There are court procedures established in every state to provide for the legally authorized care of an individual who is unable to care for themselves. For minor children who no longer have a parent available to care for them, a guardianship can be established. However, in California, if an adult needs someone to manage their care, a conservatorship is required. If you believe you may need to have a conservatorship established, here are some general facts about a conservatorship in California.
In California, a conservatorship and a guardianship are different
If a loved one, either an adult or a child, needs someone to legally take control of their care, then you need to determine what type of legal relationship needs to be established. If your loved one lives in California, then which type of relationship needs to be created will depend on whether your loved one is a minor or an adult. In California, there is a legal distinction between a conservatorship and a guardianship. Both relationships require a court proceeding to be established, however, a conservatorship is established for adults and a guardianship is established for minor children.
How does a conservatorship work?
The first step in creating a conservatorship is seeking a determination from the court that the person in question is actually incapacitated and in need of care and supervision. When a court determines someone is incapacitated that means the individual is no longer able to make decisions for themselves or provide for their own care. Once a conservatorship has been established, the person being cared for (referred to as the conservatee) must relinquish control over their own affairs.
For this reason, a conservatorships should be an option of last resort. Put another way, seeking a conservatorship should not be considered solely on the basis that you may not agree with a particular decision your parent has made. The need for a conservatorship should not be simply based on a medical diagnosis or finding of disability. As any Sacramento elder law attorney will tell you, the implications of establishing a conservatorship are very serious, so the decision should not be taken lightly.
Understanding the duties of a conservator
The duties of a conservator are set out by the court that has appointed them to the position. The primary duty of a conservator is to protect the individual (referred to as the “conservatee”), as well as his or her assets. Much like a trustee, a conservator has a fiduciary duty which requires him or her to act only in the best interests of the individual to whom they have been appointed. Being a conservator gives you the authority to make decisions regarding how to spend the conservatee’s money, decide on the proper medical care and make living arrangements as necessary.
There are some limitations on a conservator’s authority
A conservatorship is a court-supervised situation, which requires permission from the judge before certain decisions can be made and actions taken. For example, a health care provider cannot be instructed to withhold life-saving medical care until the court has been petitioned and gives approval. A conservator is also expected to submit an annual report to the appointing court regarding the status of the conservatee and his or her property.
Why is a conservatorship necessary?
Some families are faced with a situation where they need to have more control over the affairs of a loved one, but they need a more formal arrangement in order to do so properly. For example, in order to lawfully obtain access to your parent’s finances, you will likely need permission from the court. Another benefit of having a more formal arrangement is that a conservatorship can help to protect adults from exploitation. But remember, a conservatorship is often not the easiest or least costly option. So, be sure to discuss all of your alternatives with your Sacramento elder law attorney.
What are some of the alternatives to conservatorship?
There are a few less restrictive choices other than a conservatorship. These alternatives can still provide the protection you are seeking for your loved one. One option available to California residents is a Limited Conservatorship. This option may be a good choice for adults with developmental disabilities who may not be fully capable of managing their own affairs, but who do not need to relinquish complete control, as required with a General Conservatorship. A few other options include opening joint bank accounts, creating revocable living trusts, establishing protective orders, durable financial powers of attorney, and advance directives for health care.
If you have questions regarding elder law needs, contact the Northern California Center for Estate Planning and Elder Law for a consultation, either online or by calling us at (916) 437-3500.