Conservatorships and Guardianship are very similar and are both handled in the California Probate Court before a Probate Judge. Conservatorships are for adults and Guardianships are for minors.
1. Probate Conservatorships
These conservatorships are based on the laws in the California Probate Code. They are the most common type of conservatorship. Probate conservatorships can be:
When a conservatorship is needed right away, the court may appoint a temporary conservator until a general conservator can be appointed. The request must be filed as part of a general conservatorship case, and can be filed either at the same time or soon after the general conservatorship case is opened with the court. The main duties of a temporary conservator are arranging for the temporary care, protection, and support of the conservatee, and protecting the conservatee’s finances and property.
2. Lanterman-Petris-Short (LPS) Conservatorships
LPS conservatorships are used to care for adults with serious mental health illnesses who need special care. These conservatorships are used for people who usually need very restrictive living arrangements (like living in locked facilities) and require extensive mental health treatment (like very powerful drugs to control behavior). Conservatees in LPS conservatorships cannot or will not agree to the special living arrangements or treatment on their own. LPS conservatorships must be started by a local government agency. For LPS conservatorship you must contact Riverside Public Guardian or Adult Protective Services – A private attorney cannot initiate LPS Conservatorships.
The probate court can appoint a conservator of the person, a conservator of the estate, or both, depending on the needs of the conservatee.
Duties of a Conservator
The duties of a conservator of the person are to:
The duties of a conservator of the estate are to:
There are a number of people who can file for a conservatorship:
In appointing a conservator, the court is guided by the best interests of the conservatee. If the proposed conservatee has nominated someone (and the proposed conservatee has the mental and physical ability to express his or her preference), the court will appoint that person as conservator unless it is NOT in the proposed conservatee’s best interests.
If the proposed conservatee has not or cannot nominate anyone, the law provides a list of preferences that the court generally follows when the court determines whether all these persons are qualified to serve as a conservator.
The order of preference is:
If the person closest to the top of the list does not want to be conservator, he or she can nominate someone else.
In the end, regardless of this order of preference, the selection of the conservator is up to the judge, and the judge makes this decision by considering the best interests of the proposed conservatee.
If you know someone who needs help and probably needs a conservator, but there is no suitable family friend or relative that can be the conservator, do some research to find a private professional fiduciary to act as conservator. Professional fiduciaries charge fees, but the court must approve in advance all fees paid by the person to be helped.
Alternatives to a Conservatorship
You must be sure that establishing a conservatorship is the only way to meet the person’s needs. If there is another way, an alternative to the conservatorship, the court may not grant your petition.
You may not need a conservatorship if the person who needs help:
The Conservatorship Court Process
Setting up a conservatorship is a long and complex process. Before asking the court to appoint a conservator, the person asking for the conservatorship should be sure this is an appropriate arrangement for the proposed conservatee.
If a judge grants the conservatorship
The conservator must purchase a copy of the Handbook for Conservators from the court or download it at the link provided.
He or she can then assume the powers authorized under the law. Also, the conservator of the person, conservator of the estate, and limited conservator of the estate must attend the training for conservators offered by the court. Each conservator will have the ongoing duty to report to the court for regular reviews and to meet with the court investigator.
The court investigator gives neutral information about the case to the judge.
The investigator will call the proposed conservator and set up a visit with him or her and the proposed conservatee. Sometimes, he or she will meet with both more than once. The investigator must also interview relatives of the proposed conservatee.
The court wants the investigator to:
Once a conservator is appointed, the court investigator stays involved. Six months after the appointment, the investigator will review the case to make sure the conservator is fulfilling his or her responsibilities as conservator and that the conservatee’s rights are being upheld. The investigator will review the case again in another 6 months and at the end of each 12-month period after that.
If the investigator thinks the conservator is acting in the best interests of the conservatee and the court agrees, the court can reduce the scope of the reports the investigator must write and file in later reviews, but the investigator must make a personal visit and interview the conservatee and must prepare and file at least a short status report every year after the first year. The court may order additional reviews as necessary or helpful to protect the conservatee.
