What are they and why would I need one?
Generally speaking, a Guardianship and a Conservatorship is a court process used to establish legal authority for an individual to be responsible for the care and support of another. There are various reasons why someone might need a guardianship or a conservatorship. In California, a “guardianship” refers to the situation where the person needing the care and support is a minor. A “conservatorship” refers to the situation where the person needing the care and support is an adult who is incapacitated or incompetent.
In California you can have a “guardianship of the person”, which gives the guardian the responsibility to care for a minor child, or a “guardianship of the estate” which gives the authority and responsibility of handling the minor’s financial affairs. A guardianship also can be for both the person and the estate.
A conservatorship in California can be limited or general. A “limited conservatorship” is typically when the person needing assistance is a developmentally disabled adult, and the conservatorship is limited in order to allow the disabled person as independent a life as possible. A general conservatorship is typically for any other adult who is suffering from a physical injury, advanced age, dementia, or any other condition preventing them from being able to care for themselves.
In many other states, the guardian and conservator terminology are different and can lead to some confusion. Guardianship in many states refers only to a situation in which the “Guardian” is given the authority and responsibility to care for another person, the “ward.” There is commonly no distinction as to whether the ward is a minor or an adult. Also, in may other states, a conservatorship refers to those situations that require a person, the “conservator,” to handle the financial affairs of another, the “conservatee”. Other than clarifying this terminology, this article refers to guardianship and conservatorship in California.
What are the duties involved?
As a guardian, you are required to assume many important duties and obligations. A legal guardian is typically given control over a minor, meaning custody and control over the minor as well as a fiduciary duty to provide for the best interests of the minor, such as providing education and healthcare. The guardian also is liable for the actions of the minor, just as their parents would be.
As a conservator, you also owe a duty to act in the best interests of the conservatee, but the specific duties can vary depending on the needs of the conservatee. A conservator may assist with handling things like health care, meals, clothing, personal care, housekeeping, transportation, and anything else the conservatee may require.
Process and cost?
The initial filing in San Diego county is $435 to petition the court to appoint a guardian or conservator. Attorney fees can be anywhere from $2,000 and up for an uncontested guardianship or conservatorship and will be higher if the petition is contested. An investigation is typically required by the court to provide a report regarding the circumstances of the guardianship or conservatorship and usually ranges from $800 to $1500. The Regional Center will submit a report if the case involves a limited conservatorship of the person. Some proceedings require appointment of a court appointed attorney or guardian ad litem, which incurs additional costs. A physician may also be required to provide a report as well for another $200 to $500. As you can see, the cost is likely around $5,000 for an uncontested proceeding when you are represented by an attorney.
Once you have finished the process to appoint a guardian or conservator, there may be other costs and fees as the guardianship or conservatorship proceeds. If the guardian or conservator controls the estate, they will be required to provide an initial inventory of the estate followed by periodic accountings. The guardian or conservator usually enlists help to complete these accountings, requiring accountant or attorney fees. The guardian or conservator also is usually entitled to reasonable payment for their time and effort.
There are legal aid services available to those without the financial ability to cover the attorney costs, and fee waivers available to waive court filing and investigation costs. However, even when costs are minimal, the process and the duties of a guardian will require long hours and dealing with the courts.
What are the alternatives?
Powers of attorney can appoint someone you trust to make medical and financial decisions for you if you become disabled or incapacitated. There is a form called a Caregiver’s Authorization Affidavit, which authorizes a person to enroll a minor in school and authorize medical care. A child may have an individualized education plan (IEP) to develop a specialized plan to assist a child with a disability in participating and advancing in school. An adult may have an individual program plan (IPP), a process that puts together a team to assist an individual with meeting their needs when dealing with a disability. Advance planning can save time, cost, and effort in dealing with a future disability or if someone becomes incapacitated.
If a person needs help managing their estate or money, a special needs trust can be created in order to allow a person designated as trustee to help manage the money without intervention required by the courts. Something as simple as maintaining a joint bank account may provide the most efficient means to assist in managing money. If the individual needing help receives social security benefits, another adult can be designated as the social security representative payee.
Depending on the situation there are various programs and plans to help those with a disability to meet their needs and get the help they need to live as independently as possible. San Diego County, and most if not all counties in California, provide resources specific to the needs of anyone requiring a guardianship or conservatorship.
Our Trusts and Estates team can advise you about guardianships, conservatorships, and limited conservatorships and represent you if a petition for guardianship or conservatorship is the best option for your situation. To schedule an initial consultation with an attorney at our firm, please contact us.