California Conservatorships

CONSERVATORSHIPS IN CALIFORNIA
By: Mina N. Sirkin, Esq.

A Conservatorship is a judicially created relationship whereby an adult has been given the authorization and responsibility to care for another adult. General Conservatorships can be three basic types: 1) Conservatorship of the person; 2) Conservatorship of the Estate; and 3) Conservatorship of person and estate.

Conservatorship proceedings usually start when a person is so incapacitated that he or she cannot manger his/her own affairs. The person who is the caretaker is called the conservator, and the person who is being taken care of is called the conservatee.

While a valid power of attorney document can authorize the power of attorney holder to accomplish certain of a conservator's tasks, a cannot prevent the ill person from contracting, conveying property or marrying. For example, a patient with Alzheimer's disease may become subject to fraud from unscrupulous persons. While he or she could have given a valid power of attorney while he or she was well, he or she may be befriended, may marry, and convey his or her property to a new spouse. In that situation, the probate code provides that a conservatorship may be established, and the conservator may ask the court to set aside any contract entered into by the ill conservatee. The advantage of the conservatorship is that it can safeguard against fraud against the ill person.

The conservatorship proceeding begins with a petition filed with the court, followed by an investigation by a court investigator and a court hearing. Many factors can affect a conservatorship. For example, if the conservatee objects to the conservator's appointment, he or she may object and the court will assign counsel for the conservatee for that purpose.

A conservator of the estate is required to provide accountings that give details of the conservatee' assets, and how the conservatee's money was spend. Additionally, the court will require that the conservator of the estate to post a bond. The conservator is paid by the conservatee's estate and the court supervises the reasonableness of the payments to the conservator.

If there are several person who have filed petitions to become the conservator for the conservatee, the court will decide who shall become the conservator. Preference rules exist for making such a determination.

A conservatorship must continue until the court orders the conservator relieved from his or her duties. This can happen if the conservatee dies; if the estate is used up; if the conservatee regains his or her capacity; and if the conservator becomes unable or unwilling to act. In the last situation, the court will assign a successor conservator.

Conservatorships are time consuming, expensive, and should only be used when absolutely necessary. Candidates for conservatorship can be, although not limited to, those who suffer from Alzheimer's disease, stroke, head injuries, Parkinson's and other debilitating disorders. A conservator can petition the court for approval of appropriate Medi-Cal planning transactions such as purchasing a home in order to "spend down" the conservatee's property on exempt assets.

Mina N. Sirkin, Esq., is a partner in the Woodland Hills, California, firm of Sirkin and Sirkin.