If the investigator thinks there may be a problem after one of these reviews, he or she may ask the judge to appoint a lawyer for the conservatee. This may start the legal process to sanction or remove the conservator and either appoint someone else as successor conservator or end the conservatorship.
The investigator will also visit the conservatee and make a report if:
The court investigator will explain these situations to the conservatee. He or she will then make recommendations to the court in a written report that will also be mailed to the conservator, the conservatee’s attorney, and his or her spouse or domestic partner and other close relatives.
A judge may appoint a temporary conservator to take care of a conservatee’s more immediate needs that cannot wait until a general conservator is appointed. A temporary conservator may also be appointed by the court to fill in temporarily in between permanent conservatorships, for example, if one conservator is removed and a new one has not yet been appointed.
Temporary conservatorships have a specific end date. A temporary conservator is usually appointed for a fixed time period, usually 30 to 60 days. These conservatorships can be of the person, of the estate, or both. The main role of the temporary conservator is to ensure the temporary care, protection, and support of the conservatee. And the temporary conservator of the estate protects the conservatee’s finances and property from any loss or damage until a general conservator can take over the management of the estate.
A temporary conservator cannot, without the judge’s prior approval:
To ask for the appointment of a temporary conservator, the request must be made as part of a general conservatorship court case.
A conservatorship is usually a permanent arrangement. But, in certain cases, a conservatorship may be ended or the conservator may be changed.
When a conservator is removed or resigns, or the conservatorship ends, the conservator will be released from his or her duties, but only after he or she wraps things up and provides the court the needed information or documents to either transfer the case to a new conservator or end the conservatorship. For conservatorships of the estate, the conservator will have to turn in a final accounting.
In California, people with developmental disabilities have a right to services they need to live independent, productive, normal lives. The state must provide services for each person with a developmental disability at each stage of his or her life, regardless of age or the degree of the disability. These state services are provided through the regional centers, which are nonprofit corporations that have contracts with the California Department of Developmental Services to serve people with developmental disabilities.
The services provided through Regional Centers are available to persons with developmentally disabilities whether they are under a general conservatorship, a limited conservatorship, or no conservatorship at all.
Get more information on regional centers and the California Department of Developmental Services.
A limited conservatorship is a court case where a judge gives a responsible person (called a “limited conservator”) certain rights to care for another adult who has a developmental disability (called a “limited conservatee”).
Limited conservatorships are for adults with developmental disabilities. Developmental disability refers to a severe and chronic disability due to a mental or physical impairment that started before age 18. Limited conservatorships are set up to assist developmentally disabled adults who are unable to provide for all their personal or financial needs.
As with general conservatorships, there are two kinds of limited conservatorships:
You do not need a conservatorship of the estate if:
But you need a conservatorship of the estate if the developmentally disabled adult has other assets, such as an inheritance or a settlement from a lawsuit that is not in a special needs trust.
If a developmentally disabled minor will soon be 18, it is often a good idea to start the process of requesting a limited conservatorship a few months before the developmentally disabled person’s 18th birthday. But, keep in mind that a limited conservatorship can be established at any time after the person with the developmentally disability has reached age 18.
The Superior Court Probate Department will supervise the limited conservator. Someone from the court investigator’s office will review the case 1 year after the conservatorship is granted, then every 2 years after that. The investigator will call the conservator to update the court’s file. The investigator will also visit the conservatee.
Limited Conservator’s Duties
When someone is appointed as a limited conservator of a person who is developmentally disabled, the court can give the conservator limited responsibility for the person and their estate.
The limited conservator’s Letters of Conservatorship and the court’s order of appointment list the exact areas (powers) in which the limited conservator is authorized to act. The limited conservatee keeps all other legal and civil rights. Because developmentally disabled people can usually do many things on their own, the judge will only give the limited conservator power to do things the conservatee cannot do without help. The conservator may ask the court for the powers to:
Duty to help develop the limited conservatee’s self-reliance
Overall, a limited conservator’s responsibility is to help the limited conservatee develop maximum self-reliance and independence. A limited conservator must get treatment, services, and opportunities to help the limited conservatee become as independent as possible. This can be: