Power of Attorney & Conservatorship

Conservatorship is the legal proceedings where the judge decides that the person (conservatee) is unable to care for themselves or their finances and appoints another person or organization (conservator) to be in charge of conservatee’s care, finances or both.

In other states it could be also called guardianship, but in California guardianship proceeding is used for minors, and conservatorship – for adults.

There are a few kinds of conservatorship: conservatorhip for the person, for the estate or both. There can also be temporary conservatorship, limited conservatorship for developmentally disabled person, LPS conservatorship.

Usually if you want to be taking care of a person or their finances, you will need to petition a court to establish the conservatorship. However, there are situations when it would not be necessary to go through the court. For example if the person has executed the power of attorney for health care and the power of attorney for assets assigning you as their attorney-in-fact that would most likely be sufficient for you to act on their behalf, provided that the person does not object.

Similarly, if conservatee still has capacity and executes such power of attorney it could avoid the conservatorship proceedings.

Sometimes a spouse will be able to manage the estate when the property is titled as joint tenants or as community property without establishing the conservatorship.

Also, if there are no assets and the only income a person receives is the social security or welfare, a representative payee for social security benefits could be assigned to collect the benefits.

The preference is given to a spouse, adult kids, parents, grandparent, sibling, relative, etc. However, if there are no close people available, then even a friend can file.

If there is no suitable conservator, the professional conservator can be appointed.

If there is no money in the estate to pay the fees of conservator for their work, a public guardian could be assigned.

Before you file for the conservatorship it is always good to find out if anyone else might be filing.

Conservator’s petition is filed in superior court in a county where the proposed conservatee lives.

It takes about 10 weeks from the submission of petition to get a hearing date. If no one contests the conservatorship and the court investigator agrees with the proposed conservator, the conservator will be appointed at the hearing and letters of conservatorship will be issued soon after.

However, if you were filing for the conservator of the estate the bond may be required and there are further duties that will have to be fulfilled. Soon after the appointment, conservator of the estate will have to submit an inventory and appraisal of all conservatee’s assets to the court. In a year after becoming a conservator, an annual accounting will have to be filed with the court. The accounting will have to be done annually after that.

The filing fee for the conservatorhip is $395. Other mandatory court fees include investigator’s fees, PVP attorney’s fees, if such is assigned. Subject to court’s approval, the conservator can be reimbursed from the estate, and so is the conservator’s attorney

After physician or licensed psychologist fills out a Capacity Declaration of the conservatee, the petition with all required other forms will be submitted to court.

A hearing date will be set that you will have to attend. Certain people will have to get a notice; like grandparents, parents, brothers and sisters, children, grandchildren, and spouse even if they are not interested in becoming conservators. There will be an investigator and in most cases PVP attorney assigned to investigate conservatee’s needs and determine conservatee’s best interest.

If the conservatorhip for the estate has been petitioned for, the bond may have to be filed to secure the property of the estate.

If no other party or investigator objects to the appointment of conservator the judge will approve the petition and Letters of Conservatorship will be issued.

An inventory and appraisal and eventually an accounting will have to be filed in cases of estate conservatorship. Later, the accounting will have to be filed to court annually.

Also, many times a separate petition for court’s approval will have to be submitted if any major transactions need to be accomplished, e.g. home transfer, sale, or to approve/change existing estate plan for conservatee.

The conservator for the person shall report to the court on conservatees personal matters and prepare a personal care plan.

Our experienced law offices are well versed in the conservatorship proceedings, let us handle your matters in the best possible manner, call us 1-866-822-7211.

A conservatee does not lose all rights. They have the right to be treated with understanding and respect; have their wishes considered; and be well cared for by you. They can still have a say in important decisions: control their own salary; make or change their will; get married; get mail; have a lawyer; ask a judge to change conservators; ask a judge to end the conservatorship; vote, unless a judge says they’re not able to; control personal spending money if a judge says they can have an allowance and make their own health-care decisions, unless a judge gives that right to a conservator.

When the court chooses you as the conservator of a person, this means you have to arrange for the conservatee’s care and protection, decide where the conservatee will live. You will be in charge of conservate’s health care, food, clothes, personal care, housekeeping, transportation, and recreation.

You can decide where the conservatee will live. But you must choose the least restrictive place. It has to be appropriate, safe, and comfortable for the conservatee. And it has to let the conservatee be as independent as possible.

You must tell the court every time the conservatee’s address changes.

You can’t move the conservatee out of state.

