| Following are questions and answers
concerning conservatorships arranged in what we believe is a
logical sequence. Additional questions and answers are added
regularly, so please visit our site often. Please feel free
to make copies for non-commercial purposes. |
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What is a conservatorship? |
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A conservatorship is a legal arrangement in which an adult oversees the personal care or financial matters of another adult considered by a court to be incapable of managing alone. The incapacitated person is the "conservatee." The person who assumes responsibility is the "conservator."
A California conservatorship must be formally established and ended by a court. To set up a conservatorship, an adult must file a petition with a court, provide a copy to the proposed conservatee and mail it to the proposed conservatee's close relatives. A court investigator then talks to the proposed conservatee and others who may know something about the situation. A hearing date is set, and a judge then decides whether to appoint a conservator.
A conservatorship is intended to protect the rights of persons who are placed under conservatorship.
Once a conservatorship is established, the court plays a role in monitoring the conservator's actions. One year after the conservatorship is established and every two years thereafter, a judge will evaluate the situation.
While a conservatorship exists, periodic court investigations are conducted to verify that it is still required and the conservatee is receiving the appropriate care. If a conservator is handling the conservatee's finances, a financial guarantee or bond must generally be posted.
Conservatorships may be established for the person or the estate or both depending on the situation.
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What are the duties of a conservator? |
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When you are appointed by the court as a conservator, you become responsible to the court and assume certain duties and obligations. All of your actions as conservator are subject to review by the court. An attorney is best qualified to advise you about these matters. You will find additional information in the Judicial Council Handbook for Conservators, which you are required by law to possess.
The Conservatee's Rights
A conservatee does not lose all rights or all voice in important decisions affecting his or her way of life. All conservatees have the right to be treated with understanding and respect, the right to have their wishes considered, and the right to be well cared for by you. A conservatee generally keeps the right to (1) control his or her own salary, (2) make or change a will, (3) marry, (4) receive personal mail, (5) be represented by a lawyer, (6) ask a judge to change conservators, (7) ask a judge to end the conservatorship, (8) vote, unless a judge decides the conservatee is not capable of exercising this right, (9) control personal spending money, if a judge has authorized an allowance, and (10) make his or her own medical decisions, unless a judge has taken away that right and given it to you. Ask your attorney what rights the conservatee does not have and consult your attorney when you are in doubt.
Conservator of the Person
If the court appoints you as conservator of the person, you will arrange for the conservatee's care and protection, decide where the conservatee will live, and make arrangements for the conservatee's health care, meals, clothing, personal care, housekeeping, transportation, and recreation.
Assess The Conservatee's Needs
You must assess the conservatee's needs and decide how to meet them.
Decide Where The Conservatee Will Live
You may decide where the conservatee will live, but you must choose the "least restrictive," appropriate living situation that is safe and comfortable and allows the conservatee as much independence as possible. You must not move the conservatee from the state or place the conservatee involuntarily in a mental health treatment facility without permission of the court. You must notify the court of each change of the conservatee's address and your address. If you are authorized to place the conservatee in a secure facility because of dementia, you must be sure that the placement is appropriate, meets all special needs, and is the least restrictive.
Provide Medical Care To The Conservatee
You are responsible for ensuring that the conservatee's health needs are met. You may not, however, give or withhold consent for medical treatment over the conservatee's objection unless the court has given you exclusive authority to consent because the conservatee has lost the ability to make sound medical choices. If you have the authority to approve the use of psychotropic medications to treat dementia and the behaviors associated with it, you should be sure that other, less intrusive treatment options are explored first.
Work With The Conservator Of The Estate
If someone else is handling the conservatee's assets, the two of you must work together to be sure the conservatee can afford the care you arrange. Purchases you make for the conservatee must be approved by the conservator of the estate or you may not be reimbursed.
Consult Your Attorney And Other Resources
Your attorney will advise you on your duties, the limits of your authority, the rights of the conservatee, and your dealings with the court. If you have legal questions, check with your attorney.
Conservator of the Estate
If the court appoints you as conservator of the estate, you will manage the conservatee's finances, protect the conservatee's income and assets, make an inventory of the conservatorship estate's assets, develop a working plan to ensure that the conservatee's needs are met, make sure the conservatee's bills are paid, invest the conservatee's money, see that the conservatee is receiving all the income and benefits he or she is entitled to, ensure that tax returns are filed on time, keep accurate financial records, and regularly report your financial accounts to the court. (Note: The assets and finances of the conservatee are known as "the estate.")
