For an adult child, there are few things more difficult than realizing that a father can no longer safely care for himself and/or his affairs. If you have arrived at that realization then the next step is to petition to become your father’s conservator. What happens though if someone doesn’t agree with your decision to pursue conservatorship? Let’s see what happens if someone objects to you becoming your father’s conservator.
What Is a Conservatorship?
In California, if a court determines that an adult is unable to manage his/her affairs (finances, assets, and estate) and/or make decisions for himself/herself, the court will appoint a Conservator. California recognizes both a Conservatorship of the Person and a Conservatorship of the Estate. A Conservatorship of the Person is established when an adult is unable to care for his/her personal needs, such as maintaining regular hygiene and taking prescribed medication. A Conservator of the Person will be responsible for protecting the adult and will have the authority to make personal decisions for the adult, such as where he/she will live. A Conservatorship of the Estate is established when an adult cannot handle financial matters. A Conservator is appointed to manage the adult’s income and pay bills and may have authority to do things such as sell property or encumber assets owned by the adult.
What Steps Are Required in the Conservatorship Process?
Conservatorship is considered the most restrictive option when an adult needs assistance. As such, it is also thought of as the option of last resort. To become someone’s conservator you must petition the appropriate court. In the petition, you must explain why the proposed conservatee needs a conservator. When you file the petition, you are also required to officially serve the proposed conservatee (in this case your father) as well as close family members with a copy of the petition. This requirement is in place to ensure that interested parties are given the opportunity to object to the appointment of a conservator. If any does object, they must file an official objection with the court.
What Happens If Someone Objects?
Whether someone objects or not, the next step in the conservatorship process is for the court to appoint an investigator. The investigator will review medical documents, talk to people close to the proposed conservatee, and attempt to interview the proposed conservatee himself. Courts tend to rely heavily on the reports filed by the investigators in a conservatorship proceeding. Nevertheless, if someone objects, that person may also speak up at the hearing which is the next step in the process. The court will set the petition for a hearing at which time the petitioner must present any evidence and/or testimony that will help the court recognize the need for a conservator. Anyone who objects, either to the need for a conservator in general, or to you being appointed specifically, may also present evidence and testimony. This includes your father. A proposed conservatee has the right to object to having a conservator appointed and/or to the extent of the authority granted to a conservator. In fact, if your father is capable of testifying, the court will likely pay close attention to how he feels about having a conservator.
While you are not required to have an attorney represent you in a conservatorship proceeding, it is in your best interest to retain one if you believe there is a chance someone will object to either the appointment of a conservator in general or to the court appointing you as the conservator.
Please download our FREE estate planning checklist. If you have additional questions or concerns about incapacity planning, contact us at the Northern California Center for Estate Planning & Elder Law by calling (916)-437-3500 or by filling out our online contact form.
Latest posts by Timothy P. Murphy (see all)
- Use Trust Protectors for Added Protection and Flexibility - October 13, 2019
- How Will You Obtain the Care You Need? - October 11, 2019
- Income Tax Basis in Estate Planning - October 9, 2019