Our law firm is committed to assisting families of elderly or disabled individuals as they navigate the complex conservatorship process, whether seeking to direct the affairs of a loved one or looking to oppose a conservatorship proceeding. We handle conservatorships, contested and uncontested, in all the Riverside County and San Bernardino County courts.
What Is a Conservatorship?
In some states, the court process to appoint someone to look after the personal or financial affairs of a disabled or elderly individual is known as a guardianship. In California, guardianships are only used for minors. For adults, a conservatorship of the person allows the conservator (the person appointed by the court to manage personal affairs) to assist the conservatee (a disabled or adult person). A conservatorship of the estate allows the conservator to manage the income and assets of the conservatee and pay his or her bills. The conservator of the person and estate can be the same person or they can be different persons. Conservatorships in California generally occur for one of two reasons:
- A disabled child turns eighteen but is incapable of managing his or her affairs. For some persons with developmental disabilities and physical disabilities, a limited conservatorship may be appropriate. For others, a general conservatorship is more appropriate. Call our office at 951-888-1460 if you want to schedule an appointment to discuss a conservatorship for your adult disabled child.
- An elderly person needs assistance with the management of his or her personal and/or financial affairs. Sometimes where the elderly person has been diagnosed with dementia or Alzheimer’s Disease, special dementia powers dealing with the administration of medications or placement in a memory care assisted living facility may be appropriate.
Special Needs Trusts
A superior estate planning strategy that is frequently used in conjunction with a conservatorship of the estate of a disabled person is the creation of a Special Needs Trust. A Special Needs Trust can be created with the disabled person’s assets. This is known as a first party trust.
A third party trust is a Special Needs Trust created by the disabled person’s parents, grandparents, or other persons who wish to benefit him or her. The gift or inheritance left by that person is held in a protected trust.
Distributions from either a first party or third party Special Needs Trust can be made when necessities are not provided through government assistance. With a Special Needs Trust, the beneficiary has the best of all worlds. The special needs person maintains his or her eligibility for government assistance programs while also benefitting from a pool of funds available to provide for necessities and niceties not available through any of those government assistance programs.
The Conservatorship Process
Becoming a conservator of the person, or of the estate, or both is complicated. First, a petition to establish the conservatorship must be filed in the Probate Court of the county in which the conservatee lives. All relatives of the conservatee must be notified of the conservatorship proceedings in case they wish to object. The person petitioning for the conservatorship must provide the court with a court document examining the mental capacity of the proposed conservatee that has been completed by the conservatee’s doctor.
After the conservatorship petition is filed, the court will send investigators to determine the conservatee’s welfare. The investigators will also contact as many relatives, friends, and other interested persons as possible so as to provide the judge with an objective report of the conservatee’s situation. If it is alleged that the proposed conservatee has dementia or Alzheimer’s disease, the court will also appoint an attorney to represent the interests of the person.
If no one contests the conservatorship and the investigator’s and attorney’s reports indicate a conservatorship is appropriate, the judge is likely to approve the conservatorship petition. Because a conservator of the estate has control of the finances and assets of another person, he or she must either be bonded or the assets will need to be placed in blocked accounts that cannot be accessed without a court order.
If someone, including the proposed conservatee, objects to the conservatorship, then further investigation and potentially a trial will be needed for the judge to determine whether a conservatorship is necessary. In such circumstances, it is not unusual for more than one person to be petitioning to be the conservator. In that case, the judge must determine whether a conservatorship is appropriate, and if so, which person petitioning to become conservator should be appointed. Where multiple persons are petitioning to become the conservator, certain individuals are given preference under the law. A person nominated by the conservatee has the highest priority, assuming that the conservatee had the legal capacity necessary to nominate the proposed conservator at the time of the nomination. After that, the proposed conservatee’s spouse has the next highest priority. The next in line of preference under the law are the conservatee’s closest relatives, starting with children, if the conservatee has any.
Is There Anything That Can Be Done to Avoid a Conservatorship?
Persons with capacity can avoid a conservatorship if they clearly dictate their wishes through a comprehensive estate plan, including a revocable living trust, a power of attorney for finance, advance health care directives, and HIPAA pre-authorization forms. A comprehensive estate plan is a less restrictive alternative to a conservatorship and if it is being properly administered by the trustee and agents, the court should find there is no need for a conservatorship. If you do not have an estate plan and are seeking to avoid a conservatorship, we can help.
What Is the Process to Become a Conservator?
A person desiring to be appointed a conservator must follow the process described above. The proposed conservator also must have a clean criminal record and not have filed for bankruptcy for at least 10 years prior to petitioning to become conservator. In addition, the proposed conservator must be bondable.
Can a Conservatorship Be Contested?
Not all petitions to appoint a conservatorship are appropriate. Maybe the individual does not need assistance and is still capable of handling his or her personal and financial affairs. Or maybe the person applying to be appointed conservator does not have the elderly or disabled person’s best interest in mind. Our attorneys are experienced in handling contested conservatorships before the courts in Riverside and San Bernardino Counties.
Our Riverside Conservatorship Attorneys Can Help
Deciding to pursue or contest a conservatorship is a serious decision that is best made after consulting an experienced conservatorship attorney. We understand how much is on the line for you and your family when seeking or contesting a conservatorship, which is why we thoroughly prepare these cases for court. In instances of contested conservatorship, you can be assured that we will be very involved, advocating for the best interests of the proposed conservatee. Call our Riverside office at 951-888-1460 or contact us online to schedule an appointment with one of our attorneys.