Conservatorships (Probate)
(Conservatorships are only for adults over 18.)
WHAT IS A PROBATE CONSERVATORSHIP?
A probate conservatorship is a court proceeding where a judge appoints a responsible person (called a conservator) to care for another adult who cannot care for him/herself or his/her finances (called a conservatee). The person the Court appoints as conservator must be very responsible.
There are two kinds of conservators:
- A conservator of the person cares for and protects a person when the judge decides that the person (called the “conservatee”) cannot do it.
- A conservator of the estate handles the conservatee’s financial matters – like paying bills and collecting a person’s income – if the judge decides the conservatee cannot do it.
IF I BECOME CONSERVATOR OF THE PERSON, WILL I AUTOMATICALLY BECOME CONSERVATOR OF THE ESTATE?
No. If you want to become conservator of the estate, you must petition for that. You can do it at the same time as you file your petition for conservatorship of the person or you can file a separate petition later.
IS A PROBATE CONSERVATORSHIP DIFFERENT FROM A MENTAL HEALTH (LPS) CONSERVATORSHIP?
Yes. An LPS conservatorship is only for people who are seriously mentally ill and need special care (usually placement in a locked facility and/or very powerful drugs to control behavior).
But, if a person suffers from dementia and needs special drugs to control the dementia, they may need a probate conservatorship, not an LPS conservatorship.
PROBATE CONSERVATORSHIP ARE THEY DIFFERENT FROM A LIMITED CONSERVATORSHIP?
Yes. A limited conservatorship is a type of probate conservatorship for people who are developmentally disabled.
Developmentally disabled people can usually do many things a conservatee cannot do. So, the Court limits their conservators’ powers.
WHO CAN FILE FOR CONSERVATORSHIP?
The person who wants to be a conservator can file. Others can file too, like a spouse, a relative, a state or local government agency, or any other interested person or friend. Even the person who will be the conservatee can file, but that is extremely unusual.
Before you file, find out if someone else is already planning to file a petition.
CAN ANYONE BE APPOINTED AS CONSERVATOR?
The law has a system for choosing the conservator. It gives preference to the person at the top of the list, then moves down:
- Spouse
- Adult child
- Parent
- Sibling
- Any other person the law says is okay
- Public Guardian
If the person closest to the top of the list does not want to be conservator, s/he can nominate someone else.
WHAT IF NO ONE IS QUALIFIED TO BE CONSERVATOR?
You may ask if you can appoint a private professional fiduciary as conservator. Private professional fiduciaries charge fees. There may be fees charged, but they are based on a person’s ability to pay. They have experienced personal conservators and property administrators who can serve as conservator.
WHEN SHOULD THE PUBLIC GUARDIAN BE CONSERVATOR?
The Court can sometimes appoint the Public Guardian as conservator. This usually happens when someone makes a referral. Referrals can be made by:
- Adult Protective Services (APS),
- A relative,
- A neighbor,
- A doctor,
- A police officer,
- The Court, or
- Another interested person.
If you think there is financial abuse, the State takes financial abuse cases seriously and may file criminal charges or a civil suit. (See Elder Abuse.)
CAN I MAKE MEDICAL DECISIONS FOR THE CONSERVATEE?
It depends.
If you are a conservator of the estate only, no.
But, if you are a conservator of the person, you can supervise the conservatee’s routine medical care unless s/he does not want you to.
If there is a medical emergency, you can supervise the conservatee’s care even if s/he objects. If the conservatee does not want medical treatment s/he needs, you can ask the Court for the power to give informed consent for the conservatee. This lets you authorize treatment even if the conservatee refuses.
If the conservatee is clearly unable to give informed consent, because of a stroke, dementia or some other problem that makes communication with the doctor impossible, the doctor will probably fill out a declaration for you to submit to Court. If the Court approves your request, you will be able to make most medical decisions without the Court’s permission.
But, if the conservatee has dementia and needs to be in a secure long-term care or residential care facility, or needs special drugs to treat the dementia, you must ask the Court for permission to have the conservatee confined, or to administer these drugs.
