What is a conservatorship?
A conservatorship is a court proceeding where a judge appoints a person or organization (the “conservator”) to care for an impaired adult (the “conservatee”), who is either physically or mentally unable to care for himself or herself or manage his or her own financial affairs.
Several different people can file for a conservatorship, including the spouse or domestic partner of the conservatee, relative of the conservatee, state or local entity or agency, or any other interested person or friend of the conservatee. The court must appoint a conservator who will serve the best interests of the conservatee.
Types of Conservatorships
There are two types of conservatorships available in California.
A probate conservatorship is based on the laws in the California Probate Code, and can be categorized as either limited or general.
- A limited conservatorship is for adults with developmental disabilities who cannot fully care for themselves or their finances. Conservatees in limited conservatorships do not need the higher level of care or help that conservatees in general conservatorships need. This is intended for the conservatee to live as independently as possible.
- A general conservatorship is for adults who, due to physical injury, advanced age, dementia, or other conditions, cannot take care of themselves or their finances. This may also be appropriate for adults who may be more susceptible to undue influence.
When a conservatorship is needed right away, the court may appoint a temporary conservator until a general conservator can be appointed. The duties of a temporary conservator are arranging for the temporary care, protection, and support of the conservatee, and protecting the conservatee’s finances and property. The request must be filed as part of a general conservatorship case.
Lanterman-Petris-Short (LPS) Conservatorships are used to care for adults with serious mental health illnesses who need special care, very restrictive living arrangements, and require extensive mental health treatment. LPS conservatorships must be started by a local government agency.
Types of Probate Conservators
The probate court can appoint a conservator of the person, a conservator of the estate, or both.
A conservator of the person cares for, and protects, the conservatee when the judge decides that the conservatee cannot do it, which includes ensuring that the conservatee has food, clothing, shelter, and health care. This may include deciding where the conservatee resides, performing personal care and housekeeping duties, providing transportation, and ensuring well-being.
A conservator of the estate handles the conservatee’s financial matters, including locating and taking control over the conservatee’s finances and assets, collecting the conservatee’s income, making a budget to determine what the conservatee can afford, paying bills, investing the conservatee’s money, and protecting the conservatee’s assets.
Termination of a Conservatorship
A conservatorship is usually a permanent arrangement, and typically terminates when the conservatee passes away, but in certain cases, it may end if the conservatee regains the ability to handle his or her own personal and financial affairs.
Alternatives to a Conservatorship
There are several alternatives to a conservatorship, since establishing a conservatorship is a formal legal proceeding and involves several steps. Adults who may be concerned about future mental and physical incapacity can establish a power of attorney or a trust, in order to avoid court action. For medical and personal care decisions, options include an advanced health care directive, power of attorney, court authorization for medical treatment, or restraining order to protect against harassment. For financial decisions, options include a joint bank account, living trust, power of attorney, or a substitute payee for public benefits.
What is a Guardianship?
In comparison to a conservatorship, a guardianship pertains to minors or children. Guardianship is when a court orders someone other than the child’s parents to have custody of the child or manage the child’s property, because one or both parents cannot take care of the child due to physical or mental illness, rehab, jail, history of drugs or alcohol abuse, child abuse, or another reason they cannot take care of their child, such as death.
The court will look at what is in the best interest of the child to make sure the child is raised in a safe, stable, and loving environment.
In a guardianship, parents still have parental rights, and can ask for reasonable contact with the child. The court can end a guardianship if the parents become able to take care of the child.
Types of Guardianship
Guardianships can be temporary, permanent, or informal. Temporary Guardianship refers to formally turning over the care of a child to another adult for a specific period of time, such as if the parents are incapacitated to take care of the child temporarily, during custody disputes, or allegations of abuse. In California, temporary guardianships are initiated by filing a court petition.
Permanent Guardianship is another type of guardianship for minors in which the guardian creates a permanent family for the child, if it is in the best interests of the child. Permanent guardianship does not require the parental rights to be terminated.
In a guardianship of the person, the guardian has the same responsibilities to care for the child as a parent would, meaning they have full legal and physical custody of the child and can make all decisions about the care of the child that a parent would make. A guardian may be a relative, friend of the family, or other person suitable to raise the child. The guardian is responsible for the child’s care, including food, clothing, shelter, medical care, education, safety, protection, and emotional growth. The guardian can decide where the child lives and goes to school. The guardian is also responsible for supervision of the child and may be liable for intentional damage the child may cause.
In a guardianship of the estate, the guardian manages a child’s income, money, or other property until the child turns 18. This may be necessary if the child inherits money or assets.
In some cases the same person can be the guardian of the person and of the estate. In other cases, the court will appoint two different people.
Alternatives to a Guardianship
If a guardianship is not right for the situation, alternatives include a power of attorney, or a Caregiver’s Authorization Affidavit, which gives someone other than the child’s parent the right to enroll the child in school and seek medical treatment for the child.
Termination of a Guardianship
A guardianship is a legal relationship that ends when the child turns 18, the child dies, the child’s assets are used up (for a guardianship of the estate), or a judge decides the guardianship is no longer necessary.
Alternatively, the parents, guardian, or child (if 12 or older) may ask the court to end the guardianship.