You can’t put the conservatee in a mental health treatment facility. You may be able to put the conservatee in a special residential care facility with a secure fence around the property if the conservatee has dementia and the court agrees with you. But you have to make sure the facility is appropriate, meets the conservatee’s special needs, and is not more restrictive than necessary.

You are responsible for making sure that the conservatee’s health-care needs are taken care of.

You can’t give or deny consent for medical treatment if the conservatee doesn’t agree, unless the court gives you that exclusive right.

If the court gives you the power to approve the use of certain very strong medications to treat dementia, make sure the doctors try other, less intrusive treatments first. If someone else is handling the conservatee’s finances, that person is the conservator of the estate. You must work together to make sure the conservatee can pay for the care you arrange. The conservator of the estate must approve what you buy for the conservatee, or you may not get reimbursed.

The money and property the conservatee owns are called the conservatee’s “estate.” When the court chooses you to be the conservator of an estate, you will: manage the conservatee’s finances; protect the conservatee’s income and property; make a list of everything in the estate; make a plan to make sure the conservatee’s needs are met; make sure the conservatee’s bills are paid; invest the conservatee’s money; make sure the conservatee gets all the benefits he or she is eligible for; make sure the conservatee’s taxes are filed and paid on time; keep exact financial records; and make regular reports of the financial accounts to the court and other interested persons.

In order to manage the assets of the estate properly you must make smart investments, keep the estate and personal assets separate. There are a lot of other limits on how you can handle the estate’s property. Unless you have a court order, you can’t pay yourself or your lawyer with the estate’s money, give away any part of the estate or borrow money from the estate.

If you don’t get permission from the court when you have to, you may have to pay back the estate from your own money. And you may be removed as conservator. Please call our law offices to find out more what the law is about sales, leases, mortgages, and investments.

If you’re chosen to be conservator of an estate, you must make and keep a list of what the estate owns. To do this, you need to locate all the property that the conservatee owns. Put the personal property into your name as conservator of the estate. For real estate, file a copy of your Letters of Conservatorship with the county recorder in every county where the conservatee owns real estate. You have to determine how much conservatee’s cash property is worth. You must get a court-appointed referee to figure out how much the estate’s noncash property is worth. The you have to file an inventory and appraisal describing the conservatee’s property and showing its value. This is due no more than 90 days after you become conservator.

Make sure there is enough insurance to cover the property of the estate. Also, make sure it’s the right kind of insurance. Keep the insurance in effect for each property for the whole time that you manage property as conservator.

You must keep complete, exact records of every financial transaction that has to do with the estate. Use the checkbook for the conservatorship checking account to keep records of the money that comes in and the expenses you pay.

You’ll have to prepare an accounting report of all income, money, and property you get, what you spent, the date of every transaction, the purpose of every transaction, and what’s left after you pay the estate’s expenses.

A year after you become conservator, you must file a petition to ask the court to approve your accounting. After that, you must do this annually. Save your receipts. The court may want to see them. If you don’t file your accounting, the court will order you to file it. And you may be even removed as conservator.

If you’re married to, or the domestic partner of, your conservatee, you must tell the court about any court action you file that would end or change your marriage, or any act that would end your domestic partnership. You must tell the court about these events no more than 10 days after they happen. File a notice with the court.

Limited conservatorship is for a person who is developmentally disabled with limited responsibilities for the person and their estate. As a limited conservator, you can only take care of the part of conservatee’s life and finances that are described in your Letters of Conservatorship and in the court’s order appointing you. The conservatee keeps all other legal and civil rights. Most of the information in the sections on the Conservatee’s Rights, Conservator of the Person, and Conservator of the Estate applies to limited conservatorships. But talk to your lawyer so you can be sure exactly what applies to your case.

You must get treatment, services, and opportunities to help the limited conservatee become as independent as possible. This can be training or education, medical and psychological services, social opportunities, vocational opportunities, and other appropriate help.

If the court chooses you as a temporary conservator, you have the same duties and powers that a regular conservator has. Except the conservatorship will end on the date written in your Letters of Temporary Conservatorship. A temporary conservator acts only until a permanent conservator is appointed.

A temporary conservator shouldn’t make long-term decisions or changes that can wait for the permanent conservator. You can’t move a conservatee to another home or sell or give away the conservatee’s home or any other property without the court’s permission.

Most of the information in the sections on the Conservatee’s Rights, Conservator of the Person, and Conservator of the Estate also applies to temporary conservatorships. But talk to your lawyer about what you shouldn’t do because of the time limit on your conservatorship.

