Pages Menu

Posted by on Mar 16, 2015 in David Schwartz |

Conservatorships – What they are and how to avoid them

Conservatorships – What they are and how to avoid them

No one really knows if they will ever be in a position to need someone else to handle their medical and financial choices.  We tend to deny that it could happen to us.  Here is an overview of what a conservatorship is and what you can do now to avoid it.

A conservatorship can be a months-long legal process, with well over $1000 in court fees for filing, investigating, and court-appointed representation of the person who is the subject of the conservatorship.  Most of this can be avoided with two simple planning documents that can be prepared in a matter of minutes.

What is a conservator?

Someone appointed by a judge to oversee the affairs of an incapacitated person. A conservator who manages financial affairs is often called a “conservator of the estate.” One who takes care of personal matters, such as health care and living arrangements, is known as a “conservator of the person.” Sometimes, one conservator is appointed to handle all these tasks.

What is a conservatee?

Conversely, the incapacitated person whose affairs are being managed is called the “conservatee”.

In California, there are different kinds of conservatorship that are available based on the root cause of a person’s incapacity (for adults who are incapacitated as a result of a developmental disability, there is a “limited conservatorship”; for adults who are incapacitated by and diagnosed with mental illnesses such as schizophrenia, there is an “LPS conservatorship” for the treatment of the mentally ill).

The most common kind of conservatorship, though, and the most relevant for this article, is the standard conservatorship, which is for persons who are incapacitated as a result of dementia, Alzheimer’s, or other medical issue that results in a significant diminishing or complete loss of cognitive function.

Conservator of the Person:  Depending on the needs of the conservatee, a conservator in a conservatorship can ask the judge for authority to place the conservatee in a locked facility (for conservatees who have a propensity to wander and become lost), for authority to administer psychotropic medications appropriate to the care of dementia (usually for conservatees who would benefit from such medication but who refuse to or cannot take their medications as directed by physicians)

Conservator of the Estate: This power allows the conservator to manage the financial affairs of the conservatee.

Why should I want to avoid a conservatorship?

Establishing a conservatorship can be a lengthy and time consuming process.  The names and addresses of all of the proposed conservatee’s second-degree relatives (the conservatee’s grandparents, parents, siblings, spouse, children and grandchildren) must all be listed on the petition and all of these second-degree relatives who are adults need to be given formal legal notice of the hearing.

A capacity declaration – a court form designed to solicit information about the proposed conservatee’s degree of mental incapacity, if any – must be filled out by a medical doctor or psychiatrist who has treated the proposed conservatee within the previous six months.  If the conservatorship is to include a conservatorship of the estate, a full “inventory and appraisal” – a list of the proposed conservatee’s property and assets including what each is worth – must be prepared.

Once the petition is ready to file, the court will charge a filing fee (several hundred dollars), and may include additional smaller fees which vary from county to county.  The court will appoint an attorney to represent the proposed conservatee, as well as a court investigator to look into the situation as a whole.  Both the attorney and the investigator usually charge for their services during the process. Even once the conservatorship is in place, the conservator must return to court for review hearings, which are set at the court’s discretion, but must happen at least once every two years.  Every review hearing has a court investigation and usually an appearance by the court-appointed attorney, so there are, you guessed it, more fees for the time they spend.

The opinion of the court-appointed attorney and the report filed by the court investigator, combined with the capacity declaration made by one of the proposed conservatee’s physicians, forms the court’s opinion and determines whether a conservator will be appointed.

What can I do to avoid conservatorship?

In some cases, no amount of planning ahead could prevent the need for a formal conservatorship.  In most cases, though, creating planning documents when you are healthy will save you and your loved ones from the hassle and expense of the conservatorship process.  A springing durable power of attorney lets you give some other person of your choosing authority to manage your finances for your benefit and your benefit only.  The “durable” part means that the power of attorney will continue to be valid even if you become incapacitated, and the “springing” part means that the person you choose will only have the authority to manage your finances in the event that you become incapacitated.

An advance healthcare directive – sometimes called a medical power of attorney – lets you give some other person or persons of your choosing authority to manage your medical care.  Just like a power of attorney, it can be made “springing”, and advance healthcare directives are all “durable” by default.  An additional bonus to the advance healthcare directive is that you can put in writing how you want aspects of your medical care handled, such as organ donation decisions and end-of-life care and treatment.

You may recognize these authorities as mirroring the powers of a conservator however, the costs in time and money definitely do not mirror those involved in a conservatorship case.  Power of attorney and advance healthcare documents can be completed in mere minutes, and once they are completed, they remain in effect for as long as you want them to.  They documents are not written in stone, and can be changed or simply cancelled at your discretion.

Elder Law & Advocacy, a non-profit law firm, provides free legal services to seniors in San Diego and Imperial counties and can provide limited to power of attorney and advance healthcare directive documents for you.  It really is that simple, and it’s hard to come up with a reason not to put these planning documents in place for yourself.

Author: Staff Attorney David Schwartz