For assisting a friend or family member with mental capacity issues, there are two main ways to help them. One way is to have them sign documents such as a Durable Power Of Attorney or Advanced Health Care Directive. When somebody signs these documents, they are appointing another person to make medical and financial decisions on their behalf.
However, sometimes this avenue is not available, because the mental capacity issues are too severe or the person is susceptible to undue influence. In those situations, everybody must trek down the other main way, which is a Conservatorship.
A Conservatorship is the best way to assist an elderly person with severe mental capacity issues, while also providing complete and total protection. To obtain a Conservatorship, you must petition the Court requesting that they appoint you Conservator over the person with mental capacity issues (i.e. the Conservatee). A Conservator can make legal decisions on behalf of a Conservatee in several different situations.
There are two main types of Conservatorships, Conservatorship of the Person and Conservatorship of the Estate. The Court will establish a Conservatorship of the Person if the Judge believes that the Conservatee cannot make medical decisions by themselves.
Therefore, if the Court appoints you Conservator of the Person, you generally have the ability to make medical decisions on behalf of the Conservatee. You can help determine where they will reside, assist them in obtaining necessary prescriptions, and make many other medical decisions for them. Often times, people with mental capacity issues can’t understand what they need to do when it comes to their health care. Having a Conservator of the Person can literally save a person’s life.
There is also the Conservatorship of the Estate. The Court will establish a Conservatorship of the Estate if the Judge believes that the Conservatee cannot manage their finances or is susceptible to undue influence. If you are appointed as Conservator of the Estate, you generally have the ability to make financial decisions on behalf of the Conservatee. You take control of their assets and manage them prudently. You can invest the liquid assets and sell real property. However, there are many complicated laws regarding the management of the assets. Further, you have to account to the Court for every penny. The California legislature has put in many protections to ensure that no Conservator can misappropriate Conservatee funds for their own personal reasons.
There are many nooks and crannies in this area of the law. However, this is a general overview of the nature of Conservatorship and when it is appropriate. Where somebody is concerned about a friend or family member being unable to manage their health care or finances and executing estate planning documents is unreasonable or does not provide strong enough protection, a Conservatorship is necessary.
Conservatorship law can be complicated. Matthew Talbot is an Estate Planning Attorney who specializes in Conservatorships in the San Francisco East Bay.
The Law Offices of Matthew B. Talbot serves Lamorinda, Concord, Pleasant Hill and the greater Contra Costa County area. Please call us at 925-322-1795 to set up a consultation.