When Do You Need a Conservatorship?
There are several different types of conservatorships in California that provide legal authority for someone to assist in caring for adults who need help. A general conservatorship is needed by someone with diminished mental capacity, which may be due to a medical condition such as dementia or a traumatic brain injury. It requires a court proceeding after someone submits a petition to be appointed as the Conservator. The standard for appointment for a Conservatorship of the Person is that the proposed conservatee is unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter. The standard for appointment for a Conservatorship of the Estate is that the proposed conservatee is substantially unable to manage his or her own financial resources or resist fraud or undue influence.
To help someone who is gravely disabled because of mental illness or chronic alcoholism, a different type of conservatorship based on the Lanterman-Petris-Short Act and called a LPS conservatorship must be used. It can only be initiated through a local government agency. In San Diego County, the Office of the Public Conservator investigates referrals for these types of conservatorships. The LPS conservatorship can grant someone authority to arrange for very restrictive living arrangements and extended mental health treatment when the individual cannot or will not agree to the arrangement or treatment voluntarily.
There also is limited conservatorship for young adults who have some type of permanent disability like cerebral palsy or autism that develops before they reach adulthood. An overview of this type of conservatorship will be the topic of my next blog post.
What Are the Alternatives to a General Conservatorship?
While volunteering with the Conservatorship Clinic this past Spring, I learned that many general conservatorships could have been avoided if the individual had an estate planning alternative to conservatorship in place such as an Advance Health Care Directive, Durable Power of Attorney, or revocable trust. In fact, the Court must find that there are no lesser alternatives that can be used to take care of the person or the estate before a conservatorship petition will be granted.
The Advance Health Care Directive designates someone to serve as an individual’s healthcare agent when incapacitated and authorizes the agent to make health care decisions and to take actions necessary for the care of the person. This document can avoid the need for a court supervised Conservatorship of the Person.
The Durable Power of Attorney allows a designated agent called the “attorney-in-fact” to manage the principal’s assets when the principal is unable to do so due because of incapacity. It is strongly recommended to have this type of document as part of your estate plan because it can avoid the need for a Conservatorship of the Estate, which is the alternative legal device for management of someone’s property and personal affairs due to incapacity.
Weighing the Pros and Cons of Conservatorship
There are some advantages and disadvantages with a general conservatorship that should be considered when trying to decide whether a conservatorship is the right option for the individual who needs help. An attorney should be consulted regarding the specific factual circumstances in each case. [Disclaimer]
On the positive side, a conservatorship provides court supervision to protect assets and provide oversight of personal care. For some actions, the conservator will need to request court permission before acting. A conservatorship also can clarify who is in charge of decision-making for the incapacitated individual when there is family conflict over this role.
On the negative side, there is often delay in obtaining relief because court hearings are usually set for several months out. When there is risk of imminent harm or some other urgent need, a temporary conservatorship can be requested at the same time as the general conservatorship to obtain temporary relief. There also are expenses associated with court proceedings, including court filing fees and court investigator fees unless the proposed conservatee is eligible for a fee waiver. There also will be bond premiums for a Conservatorship of the Estate and attorney’s fees unless the petitioner is self-represented.
To avoid the potential need for conservatorship due to incapacity, our estate planners at Naimish & Lewis can assist you in creating an estate plan that includes an Advance Health Care Directive and Durable Power of Attorney. Our Trusts and Estates team also can advise you about a general or limited conservatorship and represent you if a petition for conservatorship is the best option for your situation. To schedule an initial consultation with an attorney at our firm, please contact us.