Who should be Conservator? The Role of the Professional Fiduciary

Conservatorship (called Guardianship for minors) becomes necessary in a variety of circumstances, most commonly due to a lack of mental capacity. When a Conservatorship is needed, someone must step in to fulfill the role of Conservator. A Conservator is charged with the (often difficult) task of caring for the well being of another. Acting as Conservator for another can be a daunting and time consuming responsibility. This is why some family members choose to have a Professional Conservator. 

What is a Conservatorship under California Law?

For older adults, a Conservatorship is a legal proceeding that allows an individual to make financial and/or healthcare decisions for another person. This typically includes making decisions regarding daily life. Conservatorships are generally granted when an individual lacks mental capacity and does not have the appropriate estate planning documents in place. 

The court has a process through which a Conservator can be appointed to manage the financial and or medical affairs for another individual – the Conservatee. If a family opts for a Professional Conservator, that person would be appointed appointed during the court process. Professional Conservators are formally called “licensed fiduciaries.” In California, professional fiduciaries are licensed by the state, and serves in roles such as Professional Conservator, Professional Trustee, or Professional Estate Administrator.

What does a Professional Conservator do?

As Conservator, a professional fiduciary will manage affairs for the conservatee such as housing and medical needs, paying bills, and managing other matters related to daily care and finances. It is possible to have a professional conservator who only manages matters related to health and wellbeing. A Conservator who manages only the health and daily care of a Conservatee is called a Conservator of the Person. Similarly, it is possible to have a professional conservator of the estate. A Conservator who manages only the financial aspects on behalf of a conservatee is called a Conservator of the Estate. Generally, a professional fiduciary will manage both for the Conservatee, but this is not always the case.

When do you need to hire a Professional Fiduciary to be Conservator?

There are generally two reasons a professional fiduciary is hired to act as Conservator. The first is that there is a need and there is no one else available to fill that role, and, there is money in the Conservatee’s estate to pay for a professional.

I have personally been appointed by the court to represent several Conservatees who are (or were) in this situation. Several of my clients simply did not have any family remaining, and some had family who were not capable of providing the care necessary. 

Another situation where a Professional Fiduciary is selected as Conservator is when family members cannot agree on who should be Conservator. In many of these situations, there are other issues surrounding the Conservatorship. For example, one or more children have serious concerns about another child’s management of the proposed Conservatee’s finances, or the care of the Conservatee. When family members are in disagreement over who should manage the affairs of an elder, the court will often appoint a neutral third party (or licensed professional fiduciary) to act. 

How is a Professional Fiduciary appointed as Conservator and what does it cost?

There are several ways a professional fiduciary can be appointed as Conservator. The following are the two examples.

1. A family member hires an attorney to begin the Conservatorship process. The attorney helps the family member(s) select a professional fiduciary as proposed Conservator. Once the professional fiduciary has agreed, his or her name is put as proposed conservator on all Conservatorship documents filed with the court. The court will set a hearing date, and choose whether or not to establish a conservatorship and will affirm or not affirm the decision. If the need for a conservator is immediate, and family members are in disagreement as to who should be conservator, the judge will often appoint the proposed professional. 

2. A Conservatorship case is brought before the Court and the judge sees a need for a professional fiduciary. The judge can select a fiduciary at that time and appoint them to act as Conservator. 

There are additional ways and circumstances in which a fiduciary can be appointed as Conservator. Appointing a professional is often a temporary solution while family members resolve differences and work to come to an agreement for the long term. 

The costs associated with hiring a professional fiduciary are not small. A licensed, bonded fiduciary typically charges an hourly rate of $125-$150. In addition, the fiduciary comes with their own attorney, who bills at an hourly rate of $325-$550. The attorney may or may not have a large role in the Conservatorship, generally depending upon how contentious it is. Despite the high apparent cost of a fiduciary, strategically putting one in place during a contested conservatorship can in fact save thousands in attorney fees if the family continues to fight over who should be conservator.

Every Situation is Unique

When faced with a possible conservatorship, families often have a number of options. I recommend meeting with an experienced Conservatorship attorney. If family members are at odds, it’s best to seek counsel from a conservatorship attorney who handles litigated conservatorships (or contested conservatorships) on a regular basis. It’s also smart to seek out an attorney who is familiar with the county’s probate court where the conservatorship will be established. An attorney who knows how the court deals with conservatorships has a leg up on one who is not familiar with the court. 

For questions about Conservatorships, Contested Conservatorships, or hiring a professional fiduciary, call our Contra Costa Probate and Conservatorship Law Firm at 925-322-1795 to set up a consultation.