Conservatorships are supposed to help folks who are no longer able to take care of themselves. If you have elderly or incapacitated loved ones, this is likely a subject you’ve encountered before. But what happens to the conservatorship when the incapacitated individual dies? Is conservatorship valid after death?
This is a reasonable question if you are a relative or close friend of a conservatee. When a conservator is appointed upon determination of incapacity, their major role in making sure that the incapacitated person leads a normal life. During the conservatee’s lifetime, if the conservatee requires estate planning or the creation of custodial trusts for their estate, the conservator can also oversee that using power of attorney. The custodial trusts can oversee the estate distribution after death
Even so, it’s not exactly common knowledge what happens to the arrangement if the conservatee passes away. So, is conservatorship valid after death? Read on to learn more about this important transition.
Does Conservatorship Always Last Until Death?
In most cases, conservatorship ends in one of two ways: the conservatee gains the ability to care for themselves after spending some time with a health care agent or the conservatee passes away. Based on the California probate code, there exist two primary ways to end a conservatorship or duties of guardian: 1) through court order or 2) through death.
Most courts (and conservatorship attorneys) don’t like using the term “permanent conservatorship” since it’s always hoped that the incapacitated individual will regain independence. This might not apply to some situations, however (such as elderly conservatees). For such a scenario, the conservatorship will last until the person dies.
Is a Conservatorship Valid After Death? End-Of-Life Protocol for Conservatorships
The California probate code §2467 states that the conservator “continues to have the duty of custody and conservation of the estate after the death of the… conservatee pending the delivery thereof to the personal representative of the… conservatee’s estate or other disposition according to law.”
Therefore, the short answer to this question is “yes.” The duties of the conservator don’t necessarily immediately terminate upon the death of the protected person; they may continue for a short while after to wrap up the financial affairs or probate procedures of the deceased. When the conservatee dies under a care facility, the conservator must follow legal procedure to terminate the conservatorship.
Whether a conservatorship stops or not also depends on the type of conservatorship. For mental health conservatorship, for example, it takes one year for the conservatorship to stop after the conservatee dies. A court order may also be used to end this form of conservatorship.
Duties of the Conservator During Closure of the Conservatorship
Is a conservatorship valid after death? Yes, for a time, since there are many tasks that must be completed when someone dies. A personal representative may step in to cover some of these duties (more on that later).
After the death of the protected individual, the conservator has to finalize some aspects that pertain to the conservatorship. This is the final exercise of power for the conservator. It’s after this that the duties of the conservator dissolve (as per the conditions for an appointment). As a conservator, you must handle the following issues before closing the conservatorship.
Addressing the Use of Funds
As a conservator, your control over the funds of the conservatee ends after their death. Therefore, if their funeral and burial expenses were not catered for in estate planning arrangements, you’ll need court approval before meeting such expenses. You’ll need to file a petition with a request to use funds for the deceased’s funeral.
However, to some degree, the use of funds may fall to a personal representative during this stage. Remember that you as a conservator cannot set aside funds to pay bills without receiving the court’s approval. Instead, you’ll retain the property until the filing of the estate takes place and a personal representative is chosen for the estate.
Notifying the Relevant Agencies
Was the conservatee receiving benefits? If so, you have to report their passing away through an annual notice. You’ll need to contact organizations such as:
- The Department of Human Services
- The Department of Social Security Administration
- Department of Veterans Administration
Notifying the government of the conservatee’s demise will help them terminate the benefit allocation. If the conservatee owned life insurance, you must also inform the company involved through an annual notice. Please note that as you wrap up the financial affairs of the conservatee, you should not cash in any monthly benefit checks after the death of the conservatee.
Filing the Will
Did the protected person have a will or a revocable trust? If you have a valid will, deliver it to the court so that the probate proceedings begin. You also need to notify the individual chosen as a personal representative to the deceased. This individual will oversee the form of distribution of the estate during formal and informal probate, including real estate, title to assets, and more.
These steps prepare the personal representative to oversee the devolution of the estate through probate administration. Any entitlement of spouse (without a decree of separation) should also be established during this time. Note that the distribution of the estate at death can sometimes happen without any formal probate proceedings or demand for notice as long there is a proper estate plan for beneficiary designation.
Preparing the Final Account
Within 60 days after the death of the protected person, you’ll need to use your power of attorney to file the final account. This is the main duty of a conservator after the death of their conservatee; you can learn more about this in the next section.
During the final account, you’ll disclose every asset owned by the deceased. That’s right; the conservator has the individual liability of determining the location of property belonging to the incapacitated individual. This may include real property as well as mobile possessions and other forms of personal property.
