In California, there is a legal distinction between a conservatorship and a guardianship. Although both relationships require a court proceeding to be established, a conservatorship is established for adults and a guardianship is established for children. If an adult loved one needs someone to legally take control of their care, then you may need to establish a conservatorship.
Understanding all of the complexities involved in establishing a conservatorship for the elderly can be a challenge. Yet, there are a few simple guidelines that can make the process easier. Essentially, a conservatorship provides a method for someone to be appointed by a court to be the legal conservator of an elderly person. Here is what you need to know.
Why a conservatorship might become necessary
In many cases, a conservator is required because a loved one has become ill or incapacitated and therefore no longer capable of looking after themselves. If you are appointed as a conservator for a loved one, you will now be capable of making all of the decisions for that person, referred to as the “conservatee.” That means you are completely responsible for your loved one’s well-being.
Incapacity must first be established before a conservator is appointed
Before a conservator can be appointed and the conservatorship established, the court must first determine that the elderly person is unable to make their own decisions and, therefore, in need of care. Once the conservatorship is established by the court, the conservator is no longer required to consent to the conservatee’s demands because the conservatee is no longer in control of his or her own decisions.
In order to establish a conservatorship, the court needs documentation
Becoming a conservator for an elderly loved one does not require a substantial number of documents. However, there is some paperwork that must be completed and submitted to the probate court in order to have the conservatorship established. Once the necessary documentation has been provided to the court and fees paid, a hearing will be scheduled.
Establishing a conservatorship is a serious matter
For anyone considering conservatorship of an elderly loved one, it is crucial that you understand the process is a serious matter. Being appointed as a conservator over an individual’s life and finances is a huge responsibility. Before you undertake this responsibility, you should understand what you will be expected to do. Let our Sacramento elder law attorneys explain the basics.
Understanding your duties as a conservator
The duties of a conservator are specified by the probate court that appointed you as the conservator. The principal duty of a conservator is to protect the conservatee (also referred to as the “conservatee”), as well as that individual’s assets. Similar to a trustee, a conservator must comply with his or her fiduciary duty.
That means the conservator is required to act only in the best interests of the person to whom they have been appointed as conservator. Being a conservator also gives you the power to make decisions regarding how the conservatee’s money will be spent, make decisions regarding proper medical treatment and make living arrangements for the conservatee if required.
There are certain limitations on a conservator’s authority
It is important to remember that a conservatorship is a court-supervised proceeding. Therefore, a conservator will need to obtain permission from the judge before certain decisions are made and certain actions are taken on behalf of the conservatee.
For instance, a conservator cannot instruct a health care provider to withhold life-saving medical treatment without approval from a court after a petition has been filed. A conservator is also required to provide an annual report to the court concerning the status of the conservatee and their assets.
Some alternatives to conservatorship you can consider
Before you make the decision to establish a conservatorship, you should consider a few less restrictive alternatives. These other choices may still be able to provide the protection you need for your loved one. One of those options is a Limited Conservatorship, which is a good option for adults with developmental disabilities who are not entirely capable of managing their own affairs but should not be required to relinquish control entirely, as would be required with a General Conservatorship.
Several other alternatives include joint bank accounts, revocable living trusts, protective orders, durable financial powers of attorney, and advance directives for health care. Our Sacramento elder law attorneys can help you draft these important documents.
Download our FREE estate planning checklist today! If you have questions regarding how to avoid a conservatorship or any other elder law matters, please contact us at the Northern California Center for Estate Planning and Elder Law for a consultation. You can contact us either online or by calling us at (916) 437-3500. We are here to help!