Wills, Estates & Trusts	Guardianship	Conservatorship

Conservatorship

What is a conservatorship?

A conservatorship can be set up after a judge decides that a person (called a "conservatee") cannot take care of him/herself or his/her finances. A judge will choose another person or organization (called the "conservator") to be in charge of the conservatee's care or finances, or both. A conservator can be a family member, friend, or professional.

What is a conservator of the person?

When the court appoints you as the conservator of a person, this means you:

1. arrange for the conservatee's care and protection;
2. decide where the conservatee will live; and
3. are in charge of:

a. health care, b. food, c. clothes, d. personal care,

e. housekeeping, f. transportation, and g. recreation

What is a conservator of the estate?

When the court appoints you to be the conservator of an estate, you will:

1. manage the conservatee's finances;
2. protect the conservatee's income and property;
3. make a list of everything in the estate;
4. make a plan to make sure the conservatee's needs are met;
5. make sure the conservatee's bills are paid;
6. invest the conservatee's money;
7. make sure the conservatee gets all the benefits he or she is eligible for;
8. make sure the conservatee's taxes are filed and paid on time;
9. keep exact financial records; and
10. make regular reports of the financial accounts to the court and other interested persons.

What is a limited conservatorship?

A limited conservatorship is set up for adults with developmental disabilities who cannot fully care for themselves, but who do not need the higher level of care or help given under a general conservatorship. In general, a limited conservator has less authority than a general conservator. A limited conservator has authority to do only those things that are granted at the time of appointment. The judge decides which responsibilities the conservatee will keep and which ones the conservator will have.

What is a temporary conservatorship?

A temporary conservatorship may be set up when a person needs immediate help. A judge, upon finding of good cause, may appoint a temporary conservator of the person or of the estate, or both, for a specific period until a permanent conservator can be appointed. A temporary conservator arranges for temporary care, protection, and support of the conservatee and protects the conservatee's property from loss or damage. A temporary conservator may also be appointed to fill in between permanent conservators, if, for example, the permanent conservator dies or the judge has ordered his or her removal. The authority of a temporary conservator is much more limited than a general conservator.

What are alternatives to a temporary conservatorship?

If the only purpose of the temporary conservatorship is to designate an individual to make medical decisions on behalf of an incapacitated person, a temporary conservatorship may not be needed. Certain individuals, such as an incapacitated person's spouse or the public guardian, can petition the court for authority to make medical decisions on behalf of an incapacitated individual. (Prob. Code §3200).

What are alternatives to a conservatorship?

• Voluntary acceptance of informal or formal assistance. Becoming a substitute payee may be a valid conservatorship alternative to aid in financial management of Veterans' Administration or Social Security benefits. Some public and private pension plans also allow for a designated payee. These arrangements can be made without the help of an attorney and avoid the expense of a court-supervised proceeding, but do not offer the protections such proceedings provide.
  
• Veterans' administration benefits. The VA may appoint a fiduciary to receive veterans' benefits and authorize the fiduciary to receive a commission for services rendered.
  
• Social Security administration benefits. The Social Security Administration will certify a third-party representative payee after an investigation into whether payment to that person or organization is in the interest of the Social Security benefit recipient.
  
• Advanced planning for incapacity. The court will consider whether the proposed conservatee planned for the possibility of incapacity and whether those plans are sufficient to meet the proposed conservatee's present need. The most common tools for planning for incapacity are advance health care directives, durable powers of attorney, and trusts. However, only a person who has legal capacity can create these.
  
  
  • Durable Powers of Attorney for Financial Management. A durable power of attorney for financial management (DPAF) authorizes an agent to manage the principal's assets and make financial or business decisions for the principal. (Prob. Code §4000-4545) Please note that a DPAF does not restrain a principal who acts imprudently or is subject to undue influence (e.g., gambling, making gifts to someone, preying on the principal). Further, the DPAF has a potential for abuse by the agent who has largely unsupervised powers over principal's assets.
    
  • Advance Health Care Directives. An advance health care directive (AHCD) may include individual health care instructions, a power of attorney for health care (PAHC), or both. This document is mainly intended to function when the principal is incapacitated. Also, unless the instrument provides otherwise, a PAHC takes effect only on a determination by the principal's primary physician that the principal lacks capacity. A PAHC may fail as an alternative if the proposed conservatee's problems are beyond the scope of authority, or the proposed conservatee opposes the agent's assistance.

