Persons with disabilities, their families, and professionals are often interested in conservatorships: What are they and how do they work?
The following is a general guide to conservatorships in an easy to use question and answer format.
What is a conservatorship?
A conservatorship is a legal proceeding where one person or entity, called the “conservator” is appointed by a judge to manage the affairs of another person called the “conservatee”. A judge will consider appointing a conservator where there is strong evidence that t he conservatee is incapable of providing for his/her own basic needs. In this situation, the conservator will be referred to as the conservator of the person. If the conservatee cannot manage his/her financial affairs, the conservator will be referred to as the conservator of the estate. There can be a conservator of just the person or estate or both.
Who generally becomes a conservator?
The law prefers that a family member of the individual be appointed conservator and has a list of preferences based on the relationship to the conservatee. Additionally, the court can appoint non-relatives, professional conservators, government agencies and nonprofit corporations.
How is a conservatorship started?
The filing of a petition and other required forms with the Superior Court starts a conservatorship. A court hearing date will be set approximately four weeks after the filing of the petition.
Are there different types of conservatorships?
Yes. The type of conservatorship generally depends on the physical and mental condition of the conservatee
A general conservatorship applies to all incapacitated persons who are not developmentally disabled. For example, this type of conservatorship would be available to assist an elderly person with Alzheimer’s.
If the proposed conservatee were developmentally disabled, a limited conservatorship would apply. A limited conservatorship gives the conservator only certain specified powers, and allows the conservatee to retain rights that he/she is able to exercise. In this kind of conservatorship, the regional center will receive notice of the petition and will file an advisory report with the court on the appropriateness of the conservatorship.
If the proposed conservatee is a person who is gravely disable due to a mental disorder or chronic alcoholism, a Lanterman-Petris-Short Conservatorship would apply. This kind of conservatorship is commonly referred to as an LPS conservatorship. Usually an LPS conservatorship may only be initiated for patients in a mental health facility on the recommendation of the facility’s staff.
What types of powers will a conservator have?
Depending on the type of conservatorship, a conservator may have the following powers, including but not limited to: determining the residence of the conservatee, consenting or withholding consent to medical treatment on behalf of the conservatee, access to confidential records of the conservatee, to contract, and investing the funds of the conservatee.
How long does a conservatorship last?
A general conservatorship terminates on the conservatee’s death or upon a court order. A limited conservator terminates not only by the death of the limited conservatee, or by court order, but also by the death of the limited conservator. An LPS conservatorship terminates automatically after one year or upon the death of the conservatee or court order. It can, however, be re-established for additional one year periods.
Will a proposed conservatee be notified of a petition for conservatorship?
Yes. A proposed conservatee must be notified of a petition and his/her right to attend the hearing and oppose the petition. Also, the proposed conservatee must be notified of the right to an attorney. In a limited and LPS conservatorship the conservatee has an automatic right to an attorney paid for by the county if the person cannot afford to pay. In a general conservatorship, the conservatee can retain his/her own attorney or request the court to appoint an attorney if he/she has limited funds.
In conservatorships, an employee of the court, called a “court investigator” will interview the proposed conservatee and make a report to the court on the appropriateness of the conservatorship. (A different investigation is performed for LPS conservatorships.)
How often are conservatorships reviewed?
An LPS conservatorship must be renewed annually and this requires a new petition each year. The court reviews a limited conservatorship and general conservatorship one year from establishment and every two years thereafter. Generally, no court hearing is required unless requested by someone. A conservator of the estate must file periodic accountings with the court.
What are the responsibilities of a conservator?
A conservator is a “fiduciary”, meaning that the conservator must take actions only in the best interest of the conservatee and must act in good faith and with the utmost loyalty and concern for the conservatee. In making decisions the conservator must attempt to have the conservatee live in the least restrictive environment and to the maximum extent possible take into account the personal wishes of the conservatee. The conservator must appropriately exercise those powers granted by the court.
A conservator will generally have no personal financial responsibility for payment of the conservatee’s bills. A conservator will be expected to act reasonably in making decisions and managing the conservatee’s funds, and if negligent in do so, may face liability. At all times, a conservator’s action is subject to court supervision.
Are there actions a conservator cannot take?
Yes. No conservator can consent to the sterilization of the conservatee unless a separate special court order grants that authority. A conservator cannot place the conservatee involuntarily in a locked mental health facility or a state developmental center unless there is a specific court order authorizing such placement. This authority can be included in the order appointing an LPS conservator. The conservator cannot consent to the use of experimental drugs or convulsive therapy with some exceptions for LPS conservators.