Can a Conservator in California Draft a Will or Trust for an Incapacitated Person?

In California, the role of a conservator is to manage the personal and financial affairs of an incapacitated person, known as the conservatee. However, a common question arises: Can a conservator draft a will or a trust for an incapacitated person? The straightforward answer is no.

Understanding the Role of a Conservator
A conservator is appointed by the court to ensure that the conservatee’s needs are met, which includes managing their finances, healthcare decisions, and daily living arrangements. While a conservator has significant responsibilities, they do not have the legal authority to create or change estate planning documents, such as wills or trusts, on behalf of the conservatee.

The Importance of Legal Capacity
Creating a will or trust requires the individual to have legal capacity. This means they must understand the nature and consequences of the document they are signing. If a person is deemed incapacitated, they lack this capacity, which is why a conservator cannot unilaterally draft these important documents.

Seeking Court Approval
In certain situations, a conservator may need to take action regarding estate planning for the conservatee. In such cases, the conservator can file a substituted judgment petition with the court. This petition allows the conservator to seek the court's permission to make specific estate planning decisions, such as modifying an existing trust or creating a new one. The court will carefully evaluate whether the proposed action is in the conservatee's best interests and if it aligns with what the conservatee would have wanted if they had the capacity.

Conclusion
To summarize, a conservator in California cannot independently draft a will or trust for an incapacitated person. Any significant changes to estate planning must go through a court process, ensuring that the rights and interests of the conservatee are protected. If you find yourself in a situation where you need to make estate planning decisions for someone under conservatorship, it's crucial to consult with an experienced attorney who can guide you through the legal requirements and processes involved.
​
If you have further questions about conservatorships or estate planning, feel free to reach out for assistance!