| Background | | | | comes out of the conservatee's income or other |
| Definition. A conservatorship is used in California | | | | assets. |
| where a person cannot handle their own financial | | | | Fees and Reimbursements for the Conservator. |
| matters or take care of themselves physically, so | | | | Expenses. Generally, the conservator is entitled to |
| another person is appointed by the Court to | | | | reimbursement for reasonable expenses incurred |
| handle these matters. | | | | on behalf of the conservatee, including expenses |
| Since 1981, in California a guardianship can only be | | | | to establish the conservatorship and sometimes |
| obtained for someone under the age of 18. Other | | | | money spent supporting the conservatee prior to |
| states, though, use the term "guardianship" for | | | | the conservatorship. |
| what California now calls a conservatorship. | | | | With the exception of Court filing fees and |
| Terminology. A conservatorship must be | | | | premiums on the bond, the conservator must |
| established by a court. The person needing the | | | | obtain Court approval before receiving |
| help is called the "conservatee" and the person | | | | reimbursements from the conservatee's estate. |
| who receives authority to handle financial, medical | | | | It is crucial for the conservator to keep receipts |
| and/or other matters for the person needing the | | | | and records of all expenses (and |
| help is the "conservator". | | | | reimbursements). |
| Types of Conservatorships. There are two basic | | | | The conservator is allowed to hire help as needed |
| types of conservatorships, a conservatorship of | | | | - for example, an accountant - as long as the |
| the person and a conservatorship of the estate. | | | | expense is reasonable in comparison with the size |
| Often one conservator fills both roles, but it does | | | | of the conservatee's estate. |
| not have to be that way. | | | | Generally the conservator cannot be reimbursed |
| Conservator of the Person. A conservator of the | | | | for postage, photocopies, mileage or the cost of |
| person makes sure that the conservatee has | | | | trips to court. |
| appropriate food, clothing, shelter, healthcare, | | | | Compensation for Time. |
| social contact and sources of enjoyment. | | | | It is crucial that a conservator who wishes to |
| Conservator of the Estate. A conservator of the | | | | receive compensation for his/her time keep a |
| estate handles the conservatee's finances. | | | | detailed written record of the time spent on the |
| A conservator of the estate must use the | | | | conservatorship, indicating the date, amount of |
| conservatee's money and other assets to | | | | time and the work done on an entry-by-entry |
| support (and educate, if appropriate) the | | | | basis. |
| conservatee and any dependents the | | | | Courts usually allow a family member to recovery |
| conservatee has. | | | | only for time spent on managing the finances of |
| If the appropriate court order is obtained, the | | | | the estate, and not for any time spent acting as |
| conservator can handle not only the | | | | a family member (such as visiting the |
| conservatee's personal finances but his/her | | | | conservatee) or for acting as a conservator of |
| business matters as well. | | | | the person. |
| The Process | | | | Courts may not allow compensation for time if |
| Starting the Process. A conservatorship is started | | | | little time has been spent on financial matters or if |
| by filing papers with the Probate Court and giving | | | | the conservator has not followed court |
| copies to the proposed conservatee and his/her | | | | procedures, including filing accountings on time. |
| close relatives. | | | | Some courts have schedules that set out the |
| Obviously, this can be a painful process for the | | | | compensation that a conservator may receive for |
| conservatee, who is being required to give up | | | | his/her time, often a percentage of the |
| rights to manage his/her finances, make his/her | | | | conservatee's estate. |
| own medical decisions, etc. Still, sometimes a | | | | The conservator may only petition the Court for |
| conservatorship is unavoidable. | | | | compensation for time after the later of both: |
| Court Investigator. A court investigator must talk | | | | 90 days after the Letters of Conservatorship |
| with the proposed conservatee and others who | | | | were issued; and when the Inventory and |
| may know something about the situation. | | | | Appraisal is filed. |
| The Hearing. A hearing date is scheduled and at | | | | Alternatives |
| the hearing the judge decides whether a | | | | Powers of Attorney. Unfortunately, the process |
| conservator will be appointed and, if so, who that | | | | of obtaining and maintaining a conservatorship is |
| will be. | | | | expensive, which is why we strongly urge people |
| Unless the proposed conservatee is unable to | | | | to sign powers of attorney that designate who |