To ask the Court for these special medical powers, a physician or licensed psychologist must fill out the Capacity Declaration—Conservatorship form GC-335, which you must then file with the Court. This is a state Judicial Council form.
If the conservatee’s needs change, you can always file a new petition to ask for the powers you need.
FOR ESTATE PLANNING DECISIONS CAN I MAKE THEM FOR THE CONSERVATEE?
If you are the conservator of the estate, you control the conservatee’s finances. But, the conservatee still has the power to make a Will.
The Court will let you make a Will if:
- the conservatee is too sick to make a Will or estate plans, or
- the conservatorship was established because someone was taking advantage of the conservatee or exerting undue influence on him/her.
Section 2580 of the Probate Code says the Court can have the conservator use “Substituted Judgment” to make a Will, a trust, or both, to make sure the conservatee has an estate plan. The Court may also let you use this power to change or revoke a trust, make gifts, change insurance policies or annuities, and sign contracts for the conservatee.
You or any other interested person, like a family member, can present a petition asking for Substituted Judgment.
You must send a copy of your petition and the notice of hearing to the same people you gave notice to for the conservatorship hearing. Additionally, you must also give notice of the hearing to all beneficiaries in the conservatee’s current estate plan, and anyone who would inherit from the conservatee under the laws of intestate succession.
Read Probate Code Sections 2582 and 2583 to learn how to fill out the petition. Remember, it is important to show that if the conservatee could act for him/ herself and could act as a reasonable person, s/he would want to do what the petition is asking for. If your petition asks for big changes, you must explain to the Court why these changes are needed. You must also file the existing trust and/or Will and a draft trust and/or Will.
We recommend you have a lawyer or LDA (Legal Document Assistant) prepare these documents.
You cannot petition the Court for Substituted Judgment at the same time as your conservatorship hearing. But, if the proposed conservatee may be dying, and you need to take action quickly, you can ask the Court to consider your petition even before it appoints a permanent conservator.
WHAT DOES THE COURT INVESTIGATOR DO IN CONSERVATORSHIP CASES?
The court investigator gives neutral information about your case to the judge. The investigator will call you and set up a visit with you and the proposed conservatee. Sometimes, s/he will meet with you and the proposed conservatee more than once.
The Court wants the investigator to:
- Have a private interview with the proposed conservatee.
- Explain how the conservatorship will change his/her life.
- Explain what will happen at the hearing.
- Explain about the proposed conservatee’s right to fight the conservatorship, to have a lawyer, to have a different conservator and to have a trial by jury if s/he wants it.
- If the proposed conservatee does not have the ability to understand or to give an opinion, the investigator will decide if a lawyer should be appointed to represent him/her
- Review the petitioner’s Confidential Supplemental Information form and get more information if needed
- Find out if the proposed conservatee is willing and able to come to the hearing. The investigator is allowed to look at the proposed conservatee’s confidential medical records.
- See if the proposed conservatee is able to fill out an affidavit of voter registration.
- Write a confidential report for the Court and send a copy to the conservator and the conservator’s lawyer.
- Make recommendations to the judge about your case.
For more information on the investigator’s duties, see Probate Code 1826.
DOES THE COURT INVESTIGATOR STAY IN TOUCH WITH THE CONSERVATEE?
Yes. In a year, the investigator will review your case again to make sure you are fulfilling your responsibilities as conservator and that the conservatee’s rights are being upheld. After the first year visit, the investigator will visit the conservatee every 2 years, or as often as the investigator feels necessary.
If the investigator thinks there may be a problem, s/he will write a report and ask the judge to appoint a lawyer for the conservatee. This starts the legal process to remove you as conservator.
The investigator will also visit the conservatee and make a report if:
- The temporary conservator wants to move the proposed conservatee out of his/her residence.
- The conservator petitions for exclusive authority to make medical decisions for the conservatee, especially if s/he is asking for special powers to take care of the needs of a demented conservatee.