Usually the conservatee has a right to make his own will, even if the conservator controls his finances. The only time you will be able to make or change existing estate plan for conservatee is if the court allows. That may be in the cases when conservatee is too sick to do it himself, or the conservatorship was established because someone was taking advantage of the conservatee or exerting undue influence on him.

Substituted Judgment will have to be submitted to court in order to establish or change the estate plan for conservatee. The petition for Substituted Judgment is usually submitted after the hearing, however if there is an emergency situation and the planning is needed immediately that could be filed along with your initial conservatorship paperwork.

The notices will have to be sent to all possible beneficiaries and heirs of the conservatee. It is important to show that this is what the conservatee would want to do for herself what the petition is asking. If your petition asks for big changes, you must explain to the Court why these changes are needed. Existing trust/will (or a draft) shall be filed along with the substituted judgement.

1. WHAT IS A CONSERVATORSHIP?
Conservatorship is the legal proceedings where the judge decides that the person (conservatee) is unable to care for themselves or their finances and appoints another person or organization (conservator) to be in charge of conservatee’s care, finances or both.

In other states it could be also called guardianship, but in California guardianship proceeding is used for minors, and conservatorship – for adults.

There are a few kinds of conservatorship: conservatorhip for the person, for the estate or both. There can also be temporary conservatorship, limited conservatorship for developmentally disabled person, LPS conservatorship.

2. DO I NEED TO PETITION A COURT FOR CONSERVATORSHIP?
Usually if you want to be taking care of a person or their finances, you will need to petition a court to establish the conservatorship. However, there are situations when it would not be necessary to go through the court. For example if the person has executed the power of attorney for health care and the power of attorney for assets assigning you as their attorney-in-fact that would most likely be sufficient for you to act on their behalf, provided that the person does not object.

Similarly, if conservatee still has capacity and executes such power of attorney it could avoid the conservatorship proceedings.

Sometimes a spouse will be able to manage the estate when the property is titled as joint tenants or as community property without establishing the conservatorship.

Also, if there are no assets and the only income a person receives is the social security or welfare, a representative payee for social security benefits could be assigned to collect the benefits.

​

3. WHO CAN FILE FOR CONSERVATORSHIP?
The preference is given to a spouse, adult kids, parents, grandparent, sibling, relative, etc. However, if there are no close people available, then even a friend can file.

If there is no suitable conservator, the professional conservator can be appointed.

If there is no money in the estate to pay the fees of conservator for their work, a public guardian could be assigned.

Before you file for the conservatorship it is always good to find out if anyone else might be filing.

4. WHERE IS THE PETITION FOR CONSERVATORSHIP FILED?
Conservator’s petition is filed in superior court in a county where the proposed conservatee lives.

5. HOW LONG THE PROCEDURE OF APPOINTING THE CONSERVATOR WILL TAKE?
It takes about 10 weeks from the submission of petition to get a hearing date. If no one contests the conservatorship and the court investigator agrees with the proposed conservator, the conservator will be appointed at the hearing and letters of conservatorship will be issued soon after.

However, if you were filing for the conservator of the estate the bond may be required and there are further duties that will have to be fulfilled. Soon after the appointment, conservator of the estate will have to submit an inventory and appraisal of all conservatee’s assets to the court. In a year after becoming a conservator, an annual accounting will have to be filed with the court. The accounting will have to be done annually after that.

6. HOW MUCH WILL THE CONSERVATORSHIP COST?
The filing fee for the conservatorhip is $395. Other mandatory court fees include investigator’s fees, PVP attorney’s fees, if such is assigned. Subject to court’s approval, the conservator can be reimbursed from the estate, and so is the conservator’s attorney.

7. WHAT DO I NEED TO KNOW ABOUT THE CONSERVATORSHIP PROCEEDINGS?
After physician or licensed psychologist fills out a Capacity Declaration of the conservatee, the petition with all required other forms will be submitted to court.

A hearing date will be set that you will have to attend. Certain people will have to get a notice; like grandparents, parents, brothers and sisters, children, grandchildren, and spouse even if they are not interested in becoming conservators. There will be an investigator and in most cases PVP attorney assigned to investigate conservatee’s needs and determine conservatee’s best interest.

If the conservatorhip for the estate has been petitioned for, the bond may have to be filed to secure the property of the estate.

If no other party or investigator objects to the appointment of conservator the judge will approve the petition and Letters of Conservatorship will be issued.

