I recommend Matthew Talbot for his expertise and compassion in this complicated and delicate area of law.
When it comes to assisting a family member with mental capacity issues such as dementia, there are two main ways to help. One way is to have that person sign documents such as a Durable Power Of Attorney or Advanced Health Care Directive. When somebody signs these documents, he or she appoints another person to make medical and financial decisions on his or her behalf. However, sometimes this avenue is not available because the individual no longer has the mental capacity to execute estate planning documents. In those situations, a Conservatorship is necessary. For adults with special needs, a limited conservatorship is often necessary. For more information about Limited Conservatorships, click here.
To obtain a Conservatorship, you must petition the Court requesting they appoint you as Conservator over the person with mental capacity issues (i.e. the Conservatee). A Conservator can make legal decisions on behalf of a Conservatee – up to and including the management of non-trust assets and medical decisions.
When selecting a Conservatorship attorney, experience is key. When petitioning the Court to appoint a Conservator, you have the highest chance of success when working with an attorney who has extensive Conservatorship experience in the county where the elder (proposed Conservatee) lives. The county where the proposed Conservatee resides is the county in which Conservatorship must be obtained. Each county in California has specific rules and procedures. Knowledge of a county’s ins and outs saves clients both time and money, and can often mean the difference between obtaining a conservatorship – or not. For this reason, our firm focuses on conservatorship matters exclusively in Contra Costa County, Alameda County, San Mateo County, Napa County, San Francisco County, Santa Clara County, and Marin County.
Conservatorship of the Person. The Court will establish a Conservatorship of the Person if the Judge believes that the proposed Conservatee is not capable of making his or her own medical or healthcare decisions. If the Court appoints a Conservator of the Person, the Conservator generally has the ability to make medical decisions on behalf of the Conservatee. The Conservator can determine where the Conservatee will reside, assist them in obtaining necessary prescriptions, and make other necessary medical decisions.
Conservatorship of the Estate. The Court will establish a Conservatorship of the Estate if the Judge believes that the proposed Conservatee cannot manage his or her own finances, or is highly susceptible to undue influence. If a Conservator of the Estate is appointed, that person generally has the ability to make financial decisions on behalf of the Conservatee. The Conservator can take control of the Conservatee’s assets and manage them prudently, in the best interest of the Conservatee. The Conservator can invest the liquid assets and sell real property if necessary. The Court carefully oversees the management of a Conservatee’s assets, and requires a detailed accounting for each penny spent. The California legislature has put in many protections to ensure that no Conservator can misappropriate Conservatee funds for their own personal reasons.
Many caveats and exceptions exist when it comes to Conservatorship law in California. This is a general overview of the nature of a Conservatorship and when it is appropriate. If you are concerned about a friend or family member being unable to manage their health care or finances, and executing estate planning documents is not feasible, a Conservatorship may be warranted.
A Temporary Conservator is needed when there is an emergency need to protect someone who is incapacitated (or their property) from injury or loss. For example, if a family member is taking financial advantage of an elderly person, a temporary Conservatorship may be warranted to block access to the Accounts and stop the bleeding.
Temporary Conservatorships are heard by the Court on an “Ex-Parte” basis, meaning the Petition will be reviewed by the Judge within about a week’s time, and a decision will be made regarding the appointment of a Conservator.
If one does not petition the Court for Temporary Conservatorship but instead just files for a General Conservatorship, the Court will set a hearing date approximately 6-8 weeks after the date the initial Petition is filed.
Our firm handles a significant amount of litigated Conservatorship matters, and our main focus is always attempting to mediate these matters. Conservatorship litigation can occur for a number of reasons, including disputes over who will act as Conservator and allegations of financial elder abuse. In those instances, we try to work with all parties to find a mutually agreed upon resolution before taking the matter to trial.
More information on the Contested Emergency Conservatorships.
Matthew Talbot discusses how Conservatorship works in the California Probate Courts:
Becoming a Conservator is a significant responsibility, and knowing the appropriate next steps is essential to a successful conservatorship. Our trusted attorneys have prepared a complete checklist to guide you through this important process.
Estate Planning and Probate Firm Talbot Law Group assists clients with their estate plans across California, including Contra Costa County, Alameda County, San Francisco County, Napa County, Marin County, Sonoma County, Santa Clara County, San Mateo County, and Los Angeles County.
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