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When you need a conservatorship and what to do if it’s Contested

Contested Conservatorship Attorney

Knowing when a conservatorship is necessary is complicated enough. When family members disagree about the care of a parent or relative, obtaining a conservatorship can become even more complex. 

So, how do you know when you need a conservatorship – and what do you do if family members disagree? 

As an attorney who specializes in Elder Law in the San Francisco East Bay, I have had significant experience with both contested and uncontested conservatorship matters.

Most often, a conservatorship is needed when a person no longer has the mental capacity to sign legal documents, and they do not have a Power of Attorney. There are two kinds of conservatorships – a conservatorship of the person, and a conservatorship of the estate. Having a conservatorship over an individual means having the legal right to make decisions on that person’s behalf.

When an individual has capacity (i.e. no mental disability or dementia), they can execute a power of attorney.

When is a Conservatorship Necessary?

A conservatorship is necessary for those individuals who have neither a power of attorney or healthcare directive, and have lost the ability to make informed decisions and/or care for themselves. A conservatorship may also be necessary for other reasons, such as an invalid or fraudulent power of attorney document.

How do you know if a family member needs to be under conservatorship, and what is the legal process for obtaining one in California?

What if your family does not agree on the necessity of a conservatorship, or who will be conservator?

In this article, I examine a case recently brought to me by a friend and colleague.

This month, a dear friend and colleague named Renee came to me with a situation which I have unfortunately seen all too frequently. His dad had been suffering with dementia, and was struggling to care for himself. Furthermore, his father was having difficulty coming to terms with his Alzheimer’s diagnosis. Renee was desperate to help his father get the medical care he needed, and called to ask me about obtaining a medical power of attorney.

In addition, my Renee’s brother opposed the idea of trying to force their father to do anything against his will. 

I informed Renee that because his father had been diagnosed with dementia, it was unlikely he would be able to have his father sign a medical power of attorney. With no prior healthcare directive (CA medical power of attorney) along with a diagnosis of Alzheimer’s, a Conservatorship would be necessary. 

The problem that Renee faced is that one cannot sign a health care directive for anyone else. Under California law, only the principal, or person giving up rights, can appoint an agent to act on their behalf. Forging a signature in another’s behalf, or having a person with a diagnosis of dementia execute a legal document can have severe and costly legal ramifications.

Despite the fact that his father would not likely be in favor of a conservatorship, and his brother opposed the idea as well, if Renee wished his father to get the care he needed, he would have to go to court. 

Even in the face of opposition, the court will grant a conservatorship if significant evidence of its necessity can be demonstrated. 

A conservatorship is essentially a court process wherein the court appoints an agent to act on behalf of the principal, or person who needs help.

I recommended Renee petition the court for a Conservatorship of the Person, which allows an appointed agent to make medical decisions. A Conservatorship of the Estate grants someone power to manage the financial affairs of another. For Renee, this was secondary.  

How long does it take to establish a Conservatorship?

Renee’s father was already ill and in need of round the clock care. As such, time was of the essence and we would need to act quickly. For these types of situations, the court can petition the court for an Emergency Conservatorship. There are two types of these conservatorships– the general conservatorship and the emergency conservatorship.  An emergency conservatorship takes 5 court days notice. In other words, you can file a petition for the conservatorship, mail copies of the documents to all legally required persons, and and the court will set a hearing on the matter within 5 days.  

What do you do if the Conservatorship is Contested?

Legally, Renee would be required to notice both his brother and his father that he was petitioning for a conservatorship. As such, Renee wanted to know what would happen if his brother wanted to fight him on the issue. This is where it can get complicated. There are a few different issues here.  One is that the court is likely to appoint an attorney to represent your father’s interest. That attorney will present a recommendation to the court.  Secondly, if family members are not in agreement, the court might look to a neutral third party.  If there are multiple family members fighting and the court is concerned about the impact this will have on the care of the elder, they might ask for a neutral professional to manage the elder’s care in the short term. This will allow an opportunity for family members to litigate the matter or come to an agreement. In the meantime, however, the care of the elder will be seen to by a professional care manager.

In California, professional care managers are called professional fiduciaries, and are licensed by the state. I work with them all the time. In Renee’s situation, asking for a professional fiduciary to be appointed right off the bat is likely his best bet to obtain a temporary conservatorship. Even if the court did appoint Renee as Temporary Conservator of his father’s medical affairs, he may have a difficult time dealing with his brother. Each situation is unique, so I asked Renee if he believed his brother would further pursue the situation once a conservator was appointed. 

Yes, was his firm answer. He knew his brother would continue to fight him. Unfortunately, this is the case in many families, and animosity that exists is not resolved by the initial court order.  Should the court decide to choose Renee, it may make the animosity between the brothers worse, as his brother would likely feel hurt.  On the other hand, if both of them can agree on a neutral third party to administer care while they work out their issues, this may be in everyone’s best interest going forward. 

