If you have a loved one that is incapacitated because of a medical condition such as dementia or Alzheimer’s, as well as a sudden incapacitation due to trauma or a brain injury, a conservatorship could offer the right solution that could help you care for your loved one. By seeking a conservatorship, a person can be appointed as the conservator of another adult, referred to as a conservatee, by a court. Before filing for the conservatorship in California, it is important to understand important factors that are involved with seeking conservatorship.
Two Types of Conservatorships
Generally, there are two different types of conservatorships. These are:
- Conservator of the Estate
By filing this type of conservatorship, a conservator will have the ability to make any property, financial, or personal decisions in representation of the conservatee. The court will likely order a detailed account of how the assets are allocated in this time period. It should be noted that even if a conservator can control the conservatee’s finances, the conservatee reserves the right to establish a Will for his or her assets.
- A Conservator of the Person
By requesting a conservatorship of the person, the conservator will have the ability to make any health care decisions for the conservatee. Further, they are typically permitted to act on their behalf in many other capacities not directly involving finances or their property such as enrolling them in health programs, and other social services.
In California, petitioners can ask for conservatorship of the person, or the estate, or both. The process, costs, timeline and other requirements are mostly the same, but for each variation there could be specific documents and other procedures that differ.
In emergency situations, a person may be able to pursue an emergency conservatorship. Upon approval, this conservatorship will last until a permanent conservatorship has been set.
3. Who Can File for a Conservatorship
Any individual who is interested in becoming a person’s appointed conservator can petition for it. Generally, preference will be given to those who are closest to the individual such as:
- The conservatee’s domestic partner or spouse,
- Child that is over the age of 18,
- Parent, or
A Public Guardian can serve as conservator if this has been ordered by the court. This could happen if any of the following parties have made a referral:
- A relative of the conservatee,
- A neighbor of the conservatee,
- A police officer,
- A neighbor of the conservatee,
- Adult Protective Services,
- The court, or
- Any other interested party
The Court Investigator
When a person petitions to be a conservator, the court will assign a court investigator for the case. The investigator’s main role is to provide information to the judge about the case. In many cases, the court investigator will meet with the petitioner and conservatee before the petitioner is permanently assigned to be conservator.
The following are other important tasks the court will assign an investigator to accomplish:
- Interview the proposed conservatee and explain to him or her how a conservatorship will change his or her life.
- Outline the responsibilities associated with the conservatorship.
- Explain to the conservatee what is expected at the hearing.
- Outline the conservatee’s right to contest conservatorship, obtain the support of a qualified attorney.
- In the event that the conservatee cannot understand the process or cannot give his or her opinion on the conservatorship, the court investigator reserves the right to choose if an attorney should be appointed to represent him or her.
- The court investigator is tasked with writing a confidential report for the court and send a copy of the report to the petitioning conservator and his or her lawyer.
- The court investigator will also be able to make any recommendations about the case to the overseeing judge.
A court investigator may stay in touch with the conservatee even after the conservator has been permanently assigned. The amount of time a court investigator can remain involved in a case will depend on the investigator’s findings and the direction of the court.
A court investigator is assigned to a case to help ensure that the conservator is fulfilling his or her responsibilities and that the rights of the conservatee are being upheld. If a court investigator finds an issue in the case, he or she can ask the court to appoint an attorney for the conservatee. In many cases, a court appointed attorney for the conservatee is common.
The Steps to Establishing Conservatorship
When a person wishes to establish conservatorship, a series of important steps must first be met. The following is an abbreviated list of steps petitioners should expect.
Paperwork for conservatorship is voluminous and the process can quickly become exhaustive. A petitioner can obtain copies of the forms by visiting a Self-Help Center or by visiting the Judicial Council webpage. However after that it is up to the petitioner to ensure all forms are completed accurately and in their entirety. Professional conservatorship document preparation services may be a good option for this portion of the case.
Other forms that may need to be filed depending on the specific circumstances of the parties involved. For instance, individuals seeking to obtain a court fee waiver will need to file the appropriate form. When it comes to filling out forms, petitioners should make sure that all documents are completely filled out. Failing to sign or date a document can add continued court dates and a prolonged application process.
In order to fill out all of the necessary documentation, petitioners will need the following information regarding the conservatee:
- His or her full name,
- Date of birth,
- Social security number,
- Name and contact information of his or her physician, and
- His or her medical record number
When seeking to petitioner for a conservatorship of the person, the petitioner will need to describe the conservatee’s physical and mental health and explain why the conservatorship is needed. Those seeking a conservatorship of the estate will need to explain why the conservatee will not be able to manage his or her finances. The conservatee’s property and assets should be listed in this description.
Filing the Forms
Before filing the forms, two copies should be made of all documents. The petitioner will then need to take the forms to the Probate Clerk’s Office where the clerk will stamp the documents and send one copy to the Court Investigation Unit. It should be noted that there are fees associated with this process. For more information about required fees, petitioners can refer to the Superior Court of California Statewide Civil Fee Schedule. It is also important to note that these fees are a baseline, and certain Counties may have additional or higher fees. Upon filing most courts will take a filing fee, a court reporter fee, the investigation fee and if a request for emergency hearing is filed, there may be fees for that as well.
Serving the Forms
It is important that petitioners provide a notice by mail to relatives of the conservatee including:
- His or her spouse,
- Adult children,
- Siblings, or
Notice should be given at least fifteen (15) days before the date of the hearing. Proof of this service needs to be completed and filed on the state’s Notice of Hearing form. Further, the proposed conservatee must also be served. The service for them is personal and the proof of their service is documented on the “Citation” form.
Attending the Hearing
Petitioners should allow enough time before the start of the hearing to go through security screening as well as locate the courtroom. If the judge has approved the conservatorship, the court clerk will provide the conservator a signed order. The order should then be submitted to the Probate Clerk’s Office that will then provide the conservator with a copy.
Obtain the Legal Support of a Qualified Legal Advocate
The rules and responsibilities for conservatorships are complex and they can vary from county to county. Before attempting to establish conservatorship, petitioners should seek legal guidance of a qualified legal advocate or attorney.
An important portion of Just Document Preparation’s services focuses on the intricacies of conservatorships. If you or someone you know is in need of legal support involving these issues, consider seeking the support of a dedicated advocate today.