An inventory and appraisal and eventually an accounting will have to be filed in cases of estate conservatorship. Later, the accounting will have to be filed to court annually.

Also, many times a separate petition for court’s approval will have to be submitted if any major transactions need to be accomplished, e.g. home transfer, sale, or to approve/change existing estate plan for conservatee.

The conservator for the person shall report to the court on conservatees personal matters and prepare a personal care plan.

Our experienced law offices are well versed in the conservatorship proceedings, let us handle your matters in the best possible manner, call us 1-866-822-7211.

8. WHAT ARE THE CONSERVATEE’S RIGHTS?
A conservatee does not lose all rights. They have the right to be treated with understanding and respect; have their wishes considered; and be well cared for by you. They can still have a say in important decisions: control their own salary; make or change their will; get married; get mail; have a lawyer; ask a judge to change conservators; ask a judge to end the conservatorship; vote, unless a judge says they’re not able to; control personal spending money if a judge says they can have an allowance and make their own health-care decisions, unless a judge gives that right to a conservator.

9. WHAT ARE THE DUTIES OF THE CONSERVATOR OF THE PERSON?
When the court chooses you as the conservator of a person, this means you have to arrange for the conservatee’s care and protection, decide where the conservatee will live. You will be in charge of conservate’s health care, food, clothes, personal care, housekeeping, transportation, and recreation.

You can decide where the conservatee will live. But you must choose the least restrictive place. It has to be appropriate, safe, and comfortable for the conservatee. And it has to let the conservatee be as independent as possible.

You must tell the court every time the conservatee’s address changes.

You can’t move the conservatee out of state.

You can’t put the conservatee in a mental health treatment facility. You may be able to put the conservatee in a special residential care facility with a secure fence around the property if the conservatee has dementia and the court agrees with you. But you have to make sure the facility is appropriate, meets the conservatee’s special needs, and is not more restrictive than necessary.

You are responsible for making sure that the conservatee’s health-care needs are taken care of.

You can’t give or deny consent for medical treatment if the conservatee doesn’t agree, unless the court gives you that exclusive right.

If the court gives you the power to approve the use of certain very strong medications to treat dementia, make sure the doctors try other, less intrusive treatments first. If someone else is handling the conservatee’s finances, that person is the conservator of the estate. You must work together to make sure the conservatee can pay for the care you arrange. The conservator of the estate must approve what you buy for the conservatee, or you may not get reimbursed.

10. WHAT ARE THE DUTIES OF THE CONSERVATOR OF THE ESTATE?
The money and property the conservatee owns are called the conservatee’s “estate.” When the court chooses you to be the conservator of an estate, you will: manage the conservatee’s finances; protect the conservatee’s income and property; make a list of everything in the estate; make a plan to make sure the conservatee’s needs are met; make sure the conservatee’s bills are paid; invest the conservatee’s money; make sure the conservatee gets all the benefits he or she is eligible for; make sure the conservatee’s taxes are filed and paid on time; keep exact financial records; and make regular reports of the financial accounts to the court and other interested persons.

In order to manage the assets of the estate properly you must make smart investments, keep the estate and personal assets separate. There are a lot of other limits on how you can handle the estate’s property. Unless you have a court order, you can’t pay yourself or your lawyer with the estate’s money, give away any part of the estate or borrow money from the estate.

If you don’t get permission from the court when you have to, you may have to pay back the estate from your own money. And you may be removed as conservator. Please call our law offices to find out more what the law is about sales, leases, mortgages, and investments.

If you’re chosen to be conservator of an estate, you must make and keep a list of what the estate owns. To do this, you need to locate all the property that the conservatee owns. Put the personal property into your name as conservator of the estate. For real estate, file a copy of your Letters of Conservatorship with the county recorder in every county where the conservatee owns real estate. You have to determine how much conservatee’s cash property is worth. You must get a court-appointed referee to figure out how much the estate’s noncash property is worth. The you have to file an inventory and appraisal describing the conservatee’s property and showing its value. This is due no more than 90 days after you become conservator.

Make sure there is enough insurance to cover the property of the estate. Also, make sure it’s the right kind of insurance. Keep the insurance in effect for each property for the whole time that you manage property as conservator.

You must keep complete, exact records of every financial transaction that has to do with the estate. Use the checkbook for the conservatorship checking account to keep records of the money that comes in and the expenses you pay.

You’ll have to prepare an accounting report of all income, money, and property you get, what you spent, the date of every transaction, the purpose of every transaction, and what’s left after you pay the estate’s expenses.

