In family and estate law, there are several ways to protect someone’s well-being when they are incapacitated or unable to make sound decisions on their own. Conservatorship is one of these, typically established for individuals who are limited in decision-making or communicating their choices as a result of physical or mental disabilities.
A conservatorship is made up of two different roles:
- Conservator: This is the person the court assigns to handle another person’s decisions or certain aspects of their daily affairs.
- Conservatee: The individual the court has determined requires a conservator to handle their estate or affairs. Depending on a person’s limitations or challenges, they may require a different type of conservatorship.
Different Types of Conservatorship In California
While the powers inherent in a general or limited conservatorship are similar to those associated with a POA, there is a difference between a power of attorney and a conservatorship. With a POA, one adult chooses another to decide for them if they become incapacitated. For example, many people who come to us for estate plans designate an adult child or another close relative to be their POA in the event of an emergency or at the beginning of a dementia diagnosis.
In a conservatorship scenario, the individual is already incapable of making that voluntary decision, so a loved one applies to become a conservator, after which the court reviews the details and grants (or refuses to grant) conservatorship based on a wide range of criteria.
Once a conservatorship is established, the conservatee is stripped of the ability to make decisions in whole – or in part – from the conservatee. That said, the goal is to help, not harm, the conservatee to these decisions are made with the utmost care, and the courts aim to grant the least restrictive tenets possible.
There are four different types of conservatorships, each of which dictates which type of decisions or support can be decided by the conservator.
This is the most comprehensive of the two types of conservatorship. A general conservatorship is similar to a Power of Attorney (POA) in that the conservator has complete control over all of the decisions pertaining to the conservatee, including decisions pertaining to:
- Legal decisions
- Medical choices
- Decisions around housing
- And so on
The two most likely candidates for becoming a conservatee include adult children with developmental disabilities who cannot care for themselves and senior adults with dementia or age-related cognitive decline that impact their ability to make sound decisions or care for themselves on a daily basis.
This conservatorship limits the conservator’s powers, specifying up to seven different areas of decision-making or planning. Limited conservatorships are used in scenarios where the conservatee has some decision-making capacity, but may need help in specific areas.
Depending on the abilities of the conservatee, a limited conservatorship grants permission for the conservator to:
- Make decisions about the conservatee’s education.
- Provide or withhold medical consent on behalf of the conservatee.
- Allow or limit the conservatee’s social and sexual contacts and relationships.
- Fix, repair, or maintain a conservatee’s residence or specific dwelling.
- Access the conservatee’s confidential records and papers.
- Provide or withhold consent for a conservatee to marry.
- Exercise the conservatee’s right to enter into a contract.
As you can see, many of these areas are very personal, so the courts do not take conservatorship rulings lightly. There must be overwhelming proof that a person cannot make sound decisions or that their decision-making puts them in repeat danger before granting limited or general conservatorships.
The judge will review these seven areas to determine whether the prospective conservatee can make safe or reasonable decisions for themselves. If not, that will be added to the conservator’s responsibilities.
Temporary conservator of the person or the estate
Conservatorship in California can be permanent or temporary. One of the most famous cases of conservatorship in the United States involved the famous pop star, Britney Spears. The court granted her father and a team of lawyers conservatorship of her estate after a series of incidents that caused them to question her mental health and ability to make sound decisions.
Thirteen years later, Spears petitioned to end the conservatorship and won the case, so she is now in control of her affairs again. This is an example of how conservatorships can be temporary and how dedicated the courts are to protecting the conservatee’s rights.
Depending on which areas of a person’s life are covered by a conservatorship, the conservatorship is categorized as:
A conservator of the person
A conservator of the person may only make decisions that support the general physical care and well-being of another person rather than their financial or legal decisions.
Conservator of the estate
If the individual is capable of taking care of their physical well-being or is already living in a facility or a community where they’re cared for – such as an adult child with special needs – the parents or siblings may have a conservatorship of the estate, protecting the financial and legal rights of their loved one.
Conservatorship with multiple conservators
There is often more than one conservator assigned to a conservatorship. In the case where two people are designated as conservators, they must be in complete agreement before any decision is made. Otherwise, the court makes the ultimate decision.
If three or more conservators are assigned to a conservatee, the majority vote in any decision wins. Multiple conservators may be more complicated but may ensure multiple sides of a decision are explored before a final decision is made for someone unable to make decisions for themselves.
Pursuing conservatorship in California
Again, a conservatorship is always designed to honor and uphold an individual’s maximum self-reliance and independence. In addition to a series of form submissions, the court requires prospective conservators to complete an educational course within six months of becoming a conservator. In some cases, the courts may also investigate whether conservatorship makes sense and – if so – which type of conservatorship is necessary.
Let Tseng Law Firm Facilitate a Stress-Free Conservatorship
Do you feel an adult loved one would benefit from a conservatorship? Contact Tseng Law Firm to discuss your situation. We can assist you in accurate forms completions, court filing, and how to prove a conservatorship is necessary.