What are the required forms?

The following forms are mandatory in San Diego Superior Court:

• Petition for Appointment of Probate Conservator (Form GC-310)
• Citation (if conservatee is not the petitioner) (Form GC-320)
• Confidential Supplemental Information (Form GC-312)
• Confidential Conservator Screening (Form GC-314)
• Referral Information and List of Relatives (Form PR-020)

Definition of Terms

Court Investigator Report (Local Form):
Report prepared by the Court Investigator that is submitted at least five days before the court hearing. The report is confidential and contains detailed information regarding the proposed conservatee's health and whether a conservatorship is needed. The court charges a fee, called an assessment for the report which is usually paid from the conservatee's estate. Fees vary by report.

If a conservatorship is granted, the court investigator must visit and prepare a report six months from appointment and every year thereafter.

Private Professional Conservator:
This is a person not related by blood or marriage or an entity appointed as conservator of two or more conservatees. These persons must be licensed by the State Board of Licensing, effective July 1, 2008. (Prob. Code §2340, et seq.)

Regional Center:
Regional Center is an agency that works with developmentally-disabled consumers and assists with promoting independence and self-sufficiency. Regional Center must be noticed when a petition for limited conservatorship is filed and a social worker from the agency prepares a confidential report for the court.

Order Appointing Probate Conservator (Prob. Code §1830) (Form GC-340)
Appoints the conservator.

Notice of Conservatee's Rights (Prob. Code §1820) (Form GC-341)
Notice sets forth rights of the conservatee. The conservator must mail the order and the attached information notice to the conservatee and the conservatee's relatives within 30 days of the issuance of the order.

Surety Bond (Prob. Code §2300, 2320)
Surety bonds protect the estate of the conservatee from losses in the event of mishandling by the conservator. If a bond is required, the court will determine the appropriate amount in the order appointing probate conservator. Bond must be filed prior to the issuance of letters. In cases where there are multiple conservators, there may be separate bonds for each.

Letters of Conservatorship (Prob. Code §1834) (Form GC-350)
Confirms the appointment of the conservator and gives the conservator the power to act.

Level of Care and Placement (Prob. Code §2352.5)
This is the declaration the conservator must file within 60 days of appointment that includes an evaluation of the level of care existing at the time of commencement of the proceeding and the measures that will be necessary to keep the conservatee in his or her own personal residence or limitations which require the conservatee to live somewhere other than his or her personal residence.

Inventory and Appraisal (Prob. Court §2610, Cal Rules Ct., Rule 7.501) (Form GC-040)
Gives the valuation of the conservatee's assets for a conservatorship of the estate and is due within 90 days of Letters being issued. The same form is used for all types of cases within the probate court's jurisdiction.

Petition for Accounting (Prob. Code §2620, et seq.)
Petition for settlement of an accounting advises the court of how the conservatee's monies have been spent during the accounting period. The petition is placed on the court calendar for approval. An accounting must be filed at the end of the first year of the appointment of the conservator and every other year thereafter unless directed otherwise by the court.

Time Line & Checklist for Conservatorship

Conservatorship Timeline

• More information on becoming a conservator is available at www.courts.ca.gov/selfhelp-seniors.htm
• Information regarding licensing requirements for private professional conservators is available at: www.fiduciary.ca.gov
• Legal Aid Society conducts a conservatorship clinic.
• Legal Aid Society and the court have prepared a self-help manual for limited conservatorship.

Conservatorship Orientation Program

Effective April 19, 2005:

All conservators, excluding limited conservators of the person and Private Professional Conservators as defined by Prob. Code §2341 must complete an education class as ordered at the time of their appointment as conservator. Classes must be completed within six months of appointment as a conservator, and a certificate evidencing completion must be filed with the court. Classes must be designed to explain the duties and responsibilities of Conservator of the Person and/or Estate and include information on healthcare, safety, living arrangements, management of assets, accountings and other legal obligations. A list of providers is available in the Probate Business Office. Failure to complete this requirement may be grounds for removal as ordered by the court. In addition to removal, failure to comply with these requirements may result in the imposition of sanctions.