Are you looking to become a conservator but aren’t sure where to start? Well, you are not alone. When navigating setting up a conservatorship, one of the top questions people have is often, “What is conservatorship of the estate vs conservatorship of the person?”
Both conservatorship of the estate and conservatorship of the person is all about helping an incapacitated person with an aspect of their life. This legal process requires the court to determine a pattern of unsound judgment and behavior on the part of the person in need. However, not every person needs the same kind of assistance, which is why these two broad categories of conservatorship exist. If you will be the conservator in charge, you’ll want to know what conservatorship of the estate vs. conservatorship of the person is and how they both work.
What Does a California Conservatorship Entail?
First, let’s go over the responsibilities and rights conservators gain through this legal process. A conservatorship is basically a court procedure to appoint a responsible person (in this case, you) to manage the financial or medical affairs of another individual (the conservatee). The conservatee may require this arrangement because they lack mental capacity and/or are physically incapacitated.
Conservators are family members, friends, or sometimes professional fiduciaries. They have “special powers,” or the legal responsibility to manage the conservatee’s finances and personal affairs in a way that is in the conservatee’s best interest.
For a conservatorship to apply, the court must determine that the conservatee actually needs it, and the other alternatives to it are not possible. Keep in mind, as well, that adult guardianship doesn’t really exist in California. In our state, guardianships mainly apply to minor children.
The Two Main Types of California Probate Conservators: Conservatorship of the Estate vs. Conservatorship of the Person
There are two types of conservatorships in California when it comes to the role of the conservator: conservatorship of the estate and conservatorship of the person. Both of these conservatorship types afford the conservator with specific legal abilities.
Conservatorship of the Person in California
This is the best conservatorship for people who need help with personal welfare and everyday living. For example, they may need help choosing or maintaining their residence and arranging medical care.
Personal conservators are accountable for ensuring that the conservatee’s personal affairs such as food, clothing, shelter, and healthcare are well-catered for.
Duties of Conservator of a Person in California
A conservator of a person is required to arrange for the conservatee’s care and protection and decide their residence. They make arrangements for the conservatee:
- Health care
- Overall well-being and physical health
The conservator, of course, can’t take charge of health care or other important decisions totally unsupervised. They must consult the court for some decisions concerning the conservatee’s health care or residence arrangements. They also have to keep detailed records (medical records) and report to the court on the conservatee’s current status on a regular basis. Doing this helps maintain safe care for elders or other conservatees and protects the conservator from conservatorship abuse accusations.
California Conservatorship of the Estate
A conservator of the estate oversees and makes decisions regarding the conservatee’s financial decisions rather than personal decisions. After the court establishes that the incapacitated adult cannot do so, the conservator has the legal responsibility to pay the conservatee’s bills, keep detailed financial records, collect their income (including social security payments), and the like.
Duties of a Conservator of the Estate
Besides overseeing the incapacitated person’s finances and paying their bills, a financial conservator is also tasked with the following:
- Locating and managing all their real estate and other assets (such as living trusts)
- Collecting the disabled person’s income
- Overseeing gifting of assets
- Protecting the conservatee’s assets and changing insurance policies
Just like with a conservatorship managing personal care, these kinds of conservators have some legal supervision. Both personal relations serving as conservators and professional conservators have to make regular reports to the court and the conservatee showing the financial transactions they have made with the conservatee’s assets and other investments. This allows the courts to keep an eye on conservators’ activities.
Can You Be Both the Conservator of the Person and the Conservator of the Estate?
Yes! However, you have to apply for each type separately. Being appointed a conservator of the person doesn’t automatically make you a conservator of the estate.
If you want to serve as both types of conservators, you have to petition to be appointed for both. You can file both your petitions at the same time. If you’re appointed a conservator of the estate and later you want to be a conservator of the person (or vice versa), you will have to file a petition to be appointed a conservator of the person.
Can Anyone File for a Conservatorship?
Basically, the answer is yes. Once it’s established that a person needs a conservator, the following people can file for a conservatorship:
- The spouse or domestic partner of that person
- Their blood relatives (i.e. adult child or adult siblings)
- Any interested state or local entity or agency
- Any other interested person or their suitable family friends
- The proposed conservatee themselves
How Does One Become a Conservator of the Estate and/or Person?
To establish a conservatorship, you have to go through a rigorous legal process. This is meant to provide a powerful safeguard against creating management mechanisms for someone who doesn’t actually need them. Here’s a basic overview of how this works.
