What happens to someone who doesn’t have a power of attorney for health care (PAHC) or durable power of attorney for financial matters (DPAFM), but who can no longer adequately take care of his or her personal care or finances? Depending on the person’s needs and assets, a conservatorship may need to be established.
In a conservatorship, a judge appoints a person or organization to take care of another person’s personal needs or financial matters, or both. The person the judge appoints to take care of the other person’s affairs is called the conservator; the person who needs help is called the conservatee.
Several types of conservatorships exist. This Fact Sheet focuses on two: (1) conservatorships of the person and (2) conservatorships of the estate.
Conservatorship of the Person
In a conservatorship of the person, a judge appoints a conservator for someone who cannot sufficiently provide for his or her personal needs for physical health, food, clothing or shelter. The judge has discretion to limit the powers given to the conservator as appropriate for a particular conservatee. A conservatee does not lose the right to marry, to vote, to consent to medical treatment, or to make a will, unless the judge decides otherwise.
Conservatorship of the Estate
In a conservatorship of the estate, a judge appoints someone to manage another person’s financial matters. California law permits a judge to appoint a conservator of the estate for someone who is “substantially unable to manage his or her financial resources or resist fraud or undue influence.” Isolated incidents of negligence or improvidence are not enough to prove substantial inability.
For example, if someone occasionally bounces a check, that doesn’t mean that the person is unable to manage his or her finances. If the person is continuously bouncing checks and bills are not being paid, however, a judge may find that the person is substantially unable to manage his or her financial resources.
When a conservatorship of the estate is established, that means that a judge has determined that the conservatee does not have the legal capacity to enter into transactions related to the conservatee’s financial situation, such as making a contract, incurring a debt, or making a gift. The conservatee keeps some rights, including the right to enter into transactions to provide for the necessaries of life and the right to make a will. Depending on the conservatee’s status, the court may broaden or restrict the conservatee’s power to enter into transactions.
If a person needs help with both personal needs and financial matters, a court may appoint a conservator of both the person and estate.
Establishing a Conservatorship
Establishing a conservatorship requires a court proceeding. The following people may file a petition asking the judge to appoint a conservator: (1) the person who needs help (the proposed conservatee), (2) the proposed conservatee’s spouse or domestic partner, (3) a relative of the proposed conservatee, (4) any interested state or local entity or (5) any other interested person or friend.
The conservator can be an individual, such as a family member, friend or private professional conservator. The conservator can also be an organization. In California, certain nonprofit charitable corporations can be conservators. There are also trust companies that can serve as conservators of the estate only (not of the person). For people who do not have any friends or family available to act as conservator, the judge may appoint a county agency called the Public Guardian.
Choosing the Conservator
If the proposed conservatee has sufficient capacity, he or she can nominate someone to be the conservator. The nomination has to be in a signed document, but the document can be signed before or after the conservatorship proceedings begin. Some PAHCs or DPAFMs include a section where a person nominates a conservator.
If the proposed conservatee nominates a conservator, California law requires the judge to appoint that person, unless the judge determines that the appointment is not in the proposed conservatee’s best interests. If the proposed conservatee does not nominate anyone, or the judge decides that the conservatee’s nomination is not in the conservatee’s best interests, the judge has discretion in appointing the conservator. When choosing the conservator, the judge is to be guided by the proposed conservatee’s best interests.
If a nominee of the proposed conservatee is not chosen, and the judge finds that more than one person is equally qualified, the judge must choose the conservator according to the following order:
• The proposed conservatee’s spouse (or domestic partner) or his or her nominee.
• The proposed conservatee’s adult child or the child’s nominee.
• The proposed conservatee’s parent or the parent’s nominee.
• The proposed conservatee’s sibling or the sibling’s nominee.
• Any other eligible person or entity.
The Judicial Council of California’s “Handbook for Conservators” includes a description of conservator duties. All conservators are required to have a copy of the handbook.
It is the conservator’s responsibility to ensure that the conservatee’s needs are met. Some of the duties of the conservator of the person discussed in the Handbook for Conservators are:
• Making decisions about the conservatee’s living arrangements.
• Planning how to meet the conservatee’s needs for food, clothing and health care and other personal needs.
• If a conservator of the estate has also been appointed, coordinating with that person so that plans are not made for care beyond the financial means available to the conservatee.
A conservator of the estate manages financial matters for the conservatee. Some of the duties of the conservator of the estate discussed in the Handbook for Conservatorsare:
• Determining the assets owned by the conservatee and filing an inventory and appraisal with the court.
• Paying the conservatee’s bills.
• Making appropriate investments.
• Applying for benefits.
• Keeping financial records and filing periodic accountings with the court.
When Does a Conservatorship End?
A conservatorship ends at the conservatee’s death or by court order. The judge will terminate a conservatorship if the judge determines that the conservatorship is no longer needed. For example, a conservatee may have had a condition that was only temporarily incapacitating. Once the conservatee recovers, there would no longer be a need for the conservatorship. A conservatorship does not end upon the conservator’s death; if the conservatorship is still needed, the judge will appoint a new conservator.
The time and financial cost involved in a conservatorship are significant. In many cases, a conservatorship can be avoided by having a well-prepared PAHC and DPAFM in place before incapacity occurs.