What To Do When Someone Lacks Mental or Physical Capacity?
WHAT IS A CONSERVATORSHIP?
A conservatorship is a court proceeding to protect a person and/or his or her property. Conservatorships are regulated by the California probate code and operate under the supervision of the probate court system.
The person protected is known as the “conservatee”. In a conservatorship of the person, a court-appointed fiduciary, known as the Conservator, manages the personal care of a person who cannot properly provide for his or her personal needs for physical health, medical care, food, clothing, or shelter. The conservator decides where the conservatee lives and may be required to decide whether the conservatee should live at home or in an institution. It is up to the Conservatory to determine what living arrangements are available and necessary to meet the individual’s needs.
In a conservatorship of the estate, a court appointed conservator manages the financial affairs of a person who is substantially unable to manage his or her own personal resources, or to resist fraud or undue influence. The Conservator is responsible to conserve, manage, and use the conservatee’s property for the benefit of both the conservatee and those whom he or she is obligated to support.
Petition for Appointment of Probate Conservator Shot Down. Consider Casey Kasem
November 2013 – Los Angeles (CNN) — “A request by Casey Kasem’s children that a temporary conservator be appointed for their ailing father was denied by a judge on Tuesday.
Kasem’s daughter Julie Kasem and her husband filed a conservatorship petition in a Los Angeles court last month, claiming the retired radio host “has been isolated from his daughters, friends and other family” by his wife.
Los Angeles County Superior Court Judge Lesley Green ruled Tuesday that Kasem, 81, was being well cared for by his wife, Jean Kasem.”
WHO IS IT FOR?
A conservatorship is typically established for an adult person who is proven to be unable to manage his or her personal care, needs, or finances. A conservatorship may be voluntary or involuntary. A person may voluntarily request the appointment of a conservator upon showing the court there is good cause for that to happen. In an involuntary conservatorship proceeding, persons who are related or interested in the proposed conservatee would make the petition to the court for the appointment and provide necessary proof of the need for a conservatorship. A conservatorship of an estate may also established for a person who is an “absentee” defined as a person who is in missing status and/or whose whereabouts are unknown. An example would be a soldier missing in action.
EFFECT OF A CONSERVATORSHIP
The establishment of a conservatorship places the responsibility for making financial and personal care decisions on the conservator in lieu of the conservatee. Because the conservatee’s rights are significantly curtailed, the law requires that the need for conservatorship must be established by clear and convincing evidence. Also, the probate court will review the conservatorship periodically to ensure that it remains in the best interest of the conservatee. The court has an investigative staff who must report to the court at the end of the first six months of the conservatorship, and one year after the appointment and thereafter annually. Also, detailed accounting reports of all of the conservatorship’s income and expenses, distributions, checks and asset sales must be filed with the court every two years.
ALTERNATIVES TO A CONSERVATORSHIP
As part of the process to get a conservator appointed, there must be a showing to the court that alternatives to conservatorship have been considered. Some alternatives to a conservatorship of the estate are revocable living trusts and durable powers of attorney that have been established in the past when the proposed conservatee was in full mental capacity. With a living trust, the proposed conservatee can often resign from being the trustee running the trust and allow others to run the trust and its financial affairs. Also, with a durable power of attorney, the person appointed as the attorney-in-fact can do most everything that a conservator can do, namely, manage finances, pay bills, invest money, and handle the money estate and property. The key is that the power of attorney must be “durable” under California law which means that it needs to have specific language. A durable power of attorney is still valid even after the person establishing the power of attorney has become mentally or physically incapacitated. A durable power of attorney can also be set up to not actually take effect until two doctors have examined the principal and attested to the principal’s mental or physical incapacity to manage his or her affairs.
Also, where the proposed conservatee has previously established an advance health care directive, (AHCD) also known as a power of attorney for healthcare, there may not need to be a conservator of the person. The AHCD is a legal device specifically intended to function when the principle is incapacitated and cannot make his or her own health care decisions.
BASIC REQUIREMENTS FOR ELIGIBILITY
The probate code requires proof that the proposed conservatee has a deficit in one or more mental functions and that there is a correlation between the deficits in mental functions that render the proposed conservatee unable to make and communicate decisions or to understand and appreciate the consequence of those decisions. The mental functions specified in the law are:
- alertness and attention,
- information processing,
- thought processes, and
- ability to modulate mood and affect.
These sorts of determinations require typically a doctor’s diagnosis and opinion. If the conservatorship is contested by the conservatee, known as an involuntary conservatorship proceeding, there can be considerable disagreement and testimony by various persons and doctors connected with the proposed conservatee. There have been instances where relatives wanting to exert their own influence over a proposed conservatee’s money and property have tried to force a conservatorship. The courts are aware of the these possible abuses and to require sufficient proof before deciding to establish a conservatorship.
SUBJECT TO FRAUD OR UNDUE INFLUENCE
Aside from the law allowing a conservatorship for one who is substantially unable to manage his or her own financial resources, a conservatorship may be established for one who is substantially unable to resist fraud or undue influence. This type of situation typically arises where the proposed conservatee has been spending or giving away money in a reckless manner and where it appears there has been some fraud and or undue influence by persons around him. The point of the conservatorship in this case would be to protect the conservatee’s estate from these types of influences. Often, this type of conservatorship is requested by concerned relatives.
CALL (949) 229-7034 to speak with Lawyer David L. Crockett
CHOICE OF CONSERVATOR
Often, the need for a conservatorship is discovered long after the proposed conservatee has begun to have financial problems or personal proble
ms. Those can be time-consuming to rectify and close relatives may not have the skill needed. There are persons who are professional conservators licensed by the state who in some instances might be better suited than close relatives. Another consideration is that the court will require any proposed Conservator to post a bond in the amount of the conservatee’s liquid assets . Unless the proposed conservator has assets and good credit, he or she may not be able to post the bond needed. For conservatorship of the estate, an institutional trust company or bank is sometimes the best choice if there are high-value assets involved. Another consideration is whether the proposed conservatee has signed a written nomination of conservator expressing his or her choices in this matter. Ultimately it will be up to the court to decide who is best suited for the job.
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