Conservatorships and why Estate Planning Matters

It is difficult to acknowledge the reality, but our loved ones do sometimes get sick, get into accidents, have unexpected medical issues, get injured, lose mental capacity, or even go missing. In legal words, there is a general term for this, called the "incapacity." While individual is present and has "capacity" they should execute a Power of Attorney and a Advance Healthcare Directive nominating the desired individuals to make financial and healthcare decisions for them during their potential incapacity. If they forget or avoid executing these documents, their spouse, children, or family members might have no other choice but to file a petition through the Court to establish a Conservatorship over the individual. This is why these documents are always included in our Estate Planning Packages, they avoid the need down the line having to go through costly and lengthy Court procedures, as explained below.

A conservatorship in California is a legal arrangement where a court appoints a responsible person or organization (the conservator) to manage the personal and/or financial affairs of another individual (the conservatee) who is unable to do so themselves due to physical or mental limitations. Conservatorships are typically established to protect the interests of individuals who are unable to make decisions or care for themselves due to conditions such as dementia, developmental disabilities, mental illness, or other incapacitating factors.
There are two main types of conservatorships in California:

1. Conservatorship of the Person: In this type of conservatorship, the appointed conservator is responsible for making decisions related to the conservatee's personal care, including medical treatment, housing, and daily living arrangements.
2. Conservatorship of the Estate: This type of conservatorship involves the conservator taking control of the conservatee's financial matters, such as managing their assets, paying bills, and making financial decisions on their behalf.

The process of establishing a conservatorship in California typically involves the following steps:

1. Filing a Petition: A concerned individual, such as a family member or friend, files a petition with the court to establish a conservatorship. The petition outlines the reasons why a conservatorship is necessary and provides information about the proposed conservator and conservatee.
2. Investigation: The court will conduct an investigation to determine whether a conservatorship is indeed necessary and whether the proposed conservator is suitable for the role.
3. Court Hearing: A hearing is held to review the petition and evidence. The conservatee has the right to legal representation and may contest the conservatorship.
4. Appointment of Conservator: If the court approves the conservatorship, it will issue an order appointing a conservator of the person, the estate, or both, depending on the circumstances.
5. Reporting and Supervision: The conservator is required to provide regular reports to the court detailing their actions and decisions on behalf of the conservatee. The court may also provide ongoing oversight.

​It's important to note that conservatorships are intended to be a last resort when there are no less restrictive alternatives available to meet the needs of the conservatee. Additionally, they can be temporary or permanent, depending on the individual's circumstances and the court's findings.

Conservatorships have gained significant public attention and scrutiny in recent years, particularly in high-profile cases. In 2021, California passed legislation aimed at increasing transparency and accountability in conservatorship proceedings, particularly in cases involving adults under conservatorship. Legal requirements and procedures may evolve over time, so it's advisable to consult with an attorney or legal expert for the most up-to-date information on conservatorships in California.