- The conservator wants to sell the conservatee’s home (or former home).
The court investigator will explain the implications of these situations to the conservatee. S/he will then write a report to the Court with his/her recommendations.
WHEN CAN I ESTABLISH A PROBATE CONSERVATORSHIP?
You must be sure that establishing a conservatorship is the only way to meet the person’s needs. If there is another way, the Court will not grant your petition.
You may not need a conservatorship if the person who needs help:
- Can cooperate with a plan to meet his/her basic needs.
- Has the capacity and willingness to sign a power of attorney naming someone to help with his/her finances or healthcare decisions. Has only social security or welfare income every month and the Social Security Administration can appoint you Representative Payee. The Representative Payee is the person the beneficiary allows to receive Social Security checks in their name on behalf of the beneficiary.
- Is married and the spouse can handle financial transactions. The property must be community property or in joint accounts.
HOW DO I ESTABLISH A CONSERVATORSHIP?
| Step 1 | Fill out your forms. You can download the forms by clicking on the form number below. The state forms are also on the Court Website and the Judicial Council website: www.courts.ca.gov/ . Tip: Choose “Probate-Guardianships and Conservatorships” from the drop-down menu. Fill out the state forms listed below: · GC-310 Petition for Appointment of Probate Conservator · GC-020 Notice of Hearing · GC-312 Confidential Supplemental Information · GC-320 Citation for Conservatorship · GC-348 Duties of Conservator · GC-314 Confidential Conservator Screening · GC-340 Order Appointing Conservator · GC-350 Letters of Conservatorship · GC-335 Capacity Declaration If there is an urgent need to establish a conservatorship, fill out these temporary conservatorship forms: · GC-111 Petition for Appointment of Temporary Conservator · GC-141 Order Appointing Temporary Conservator · GC-150 Letters of Temporary Conservatorship There are special rules for temporary conservators. See Probate Code Section 2253. |
Step 2 | Gather the information you will need to fill out your forms (refer to the forms). |
Step 3 | File your forms Make 2 copies of all your forms, including the Proof of Service, and file them in the Probate Clerk’s Office.
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Step 4 | Serve your forms You must “give notice to certain people including: · grandparents, · parents, · brothers and sisters, · children, · grandchildren, and · spouse. This means someone over 18 – not you – must serve (give) copies of the court forms to those people at least 15 days before the hearing. That way, they will know you are asking to be the conservator. You must do this even if you think those people don’t care or may disagree with you. Someone over 18—not you—must also “give notice by citation” to the proposed conservatee. You can have a friend or family member do this, or you can hire a professional process server. The server must serve copies of these forms: · Notice of Hearing · Petition for Appointment of Conservator There are rules for giving notice. You must follow them carefully. The person who serves the forms by mail must fill out and sign page 2 of GC-020, then give it back to you. This is your Proof of Service. Make copies of both pages of this form and file it with the clerk with your other papers. |
Step 5 | Get a hearing date and a case number The clerk can give you a date for the conservatorship hearing about 10 weeks after you file your forms. (It takes the Court Investigation Unit at least 10 weeks to investigate your case.) The clerk will give you a case number at the same time. If your situation is urgent, fill out the forms to apply for a temporary conservatorship. (See Step 1). |
Step 6 | Complete additional forms If you haven’t done so already, submit form GC-340, your proposed Order Appointing Conservator and fill out form GC-350, Letters of Conservatorship. |
Step 7 | Go to the hearing The time and date of your hearing are listed on GC-020, #4. Allow plenty of time to go through the security screening and locate the courtroom. |
Step 8 | After the hearing if approved, your Order and Letters will be returned by mail. |
HOW CAN I LEARN MORE ABOUT CONSERVATORSHIPS?
Look for books in the legal section of a bookstore. Or, ask a librarian for help. The rules for conservatorships are complicated. And, they are different for each county. Talk to a lawyer before you try to establish a conservatorship.