1. File a Petition for Conservatorship with the Court Clerk
The process of setting up a conservatorship begins by filing a petition for the appointment of a conservator with the court clerk. The petition must contain information about:
- The proposed conservatee
- The conservator
- The conservatee’s relatives
- The petitioner
- The reasons for establishing the conservatorship
- Why alternatives for conservatorship are not suitable.
The petitioner has to pay a filing fee plus a court investigator fee once they file. If the petitioner happens to be a low-income earner, the court allows them a fee waiver.
2. Informing the Proposed Conservatee and their Relatives
The petitioner has to appoint someone else to do a few tasks for them at this point:
- Deliver a citation and a copy of the petition to the proposed conservatee without capacity
- Mail a written notice on the conservatorship court hearing and a copy of the petition to the proposed conservatee’s close relatives and domestic partner/spouse
- Provide evidence to the court that this task has been completed
3. Court Investigation
At this point, a court investigator talks to the proposed conservatee and the people who are familiar with the person’s situation. This is meant to determine if appointing agents for conservatees is absolutely necessary. However, the court has a duty to conservatees to stop this process if it finds it a hardship for the proposed conservatee.
4. Conservatorship Court Hearing
During a conservatorship hearing, the judge reviews the details of the case and chooses to approve or deny the choice of a conservator pursuant to the case. The court requires the proposed conservatee to attend the conservatorship proceeding unless they are incapable due to illness.
If the conservatorship is granted, the court files an order appointing the conservator (JC form) and then issues the letters of conservatorship. If the conservatee has an estate, the conservator must file a surety bond unless the court issues an order to freeze the conservatee’s bank accounts.
Once appointed, the conservator has to start educating themselves. They must get a copy of the Handbook for Conservators from the court and attend the conservatorship clinic for conservators offered by the court. This helps the conservator learn to avoid undue influence so Adult Protective Services never has to get involved.
What Are the Other Types of Conservatorships?
Outside of which areas of someone’s life are controlled (conservatorship of the estate or person), there are different types of conservatorships depending on other factors. These can include the state of the conservatee’s disability and the duration of the conservatorship. Which type of conservatorship is right for your loved one? Let’s take a look.
General Probate Conservatorships
They are for adults who cannot fully handle themselves/financial resources. The conservatees are usually elderly individuals, but can also be younger people who have been seriously impaired, for example, due to road accidents. Depending on whether a general probate conservatorship is a conservatorship of the person or the estate, the conservator can do everything from manage medical treatment and health care decisions to create a revocable living trust and manage joint accounts and community property.
Limited conservatorships are established for developmentally disabled adults incapable of managing all their personal or financial affairs. Limited conservatees can manage some aspects of their lives and do not need an extra level of care like general conservatees.
Limited conservatees may have severe/chronic disability due to mental or physical problems that started at birth or during childhood. Limited conservators can help them attain maximum self-reliance by helping them receive mental health treatment or make major decisions.
Mental Health Also Lanterman Petris Short (LPS) Conservatorships
In California, LPS conservatorships are for people who are established to be a danger to themselves or others due to a specific mental illness. They usually last for just a year and can be voluntary or involuntary. If required for more than one year, the court reactivates it and reappoints a conservator. They must be established by a local government agency.
This is a rarer form of conservatorship to be used for isolated incidents in which the person subject to the conservatorship is in a very dire situation. They may need powerful drugs and special care in a locked facility against their will, for instance. Such people have to have one of a number of specific illnesses like bipolar disorder.
If an incapacitated or disabled person has immediate needs that cannot wait for the appointment of a general conservator, they can apply for a temporary conservator. Temporary conservatorships usually last for 30-60 days and can be of the person, estate, or both.
A temporary conservatorship has to be applied for along with general or other types of conservatorship. Someone may apply for one in between two permanent conservatorships, for example, so they can help an adult in situations out of their control.
Do You Need a Conservatorship Attorney?
Setting up a conservatorship is meant to be somewhat difficult. However, you may not need an expensive conservatorship attorney. If a person closest to you needs help, a legal document preparer like A People’s Choice can help you help them.
A People’s Choice has many legal document preparers well-versed in the conservatorship process. We can also help with a number of other civil legal documents, including business affairs, durable power of attorney forms, an advance health care directive, forms for property administrators, and more. Let us make your permanent conservator journey easier—contact us today.