When Do You Need a Conservatorship? And What Type Should You Get?

When do you need a conservatorship? This question often arises when families face difficult situations involving loved ones who can no longer care for themselves or manage their affairs. Conservatorships in California provide legal authority for someone to assist adults who need help due to various circumstances.

Types of Conservatorships in California

General Conservatorship

A general conservatorship is needed when someone has diminished mental capacity due to medical conditions such as dementia or traumatic brain injury. This type requires a court proceeding after someone submits a petition to be appointed as the conservator.

Conservatorships are divided into two categories:

Conservatorship of the Person: Required when the proposed conservatee cannot properly provide for their personal needs, including physical health, food, clothing, or shelter.

Conservatorship of the Estate: Necessary when the proposed conservatee cannot manage their financial resources or is vulnerable to fraud or undue influence.

LPS Conservatorship

For individuals who are gravely disabled due to mental illness or chronic alcoholism, California uses a different type called an LPS Conservatorship (based on the Lanterman-Petris-Short Act). This specialized conservatorship can only be initiated through local government agencies.

In San Diego County, the Office of the Public Conservator investigates referrals for LPS conservatorships. These conservatorships grant authority to arrange restrictive living situations and extended mental health treatment when individuals cannot or will not agree to necessary care voluntarily.

Limited Conservatorship

Limited conservatorships serve young adults with permanent disabilities like cerebral palsy or autism that developed before reaching adulthood. [You can find an overview of this type of conservatorship here.]

What Are the Alternatives to General Conservatorships?

When do you need a conservatorship versus other estate planning tools? Many general conservatorships could be avoided with proper advance planning. During volunteer work with the Conservatorship Clinic, it became clear that several estate planning alternatives can eliminate the need for court intervention.

Importantly, California courts must find that no lesser alternatives exist before granting a conservatorship petition.

Advance Health Care Directive

This document designates someone to serve as your healthcare agent during incapacity, authorizing them to make medical decisions and arrange necessary care. An Advance Health Care Directive can eliminate the need for a Conservatorship of the Person.

Durable Power of Attorney

A Durable Power of Attorney allows a designated “attorney-in-fact” to manage your assets when you become incapacitated. This essential estate planning document can prevent the need for a Conservatorship of the Estate—the court-supervised alternative for managing someone’s property and affairs during incapacity.

Weighing the Pros and Cons of Conservatorships

When do you need a conservatorship despite available alternatives? Understanding the advantages and disadvantages helps determine if a conservatorship is the right solution for your specific situation. Always consult an attorney regarding your particular circumstances.

Advantages of Conservatorships

• Court supervision protects assets and provides oversight of personal care
• Clear authority with court permission required for major decisions
• Conflict resolution when family members disagree about decision-making responsibilities
• Legal protection for both the conservatee and conservator

Disadvantages of Conservatorships

• Delays in relief due to court hearings scheduled months in advance
• Significant expenses including:
  • Court filing fees
  • Court investigator fees (unless fee waiver applies)
  • Bond premiums for Estate conservatorships
  • Attorney fees (unless self-represented)
• Loss of autonomy for the conservatee
• Ongoing court supervision requirements

Emergency Situations

When facing imminent harm or urgent needs, you can request a temporary conservatorship alongside a general conservatorship petition to obtain immediate relief while awaiting the full hearing.

Do You Need Professional Help?

Conservatorships involve complex legal procedures and significant consequences for all parties involved. Whether you’re considering alternatives to avoid conservatorship or need to pursue one for a loved one, professional guidance is essential.

Preventing the Need for Conservatorship

To avoid potential conservatorship proceedings due to incapacity, our estate planners at Naimish & Lewis can help you create a comprehensive estate plan including:

• Advance Health Care Directives
• Durable Powers of Attorney
• Revocable trusts
• Other incapacity planning tools

Conservatorship Representation

Our Trusts and Estates team can also advise you about general or limited conservatorships and provide representation if a conservatorship petition becomes necessary for your situation.

Next Steps

When do you need a conservatorship? The answer depends on your specific circumstances, available alternatives, and the level of care required. Don’t navigate these complex decisions alone.

To schedule an initial consultation with an experienced attorney at our firm, please contact us. We’ll help you understand your options and determine the best path forward for you and your family.