| attend for medical reasons, the proposed | | | | will handle their affairs if they become |
| conservatee should be present at the hearing, as | | | | incapacitated. If the proposed conservatee is |
| the Judge will often want to question them. | | | | mentally competent, by far the best approach is |
| Note that it is possible for someone else, usually a | | | | to have him/her sign durable powers of attorney. |
| family member, to object to the proceeding or | | | | There are two types of powers of attorney. |
| propose a different conservator. | | | | Durable Power of Attorney for Finances. One |
| Inventory and Appraisal. Within 90 days of the | | | | type of power of attorney is a durable power of |
| date the Judge signs the Order Appointing | | | | attorney for finances, which designates which |
| Probate Conservator, the conservator must file a | | | | people can handle the grantor's financial affairs |
| report with the Court listing the assets that the | | | | (such as paying bills) if the grantor becomes |
| conservatee owns. | | | | incapacitated. |
| More specifically, the conservator prepares an | | | | Advance Health Care Directive. The other type is |
| Inventory and Appraisal form. If there are assets | | | | durable power of attorney for health care. In |
| other than cash, the conservator must forward | | | | California this is now known as an advance |
| the Inventory and Appraisal to the probate | | | | healthcare directive. This is designed to allow the |
| referee, who is appointed by the Court. The | | | | grantor's designated agents to make health-care |
| probate referee will appraise the non-cash items, | | | | decisions if the grantor is incapacitated. |
| complete the Inventory and Appraisal by inserting | | | | Agents. Frequently the spouse (or partner) is the |
| the value of those items, and return it to the | | | | primary agent, and then adult children or friends |
| conservator, who must file it with the Court. The | | | | are the successor agents in case the primary (or |
| probate referee usually takes four to six weeks | | | | subsequent) agent is unable (due to incapacity, |
| to return the form. | | | | etc.) or unwilling to act. |
| The estate is charged a fee for the appraisal, | | | | Medical Decisions. Often if a person is |
| generally 1/10th of 1% of the total value of the | | | | incapacitated, medical personnel will allow the |
| conservatee's estate, with a maximum fee of | | | | family members to make medical decisions if they |
| $10,000. The probate referee may also be able to | | | | are all in agreement. It is also possible to obtain |
| recover expenses, such as mileage, in addition. | | | | court authorization for specific medical procedures, |
| Court Investigations. Once a conservatorship is in | | | | but if authority is needed on an ongoing basis a |
| place, the Court conducts periodic investigations to | | | | conservatorship may be more effective. |
| confirm that the conservatorship is still needed | | | | Representative Payees. Most government |
| and that the conservatee is being treated | | | | agencies allow another person (a "representative |
| appropriately. | | | | payee") to receive checks for the beneficiary and |
| Bond and Periodic Accounting. If the conservator | | | | spend that money on the beneficiary's behalf. |
| is handling the conservatee's finances (which is | | | | Each agency has its own application procedures |
| generally the case), the conservator must post a | | | | and requirements. Many agencies require the |
| bond and must provide detailed accounts | | | | representative payee to provide them with |
| periodically to the Court that list all income and | | | | periodic accountings. |
| expenditures. | | | | Community Property. If one spouse becomes |
| Amount of Bond. The amount of the bond | | | | incapacitated, the other spouse usually can |
| depends on the assets that the conservatee has | | | | manage all of the community property that they |
| and his/her annual income, as well as whether a | | | | have. |
| professional bonding company (versus family | | | | This will not help if action needs to be taken |
| members or friends) is providing the bond. | | | | regarding any separate property the incapacitated |
| Bonding Companies. Note that most bonding | | | | spouse has. |
| companies will not issue a bond unless an attorney | | | | Also, even with community property, the spouse |
| is handling the conservatorship proceedings | | | | with capacity may not be able to roll over |
| Status Reports About the Conservatee. Often | | | | Treasury bills, sell stock, or sell or obtain loans |
| the conservator must also prepare periodic status | | | | against real property. |
| reports stating how the conservatee is faring and | | | | Again, it is possible to have the court authorize |
| what the conservator is doing in regard to his/her | | | | the spouse to make specific transactions, but it |
| duties. | | | | may be easier to obtain a conservatorship if |
| Cost. Usually the cost of the conservatorship | | | | ongoing authority is needed. |