A conservatorship occurs when a person or organization is authorized to care for the finances, health and assets of another person who is deemed partially or completely unable to take care of such needs. In California, a conservatorship is established through a court proceeding. In some areas, a conservatorship is called a “guardianship of the estate.”
When a Conservatorship is Necessary
A court-appointed conservatorship may be required when a person has mental or physical problems that impede his or her ability to manage financial affairs, health and assets. In order for the court to appoint a legal guardian or conservator, the impaired individual would also lack any person who is legally sanctioned to assume responsibility for his or her care. Additionally, it would have to be found that the disabled person would be inadequately protected by other means of assistance with regards to financial management.
The Process for Appointing a Conservator
The exact procedure for appointing a conservator will differ from one area to another, but the usual process is as follows:
The individual or organization that wishes to be appointed as conservator files a petition with the local probate court. The petition is often filed by a relative, a close friend, or an administrator for a health care facility or nursing home. Along with the petition, medical affidavits and/or other sworn statements are typically submitted testifying to the person’s disability, and identifying the individual or organization wanting to be named as conservator. The documents may simply ask for a conservator to be appointed.
The probate court then arranges for an evaluation of the disabled person. This evaluation often involves a court-appointed “guardian ad litern” who gives a report to the court on behalf of the disabled person. This guardian will educate the disabled person concerning the person’s legal rights and inform the court of the person’s desires. The guardian may also speak with the petitioner and other parties involved in order to give a complete report to the court. The court may also designate a doctor to examine the disabled person.
In the event the disabled person disputes the appointment of a conservator, a trial is scheduled in which the presiding judge determines if the petitioner met the required burden of proof for the designation of a conservator.
The court conducts a hearing where witnesses give sworn testimony supporting the claims of the petition, if the disabled person agrees to the appointment of a conservator or is incapable of responding to the questions because of disability.
If a conservator is designated, then the judge furnishes the conservator with legal documents, often referred to as “letters of authority.” These documents will legally allow the conservator to act in the stead of the disabled person (the conservatee).
The Conservator’s Responsibilities
The conservator’s primary duty is to make an account of the disabled person’s health care, food, shelter and assets. The conservator is required to keep track of all expenditures and assets for the estate of the disabled person. These numbers usually have to be reported to the court on a yearly basis (in some cases, more frequently).
If the conservatee has assets that may assist in the individual’s care, the conservator may request permission from the court to rent or sell these assets. For example, if the conservatee has a home, the conservator can request permission to sell or rent the home, depending upon whether or not the conservatee will be able to return to the home or if the conservatee needs money for their health care.