A conservatorship is a court supervised proceeding that is used when an adult individual cannot care for himself or herself or where the individual is incapable of managing their own finances. During the court proceeding, a judge will appoint a "conservator," an individual or organization, who then acts on behalf of the incapacitated "conservatee."
One of the best ways to avoid the necessity of a conservatorship is to plan ahead. A Durable Power of Attorney can help you avoid a conservatorship by allowing you to name an agent to act on your behalf for your finances should you become incapacitated in the future.
An Advance Health Care Directive can help to avoid a conservatorship by naming an agent to act on your behalf for your personal health care decisions and have access to your personal health records.
Both the durable power of attorney and advance health care directive should be reviewed periodically. Our firm recommends that the Durable Power of Attorney be updated every five years. In our experience, certain financial institutions have refused to honor a validly executed durable power of attorney if the document is over five years old. If you already have a durable power of attorney, check to see when your document was executed or plan on executing a new document.
Our firm recommends that anyone over 18 years of age consider executing a durable power of attorney and an advance health care directive so that they protect himself or herself from the possibility of needing a conservatorship in the future.
If an individual can no longer manage their health decisions nor financial decisions, a conservatorship may be necessary to assist them in making these decisions. To start the conservatorship process, the petitioner must file the petition along with other paperwork. The process of petitioning for a conservatorship is very complex and it is recommended that an attorney assist.
A conservatorship of the person and/or estate requires:
- A capacity declaration completed by the proposed conservatee's physician showing that there is a necessity of the conservatorship.
- A qualified individual to serve as the conservator.
- A bond be posted with the court to insure the conservatee's assets.
- A court investigation, which will investigate the necessity of the conservatorship.
- An inventory and appraisal filed with the court after the commencement of the proceedings.
- An annual accounting, followed by biannual accountings to the court, which must be approved before the conservator or attorney for the conservator may be paid.
The California Probate Code section 1801 creates a special type of conservatorship for individuals with developmental disabilities called a "Limited Conservatorship." Usually the limited conservatees are registered with, and receive assistance from the Regional Center.
Usually, parents of these special needs individuals petition the court around the conservatee's 18th birthday, but not always. The powers that a limited conservator can request are limited to those listed in Probate Code section 2351.5.