Are you an adult child who is having to watch your parent’s physical and/or mental health deteriorate? Are you concerned about your parent’s physical safety and/or ability to handle finances as a result of that deterioration? If so, you are probably struggling with a solution. Like most people in your position, the idea of taking away your parent’s independence by pursuing guardianship may not sit well with you. On the other hand, doing nothing could result in serious harm to your parent or to your parent becoming a victim of someone who preys on the elderly and disabled. Let’s see whether a conservatorship over your parent is the best answer.
What Is Conservatorship?
Conservatorship is a legal arrangement wherein a judge appoints a responsible person or organization (the “Conservator”) to care for another adult (the “Conservatee”) who cannot care for himself or herself or manage his or her own finances. In other states, this is often referred to as “guardianship.” In California, there are two types of conservatorship:
- A Conservator of the Person whose duties might include:
- Arrange for the Conservatee’s care and protection.
- Decide where the Conservatee will live.
- Make arrangements for the Conservatee’s
- Health care
- Personal care
- Conservator of the Estate whose duties might include:
- Managing the Conservatee’s finances.
- Locating and taking control of all assets.
- Collecting the Conservatee’s income.
- Making a budget to show what the Conservatee can afford.
- Paying the Conservatee’s bills.
- Responsibly investing the Conservatee’s money.
- Protecting the Conservatee’s assets.
Is Conservatorship Warranted?
If you decide to petition the court to become your loved one’s Conservator, the court will investigate and set a hearing in order to decide if conservatorship is warranted. Conservatorship is the most restrictive option available. As such, the court will always try to determine if a less restrictive alternative will suffice. In other words, the court will consider whether the proposed Conservatee would be safe if something less than a full conservatorship were in place. For example, would requiring a home health aide be sufficient to keep the proposed Conservatee safe? Are you, or another family member, available to help watch over the proposed Conservatee on a regular basis? If not, can a home health care worker be retained to help? Would having someone at the house on a regular basis resolve your concerns? Likewise, is there a financial power of attorney in effect that could be used in lieu of appointing a Conservator?
If you are considering conservatorship, you should consider all the same questions that the court is likely to consider. Conservatorship is considered the option of last resort because of the extent of the authority it gives to the Conservator and the amount of authority it takes away from the Conservatee. Understandably courts are reluctant to order a full conservatorship without clear and convincing evidence that it is needed.
Because courts are very conservative, generally, when evaluating the need for a Conservator, it is in your best interest to consult with an experienced elder law attorney if you are contemplating the need for a Conservator. The conservatorship process can be time consuming and costly – particularly if someone objects to you becoming a Conservator. Moreover, objections are far from uncommon. When you petition the court, you must notify the proposed Conservatee and immediate family members – all of whom may object to the appointment of a Conservator at all, to the extent of the authority granted to a Conservator, and/or to the appointment of you as the Conservator.
Please download our FREE estate planning checklist. If you have additional questions or concerns about how to avoid a conservatorship, 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.