A year after you become conservator, you must file a petition to ask the court to approve your accounting. After that, you must do this annually. Save your receipts. The court may want to see them. If you don’t file your accounting, the court will order you to file it. And you may be even removed as conservator.

If you’re married to, or the domestic partner of, your conservatee, you must tell the court about any court action you file that would end or change your marriage, or any act that would end your domestic partnership. You must tell the court about these events no more than 10 days after they happen. File a notice with the court.

11. WHAT IS A LIMITED CONSERVATOR?
Limited conservatorship is for a person who is developmentally disabled with limited responsibilities for the person and their estate. As a limited conservator, you can only take care of the part of conservatee’s life and finances that are described in your Letters of Conservatorship and in the court’s order appointing you. The conservatee keeps all other legal and civil rights. Most of the information in the sections on the Conservatee’s Rights, Conservator of the Person, and Conservator of the Estate applies to limited conservatorships. But talk to your lawyer so you can be sure exactly what applies to your case.

You must get treatment, services, and opportunities to help the limited conservatee become as independent as possible. This can be training or education, medical and psychological services, social opportunities, vocational opportunities, and other appropriate help.

12. WHAT IS A TEMPORARY CONSERVATOR?
If the court chooses you as a temporary conservator, you have the same duties and powers that a regular conservator has. Except the conservatorship will end on the date written in your Letters of Temporary Conservatorship. A temporary conservator acts only until a permanent conservator is appointed.

A temporary conservator shouldn’t make long-term decisions or changes that can wait for the permanent conservator. You can’t move a conservatee to another home or sell or give away the conservatee’s home or any other property without the court’s permission.

Most of the information in the sections on the Conservatee’s Rights, Conservator of the Person, and Conservator of the Estate also applies to temporary conservatorships. But talk to your lawyer about what you shouldn’t do because of the time limit on your conservatorship.

13. CAN I MAKE ESTATE PLANNING DECISIONS FOR THE CONSERVATEE?
Usually the conservatee has a right to make his own will, even if the conservator controls his finances. The only time you will be able to make or change existing estate plan for conservatee is if the court allows. That may be in the cases when conservatee is too sick to do it himself, or the conservatorship was established because someone was taking advantage of the conservatee or exerting undue influence on him.

Substituted Judgment will have to be submitted to court in order to establish or change the estate plan for conservatee. The petition for Substituted Judgment is usually submitted after the hearing, however if there is an emergency situation and the planning is needed immediately that could be filed along with your initial conservatorship paperwork.

The notices will have to be sent to all possible beneficiaries and heirs of the conservatee. It is important to show that this is what the conservatee would want to do for herself what the petition is asking. If your petition asks for big changes, you must explain to the Court why these changes are needed. Existing trust/will (or a draft) shall be filed along with the substituted judgement.

14. CAN I MAKE MEDICAL DECISIONS FOR THE CONSERVATEE?
If you are the conservator of the estate and not of the person, then no. If you do have a conservatorship of the person then you can supervise the medical care unless the conservatee does not want you to. If there is an emergency situation then you will be able to make a decision even over the objection of the conservatee.

If there is a certain medical treatment that a conservatee needs but does not want then you can ask a court for a special medical power to give informed consent for the conservatee.

If conservatee is unable to make informed consent because of dementia or incapacitation, the court may give you an authority to make most medical decisions without prior approval of court.

A special court permission is needed if the conservatee has dementia and needs to be in confined long-term care facility, or for special drugs to treat the dementia.

If the conservatee’s situation changes, you can always file a new petition to ask for the new powers.

The court investigator gives neutral information about your case to the judge. The investigator will conduct a meeting with you and proposed conservatee. He will explain what the conservatorship is, the rights of the conservatee, what the hearing will entail. The investigator is allowed to see conservatee’s confidential medical records. If it is determined that the conservatee is not able to comprehend and express an opinion, investigator will recommend that a lawyer (PVP attorney) be appointed by court to represent proposed conservatee. Finally, an investigator will write a confidential report and make recommendations about the case to the judge.

Yes. The investigator will review the case annually. If there are any problems, s/he will write a report with recommendations to the judge to appoint a lawyer for the conservatee which may start a process to remove you as conservator.

Some other situations that will need investigator’s involvement include: when temporary conservator wants to move the conservatee out of the residence; when the conservator wants to sell the conservatee’s home; when the conservator petitions for exclusive authority to make medical decisions for the conservatee; or when conservatee asks for special powers to take care of the needs of a demented conservatee.