What is a Conservatorship?


Conservatorship Law in California

A conservatorship is a legal arrangement meant to protect an adult who cannot care for their own person or property. The petitioner asks the court to appoint a conservator to make decisions for the conservatee (the adult that cannot care for themselves).

The conservator owes a fiduciary duty to the conservatee.

Importantly, the court will retain jurisdiction over the conservatorship and will periodically review of the conservator’s actions until the conservatorship is terminated.

When does a Conservatorship Terminate?

A conservatorship is terminated on:

  1. the death of the conservatee;
  2. the relation of the conservatee to a new state of residence;
  3. a change in conservatee’s situation making the conservatorship no longer reasonably necessary

Types of Conservatorships

There can be a conservatorship of the person, the estate, or both. California Probate Code §1800.3(a)(1).

If a court chooses to establish both a conservatorship of the person and the estate, the court can appoint separate conservators or one person to serve as both the conservator of the estate and the conservator of the person.

Conservatorship of the Person

In a conservatorship of the person, the conservator manages the personal care of the conservatee who cannot provide for their own needs. this includes physical health, medical care, food, shelter, etc. California Probate Code §1801(a).

The conservator controls 1) the location of the conservatees residence and type of residence; 2) medications and medical treatments etc.

Limitations on Conservatorships

A conservator must select the “least restrictive” available residence most suitable for the needs of the conservatee. California Probate Code  §2352.

Further, Conservators may not control a conservatee’s rights to have visitors, get phone calls, mail, or other personal rights unless there is a court order. California Probate Code §2351(a).

Conservatorship of the Estate

A conservator of the estate manages the financial affairs of another person who cannot manage on their own. California Probate Code §1801(b).

The conservator is tasked with conserving, managing, and using the conservatee’s assets for the benefit of the conservatee.

General Conservatorship v. Limited Conservatorship

In a general conservatorship, the conservator has full authority over the conservatee’s finances, physical autonomy, and other significant decisions.

In a limited conservatorship, the conservator has authority over some specific aspects of the conservatee’s life–this is often the case when the conservatee is a mentally disabled adult and allows their guardian to continue to care for them while the conservatee gets the greatest degree of autonomy possible. California Probate Code §2351.5.

What is the Effect of a Conservatorship?

Establishing a conservatorship shifts the responsibility for making financial and personal care decisions from the conservatee to the conservator.  California Probate Code §2101.

In a proceeding for a conservatorship of the estate, the conservatee is presumed to lack capacity to contract; to sell, transfer, or convey property; to make gifts; to incur debts (except in limited circumstances); to delegate powers; to waive any rights; or to serve as a fiduciary. California Probate Code §§1870, 1872.

In a proceeding for a conservatorship of the person, the conservator has the “care, custody and control” of the conservatee, including the power to determine where the conservatee will live. California Probate Code §§23512352. The conservatee, however, is presumed to have the capacity to make medical decisions. California Probate Code §2354.

The court may only appoint a conservator when there is clear and convincing evidence of the conservatee’s need for such protection. California Probate Code §1801(e).

 Once established, the conservatorship remains within the court’s jurisdiction for the remainder of the conservatee’s life, or until the conservatorship is otherwise terminated.

The court must review the conservatorship periodically to ensure protection of the best interests of the conservatee. As part of the court’s review, a court investigator (California Probate Code §1454) reports to the court periodically. After six months an investigator reports on whether the conservatorship is appropriate. One year after appointment, and annually thereafter, the investigator files subsequent reports. California Probate Code §§1800(e), 1826, 1850.

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About Ferdeza Zekiri

Ferdeza Zekiri is an attorney at Talkov Law in San Diego. The focus of her practice is real estate law and trusts, probate & estate law in California. She can be reached at (858) 800-3300 or ferdeza@talkovlaw.com

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