Managing the Estate's Assets
Prudent investments
You must manage the estate assets with the care of a prudent person dealing with someone else's property. This means you must be cautious and you may not make any speculative investments.
Keep estate assets separate from anyone else's
You must keep the money and property in this estate separate from anyone else's, including your own. When you open a bank account for the estate, the account name must indicate that it is a conservatorship account and not your personal account. Never deposit estate funds in your personal account or otherwise mix them with your or anyone else's property, even for brief periods. Securities in the estate must be held in a name that shows they are estate property and not your personal property.
Interest-bearing accounts and other investments
Except for checking accounts intended for ordinary administration expenses, estate accounts must earn interest. You may deposit estate funds in insured accounts in financial institutions.
Other restrictions
There are many other restrictions on your authority to deal with estate assets. Without prior order of the court, you may not pay fees to yourself or to your attorney, make a gift of estate assets, or borrow from the estate. If you do not obtain the court's permission when it is required, you may be removed as conservator or you may be required to reimburse the estate from your own personal funds, or both. You should consult with an attorney concerning the legal requirements affecting sales, leases, mortgages, and investments of estate property.
Inventory of Estate Property
Locate the estate's property
You must locate, take possession of, and protect all the conservatee's income and assets that will be administered in the estate. You should change the ownership of most assets of the conservatorship into the conservatorship estate's name. For real estate, you must record a copy of your Letters of Conservatorship with the county recorder in each county where the conservatee owns real property.
Determine the value of the property
You must arrange to have a court-appointed referee determine the value of the property unless the appointment is waived by the court. You, rather than the referee, must determine the value of certain "cash items." An attorney can advise you about how to do this.
File an inventory and appraisal
Within 90 days after your appointment as conservator, you must file with the court an inventory and appraisal of all the assets in the estate.
Insurance
You should determine that there is appropriate and adequate insurance covering the assets and risks of the estate. Maintain the insurance in force during the entire period of the administration (except for assets after they are sold).
Record Keeping
Keep an accounting
You must keep complete and accurate records of each financial transaction affecting the estate. The checkbook for the conservatorship checking account is your indispensable tool for keeping records of income and expenditures. You will have to prepare an accounting of all money and property you have received, what you have spent, the date of each transaction, and its purpose. You must describe in detail what you have left after you pay the estate's expenses.
Court review of your records
You must file a petition requesting that the court review and approve your accounting one year after your appointment and at least every two years after that. Save your receipts because the court may ask to review them also. If you do not file your accountings as required, the court will order you to do so. You may be removed as conservator if you fail to comply.
Consulting an attorney
Your attorney will advise you and help prepare your inventories, accountings, and petitions to the court. If you have questions, check with your attorney, not the court staff. You should cooperate with your attorney at all times. When in doubt, contact your attorney.
Duty to Disclose
If you are the spouse of the conservatee, you must disclose to the court the filing of any action or proceeding against the conservatee for (1) legal separation, (2) dissolution of marriage, (3) annulment, or (4) adjudication of nullity of marriage. The disclosure must be made within 10 days of the initial filing of the action or proceeding by filing a notice with the court and serving notice according the Probate Code.
Limited Conservator (For the Developmentally Disabled Only)
Authority Specified in Your Letters
If the court appoints you as limited conservator, you will have authority to take care of only those aspects of the conservatee's life and financial affairs specified in your Letters of Conservatorship and the court's order appointing you. The conservatee retains all other legal and civil rights. Although most of the information provided in this form also applies to limited conservatorships (especially the duties of the conservator of the person), you should clarify with your attorney exactly which information applies in your case.
Duty to Help Conservatee Develop Self-Reliance
You must secure treatment, services, and opportunities that will assist the limited conservatee to develop maximum self-reliance and independence. This assistance may include training, education, medical and psychological services, social opportunities, vocational opportunities, and other appropriate help.
Temporary Conservator
If the court appoints you as temporary conservator, you will generally have the same duties and authority as general conservators except the conservatorship will end on the date specified in your Letters of Temporary Conservatorship. You must consult with your attorney about which duties you will not perform because of the limited time. A temporary conservator should avoid making long-term decisions or changes that could safely wait until a general conservator is appointed. As temporary conservator, you may not move a conservatee from his or her home or sell or give away the conservatee's home or any other assets without court approval.
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