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When infirm adults can no longer provide safe and effective self-care, another person must step up to help. That person can obtain both the power and authority to act on behalf of the infirm adult by applying for a conservatorship.
Conservatorships are court proceedings where judges appoint responsible people as conservators for infirm or developmentally disabled adults. Some states call them living probates. Just about anyone, including the proposed conservatee, can file a petition for conservatorship. Your conservatorship attorney can tell you that in California, the court appoints conservators according to the following order of priority:
1.) spouse; 2.) adult child, 3.) parent, 4.) sibling, 5.) any other interested person, and 6.) the public guardian.
If the person with the highest priority declines to act, he or she can nominate another. If all qualified family members and friends refuse to serve, the court will likely appoint a private professional fiduciary or public guardian.
Probate judges must find that a proposed conservatee lacks the ability to provide for self-care and protection before appointing a conservator. In California, appointments take about eight weeks from the filing date. They may take longer if there is opposition. In rare cases of extreme urgency, the judge may appoint a temporary conservator within a couple of days. Our conservatorship attorney will analyze the facts and circumstances of your case to determine if it’s time for a conservatorship.
Conservatorship attorneys and the conservators they represent are entitled to reasonable compensation for their services, payable from the conservatee’s estate. First, they must file fee petitions with the probate court. Any interested person can object to unreasonable fee requests. Judges will review fee petitions and any objections before approving the requests. Once approved, conservators may pay their attorneys and themselves from the conservatee’s bank accounts.
Conservatorships have two parts: a conservatorship over the “person” and a conservatorship over the “estate.” A conservatorship over the “person” includes authority to make decisions regarding a conservatee’s day to day activities, such as where they live, what they do, how they do it and who they do it with. A conservatorship over the “estate” includes authority to make decisions about the conservatee’s assets, such as managing rental property, collecting income, paying bills and investing. The scope of a conservator’s authority may include both the “person” and “estate” or it may be limited to one or the other. Ask one of our conservatorship attorneys if you should seek a conservatorship over the estate, person or both.
Regular conservatorships are the most common. They help aging adults that are suffering from diminishing mental capacities. Conservators in regular conservatorships usually have full decision making powers.
Limited conservatorships have similarities with regular conservatorships, except they only benefit developmentally disabled adults (typically someone with autism or an IQ of 70 or less). Conservators in limited conservatorships have limited authority because most developmentally disabled adults are capable of making some decisions.
LPS conservatorships benefit people with serious mental illnesses that require special care and treatment. LPS conservatees typically live in locked facilities or receive powerful medicine to control their behavior. For people suffering from dementia, LPS conservatorships are not appropriate; they should be conserved under a regular conservatorship proceeding.
Conservatees typically share some of the following characteristics: they can no longer effectively perform daily tasks such as shopping for food, making meals, bathing, dressing themselves, cleaning the house, driving a vehicle, protecting and defending themselves, keeping accurate records, accounting for their money or paying bills. They often feel lonely, isolated and withdrawn. They are susceptible to fraud and inheritance theft scams.
Knowing when to seek a conservatorship can be difficult. The “right time” is not always obvious because a proposed conservatee may appear lucid one day and confused the next. Denial about a parent’s advancing age may also cloud the warning signs. A proposed conservatee’s desire for prolonged independence is understandable, but may come with significant risks to their health, safe and financial stability. When conserving a loved one is the only safe option, consider seeking the advice and counsel from a California conservatorship attorney. An experienced lawyer can help get you appointed as a conservator. Or, conversely, he can help you remove a bad conservator. They can even help terminate unnecessary conservatorships.