General Conservatorships

Every adult is assumed to be capable of making his or her own decisions unless a court determines otherwise. If an adult becomes incapable of making responsible decisions due to a mental disability, the court will appoint a substitute decision maker, or conservator. Conservatorship is a legal relationship between a competent adult (the "conservator") and a person who because of incapacity is no longer able to take care of his or her own affairs (the "conservatee").

The conservator can be authorized to make legal, financial, and health care decisions for the conservatee. Depending on the terms of the conservatorship, the conservator may or may not have to seek court approval for various decisions. Placing a Conservatee in a secured perimeter facility and the use of psycotropic medications require specific court orders.
A person is adjudged to be in need of conservatorship when he or she shows a lack of capacity to make responsible decisions, as determined by his or her doctor. A person cannot be declared incompetent simply because he or she makes irresponsible or foolish decisions, but only if the person is shown to lack the capacity to make sound decisions. For example, a person may not be declared incompetent simply because he or she spends money in ways that seem odd to someone else. Also, a developmental disability or mental illness is not, by itself, enough to declare a person incompetent.

Alternatives to Conservatorship:.

Because conservatorship involves a profound loss of freedom and dignity, state law requires that conservatorship be imposed only when less restrictive alternatives have been tried and proven to be ineffective. Less restrictive alternatives that should be considered before pursuing conservatorship include:

  1. Power of Attorney. A power of attorney is the grant of legal rights and powers by a person (the principal) to another (the agent or attorney-in-fact). The attorney-in-fact, in effect, stands in the shoes of the principal and acts for him or her on financial, business or other matters. In most cases, even when the power of attorney is immediately effective, the principal does not intend for it to be used unless and until he or she becomes incapacitated.
  2. Representative or Protective Payee. This is a person appointed to manage Social Security, Veterans' Administration, welfare or other state or federal benefits or entitlement program payments on behalf of an individual.
  3. Revocable trust. A revocable or "living" trust can be set up to hold an older person's assets, with a relative, friend or financial institution serving as trustee. Alternatively, the older person can be a co-trustee of the trust with another individual who will take over the duties of trustee should the older person become incapacitated.

In California, any family member or friend of the Conservatee can file a Petition with the court to be appointed as Conservator. An attorney is usually retained to file a petition for a hearing in the probate court in the proposed Conservatee's county of residence. Protections for the proposed Conservatee include requiring that notice of the proceeding be provided to all second degree relatives and the Conservatee. The proposed Conservatee is usually appointed legal representation to represent them before the court and to protect their rights.
At the hearing, the court attempts to determine if the proposed Conservatee is incapacitated and, if so, to what extent the individual requires assistance. If the court determines that the proposed Conservatee is indeed incapacitated, the court then decides if the person seeking the role of Conservator is the appropriate choice.
A Conservator can be any competent adult -- the Conservatee's spouse, another family member, a friend, a neighbor, or a professional conservator (an unrelated person who has received special training).
If a person is found to be incapacitated and a suitable Conservator cannot be found, the court can appoint a public guardian, a publicly financed agency that serves this purpose. In naming someone to serve as a Conservator, courts give first consideration to those who play a significant role in the Conservatee's life -- people who are both aware of and sensitive to the Conservatee's needs and preferences. If two or three individuals wish to share Conservatorship duties, courts can name co-conservators.
The Conservator of the estate inventories the Conservatee's property, invests the Conservatee's funds so that they can be used for the Conservatee's support, and files regular, detailed accountings with the court . A Conservator of the estate also must obtain court approval for certain financial transactions.