatee’s needs.
- Decide where the conservatee is to live, choosing the “least restrictive,” appropriate living situation that is safe and comfortable and allows the conservatee as much independence as possible.
- Ensure that the conservatee’s health needs are met, if medical authority has been granted.
- Work with the Conservator of the Estate, if there is one.
Costs of Conservatorship
The initial expenses of the petition and hearing must be paid by the proposed conservator, who may request that the court approve reimbursement from the conservatee’s estate. Once a conservatorship is granted, the ongoing expenses must be paid from the conservatee’s assets unless a family member or other person is willing and able to pay them.
Conservatorship expenses include:
- Initial legal fees related to gathering evidence, preparing the petition, attending the hearing, and handling any related disputes.
- Ongoing legal fees to prepare and file regular accountings with the court and seek court approval of any major financial transaction.
- Court filing fees, investigator fees, appraisal fees, and other related expenses. Conservator’s fees, typically $50 to $100 per hour, to properly handle or delegate all of their personal care and/or financial duties to the protected person.
- All conservator’s fees must be submitted to and approved by the Court before they can be paid.
- In some situations, a conservatorship is necessary either because the legal alternatives are unavailable or the vulnerable person needs more protection. But in many situations, less expensive legal alternatives to a conservatorship are adequate and available.
Changing Conservator; Ending the Conservatorship
The court will appoint a new conservator if the existing conservator wants to quit. The court will end the conservatorship if the conservatee dies or regains his or her abilities, or if there are no funds left to pay for the conservatorship’s expenses. Unfortunately, in most California counties there is no government agency that will take over or pay for a conservatorship of a person who has used up their assets. However, there are state and federal agencies with programs providing in-home services and medical care, or nursing home care, to adults with very limited income and assets. Such programs may provide a reasonable alternative where no funds remain for a conservatorship but the impaired person still needs extensive assistance.
Less restrictive alternatives are available
The good news is that there are some less restrictive alternatives to consider. Overall, it is important to weigh the need for a conservatorship. Is a conservatorship the least restrictive means to assist the person with limited capacities? Or are there more appropriate alternatives? Some common alternatives include advance health care directives, durable powers of attorney for finances and/or healthcare, and revocable living trusts. Which option is best for you and your loved one depends on whether the ability to comprehend and communicate is still intact. There are different alternatives for those adults who are no longer able to understand or communicate.
Options for adults who are still competent
If your loved one is still able to comprehend and communicate, there are several alternatives to conservatorship that may be available. When it comes to financial matters, you can set up a joint bank account to allow access to those funds. You can also execute a general or limited power of attorney over finances only. One disadvantage of a power of attorney is that it is no longer valid once the person becomes incapacitated or in some way loses the ability to make his or her own decisions. The answer is a durable power of attorney, which remains in effect even after the person becomes incapacitated.
What if the conservatee has already executed a Durable Power of Attorney for finances (DPA) or for healthcare (Advance Health Care Directive-AHCD)?
CONSERVATORSHIP PROS AND CONS – Having an agent under a DPA or an AHCD may make it less likely that you will need a conservatorship, but it does not mean you cannot be conserved. Your agent may renounce his or her power to manage your affairs. Or, if your agent does not renounce this power, a judge reviewing a petition for conservatorship may order that all prior DPAs be set aside. If prior DPAs are not revoked or renounced, however, the conservatorship does not automatically annul them. Thus, it is possible that both the conservator and the agent under a DPA might end up with power over a conservatee’s assets. If a conservatee previously appointed an agent to manage his or her health care decisions under an Advance Health Care Directive, the agent will usually retain that power.
An important difference to remember between a DPA/AHCD and a conservatorship is that with a DPA or AHCD, the principal gives the agent the power to do certain things. With a conservatorship, not only is the conservator given the power to act on the conservatee’s behalf, but the conservatee loses the right to do some things for him/herself, such as enter in a contract.
Advance Health Care Directive
CONSERVATORSHIP PROS AND CONS – An Advance Health Care Directive specifies the type of medical treatment or lifesaving measures the conservatee is willing to receive if they become seriously ill. However, in order to create this document, the adult must still be competent to execute it. In situations where the adult is unable to execute an Advance Health Care Directive, California law allows the health care professionals, such as in the nursing home, to make medical decisions on behalf of those adults. In certain circumstances, the court must make medical decisions, or appoint someone specifically for that task. This commonly occurs when a hospital needs to make changes to the current medical treatment for someone who is now unable to give consent and there is no conservator appointed.
