Elderly woman being cared for by aid

January 25, 2021

A Conservatorship is a legal proceeding where a judge appoints a responsible person or organization (called the “Conservator”) to care for another adult (called the “Conservatee”) who cannot care for himself or herself and/or manage his or her own finances.  They can be conducted in either the Probate Division of the Superior Court of California (called Probate Conservatorships) or some Conservatorships (known as Lanterman-Petris-Short (referred to as LPS) Conservatorships) are conducted in mental health court.  For purposes of this writing, I am referring only to Probate Conservatorships.

Conservatorships are something I recommend my clients attempt to avoid, if possible.  They are public; expensive; and often expose “dirty laundry” or “embarrassing activities” if they are contentious.   If they become contentious, depending on the claims to support the Conservatorship, they can sometimes result in a rift in the relationship between the Conservator and the Conservatee.  They are necessary though.  If you or your loved one does not have a complete estate plan and/or may have fallen victim to undue influence or elder abuse from individual(s) who have less than honorable intentions, a Conservatorship is often the only avenue to protect the Conservatee and/or his or her assets from abuse.  There are varying degrees of Conservatorships:

Limited Conservatorship.  Limited Conservatorships are a type of Conservatorship usually involving a parent who is caring for an adult child with developmental disabilities and cannot fully care for themselves or their finances.

General Conservatorship.  Conservatorships of adults who cannot take care of themselves or their finances. These Conservatees are often elderly people but can also younger people who are susceptible to undue influence; financial abuse; or have been seriously impaired, due to an illness or injury.   There are two types of general Conservatorships:  Conservatorship of the Person and Conservatorships of the Estate.  An individual can be deemed in need of a Conservatorship of the Person, a Conservator of the Estate or both:

Conservator of the Person.  This type of Conservatorship is necessary when the Conservatee needs assistance with their daily living or to avoid being unduly influenced.  It often is the case that the proposed Conservatee lacks capacity to make decisions, medical and financial.  However, that is not a prerequisite for a Conservatorship.  A person who may have capacity to make medical and financial decisions can be deemed in need of a Conservatorship if they are particularly susceptible to undue influence and are making poor decisions as a result.  Depending on the degree of impairment, a Conservator of the Person can be appointed with powers to make all or none of the Conservatee’s medical decision and with special powers can be granted the authority to administer dementia medications and arrange for placement in a locked memory care facility.

A Conservator of the Estate.  This type of Conservatorship is necessary when the Conservatee is deemed unable to manage his or her financial affairs and needs assistance in managing the financial matters, such as paying bills and collecting a person’s income.  The establishment of a Conservatorship imposes significant limitations on the Conservatee’s ability to act on his or her own behalf. When a Conservatorship of the Estate is established, a Conservatee is presumed to lack capacity to contract, to sell, transfer, or convey property, to make gifts, and to incur debts.

While a Conservatorship may substantially limit a Conservatee’s rights to contract, make medical decisions and manage their finances, a Conservatee is not without free will.  The court will require clear and convincing evidence to establish a need to sell the Conservatee’s residence and relocate him or her to a facility or another home.  That means that if the Conservatee opposes a relocation, barring a financial need or inhabitable conditions, the Court will likely take the Conservatee’s wishes into consideration and not allow the Conservatee to be relocated.

Additionally, the recent case of the Conservatorship of Navarrete E070210
Filed December 4, 2020; Modified and Certified for Publication December 21, 2020
Fourth District, Div. Two recently held that “An adult conservatee’s disability does not put her in the legal position of a minor; thus, the court may not compel visitation over the objection of the Conservatee and her Conservator.”  Prior to that ruling, it was not uncommon for the court to order visitation or supervised visitation between the Conservatee and her adult children or other relatives.  In the case of the Conservatorship of Navarrete, the Conservatee argued that such visitation was against her constitutional right to privacy and autonomy; and that her right to refuse visitors is not restricted by the Conservatorship statutes.  

            Although I recommend that my clients consider a Conservatorship as a last resort for the reasons I stated, it is also the position of the court that a Conservatorship be the “least restrictive alternative.”  That means that to establish the Conservatorship, the petitioner must explain why other alternatives, such as estate planning or voluntarily accepting assistance are not suitable.  Should a Conservatorship be deemed necessary, Conservatee’s should take some comfort in knowing that the court will not allow them to be removed from their home (absent clear and convincing evidence that it is necessary) and thanks to the Navarrete ruling, Conservatees will now be able to voice objections as to their visitors. 

If you or your loved one need more information about conservatorships or alternatives to conservatorships, we can help. Contact Cannon Legal Firm for a free consultation or additional resources for caring for a dependent loved one. Dana@CannonLegalFirm.com ~ (562) 543-4529 ~  www.CannonLegalFirm.com

About the author 

Dana Cannon

Dana M. Cannon has many years of experience with Probates, Conservatorships, Trusts and Estates. During that time she has advised clients on multi-million dollar trust administrations; handled complex litigation; performed estate planning; and represented clients in contested and uncontested conservatorship, guardianship, probate and trust matters. She has been a volunteer at the Los Angeles Superior Court Pro Bono Probate Settlement Program since it began.  She understands that these matters may not just involve money. They are often fueled by emotions and because of that this isn’t just business, it’s personal. She looks forward to assisting you with your legal needs.

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