In short, when someone wants to retain me to assist them in a situation similar to Renee’s, I typically recommend they seek a temporary conservatorship using a neutral third party in the short term. From there, an attorney can be put in place to represent the conservatee, to ensure that whatever is occurring is in the conservatee’s best interest, and their voice is being heard. This also gives family members a chance to either back away from the situation, or come to a resolution regarding the care of the elder going forward. 

Who Pays the Costs associated with a Conservatorship?

Who pays for my attorney? Who pays for my father’s attorney? What about the professional fiduciary?

These are all important questions, as the cost of a conservatorship can add up. The simple answer is that if the conservatee, or family member needing help, has funds, these funds will be used to pay for all costs. If they do not, the county can pay for their costs.  The issue is that if the petitioner (Renee in this case) has an attorney, other family members have attorneys,  the conservatee has an attorney and the fiduciary has an attorney, and they are all billing at a few hundred dollars an hour – that can mean that the estate dwindles quickly.  This has the benefit of inspiring people to really focus on resolving their issues, and avoiding litigation so that the money goes to the care of the father, and not to attorneys.

For questions about Conservatorship in California, contact our Walnut Creek Conservatorship Attorneys at 925-322-1795 to set an appointment. Note that we specialize solely in Conservatorships in our direct surrounding area.

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8 Responses
  1. Cher

    I have a question, I currently have the Power of Attorney and Executor power for my mother and have had for approximately 6 years, one of my brother’s is filing for conservatorship. I became ill and was in the hospital for eleven days. My mother was diagnosed with mild dementia (I have it in writing by her physician) in 2011 however; my brother had my mother declared as having dementia in January 2017. I do not know how to fight this as I have little money, I am employed by the State of California as a care giver full time for my husband and am not paid but take care of my mother full time as well. What are my options, what can I file to at least be heard by the court? My husband and I live in my mothers home ( a double wide mobile) as she has it specified in her will that it become part of my inheritance. We live in Bishop, California which is 45 miles from Mammoth mountain and everyone knows everyone else especially our attorneys, my brother lives in Whittier, California and visits once or twice a year to go fishing. Any help you can give me would truly be appreciated.

    1. Matthew Talbot

      Hi Cher,

      Thank you for your comment and question. I am so sorry to hear you are in a difficult situation that is being further complicated. If you do not have funds to hire an attorney, there are still good ways to have your side of the story heard in court. In the county in which I primarily work (Contra Costa), the clerks at the courthouse can be very helpful in directing in pro pers (those with no attorney) in the necessary steps to take regarding Conservatorships. I would also hope that this is true in the county where the Conservatorship of your mother was filed. You can phone the probate court directly and ask how best to proceed, when the hours are that they will provide assistance, etc.
      In addition, our county has a program that allows one to hire a lawyer at a very reduced rate. In Contra Costa County, this is called the "moderate means" program. You can try phoning the bar association of the county where the Conservatorship has been filed to see if they have something similar, and also what the rates of the attorney are.
      I wish you the best of luck.

  2. Tami

    I have a question, my 27 yr. old Son was recently shot and is currently in a long term care facility. He has severe brain damage I want to make sure that his health insurance, benefits, current as well as future continue. Also, at the time this happened he was on SDI and he is unable to continue his claim. Do I have to get Conservatorship even though I am his mother and I raised him alone? I am praying that his condition is temporary and he will be able to do everything himself eventually. But right now it’s impossible. What do you suggest?

    1. Matthew Talbot

      Hi Tami,

      I am so sorry to hear about your son. I too pray that his condition is temporary. In certain cases organizations (such as the government) will work with you to obviate the need for a conservatorship. However, I would highly recommend consulting with an attorney who specializes in Conservatorships in the county where your son resides. Typically, county bar associations have a lawyer referral service that will arrange a consultation for you at a low cost. Many attorneys will also do free consultations if you contact them directly. I wish you and your son the best.

  3. Sarah Quigley

    I am the 24/7 caretaker to a 81 year old woman who has dementia. I have POA and also on the Trust. I’ve been advised to get conservatorship to take care of her financials. Since, at the current time, she cannot access her funds at her bank, we are not able to afford all legal costs that go into getting an Conservatorship.
    This is in los Angeles county and not sure if there’s a cheaper way to go about doing this.

  4. andy m

    Hi There, I am single and live in CA. I want to donate all my assets to non profit organizations when I die. I am planning to hire an estate attorney to draft my will. But, I have a problem here. I have nobody I can trust to be my conservator/trustee. I don’t want my estate attorney to be my conservator/trustee due to a conflict of interest. Please advise what should I do. Thank you in advance.

  5. AN


    My brother is homeless and on drugs living in CA. Can myself or a family member become his conservator so we can get him help? I don’t know what else to do? Any suggestions will be greatly appreciated. Thanks in advance.

  6. Susana

    I have a friend and her father is 92 yrs old. Now this friend has a sister who took conservatorship but lieing to get it.. my question is can this person change every bank account in there name even if the father disagrees and start making to many changes on how things are done in his household?