The conservator must also make a note of any payment of debt carried out. This covers items before and after their death.
In addition to the final account, you must also file a:
- Death certificate
- Proof of service (on interested parties)
- Petition to allow accounts
If you need help with these filings, feel free to contact A People’s Choice.
Allowing the Final Account
Once you file the final accounts, the court will schedule a “paper” hearing. This session seeks to allow the final account alongside any other account. The judge then signs the “order allowing account” if no objection for improper exercise arises during the hearing.
The order simply means that your duties as conservator end after the transfer of assets to possible beneficiaries. The conservator receives a copy of this order.
Turning Over the Assets
This is normally the last step when ending the powers of the conservator. You need to “hand over” everything owned by the deceased to their personal representative so that the distribution of the estate can commence. During the delivery of property to the hands of the personal representative, you need to document everything about the delivery of property by affidavit. The representative then oversees asset distribution and closes out the estate.
If the conservatorship estate needs no probate, asset distribution takes place according to the will of the conserved person or through the joint survivorship rights. The affidavit used during the turning over of assets can serve as a reference if any conflict arises because of improper distribution. You should submit a copy of this to the court to avoid limitations on proceedings.
When the court receives the documentation for closing estates, you are free to quit your role as conservator. At this point, you have no liability to persons yet to inherit the estate assets and don’t need to carry out subsequent estate proceedings. However, if the estate remains open, your discharge will only happen when the personal representative submits an inventory to the court showing proof of receipt of the deceased conservatee’s property.
California Procedure for Final Accounting After the Death of a Conservatee
It’s a legal requirement for the conservator to complete certain fiduciary duties before stepping down. They must use their durable powers to ensure that every detail concerning the deceased’s (formerly a conservatee) annual accounting passes through the court. The California probate code states that the final accounting must occur for the deceased person’s estate and the relevant financial source documents presented by the filing party.
Duties of the Conservator During Final Accounting in California
Creating the Final Accounting: The conservator must account for every financial aspect for the entire conservatorship period before formal or informal probate can occur. The filing party must also provide separate accounting information for the period after the conservatee dies. This signifies that even after the death of the protected person, the conservator still has to take care of some issues for the deceased (i.e. financial source documents).
Filing the Final Accounting: It’s essential that the conservator files and requests for approval of final account administration from the probate court in California.
The Court’s Role in Final Accounting
The court still has a delegation of power over the conservatorship process and designation of successor even after the death of the conservatee. It has the special power to oversee the settlement of the conservatee’s accounts. Apart from that, the court also makes judgments and puts forward orders concerning the conservatee’s accounts.
It’s also a singular duty of the court to oversee the termination of the relationship between the two parties (conservator and conservatee). The court can also exhibit exercise of power to oversee any petition for appointment of a conservator or appointing a successor conservator.
Is It Possible for the Court in California to Waive Final Accounting?
Under normal terms, the laws in California do not give any provisions for a conservator to petition the court to waive the final accounting. Also, the law doesn’t prohibit the court from performing this waiver when the conservator tables a valid request.
However, a conservator may request a waiver in an attempt to avoid the delays and extra costs that accompany final accounting. If a conservator requires a final accounting waiver from the court, they’ll have to first fill and submit the details for disclaimer of property interests.
If you’re not sure that the court will grant you a waiver, you can consult A People’s Choice for legal document service concerning the same. If the conservator is also the deceased conservatee’s successor trustee or executor, waiving the final accounting might be impossible due to the additional power of appointment.
What Happens When the Conservator Is Also a Personal Representative?
A conservator is often also a close loved one of the conservatees. As such, they may experience accrual of duties from the court. Apart from taking care of the incapacitated individual, the conservator may also become a personal representative for the estate.
If the conservator receives the power of appointment to the executor or personal representative of the estate beyond the original petition, their responsibilities continue. The conservator is then a personal representative with durable power to act in a fiduciary capacity and make key financial decisions for the estate.
The Transition from Conservator to Personal Representative
If you are both conservator and personal representative, you’ll be responsible for additional duties that may include:
- Attorney for health care
- Demand for bond and oversee the conditions of bond
- Choice of law
- Employment of agents
- Guardian ad litem
- Discretionary powers, and
- Presentation of claims
Bear in mind that there are safeguards in place to prevent a personal representative from using a conservatee’s assets for personal gains or disclaimer of power held. For instance, the personal representative cannot ask the court to grant them relief from final accounting so that they can benefit from the assets left behind in financial institutions. In most cases, a waiver for the final accounting only gets granted when there are agreements among successors concerning the issue. This implies that you must first consult the potential heirs concerning your request for a waiver
Is Conservatorship Valid After Death? File Your Paperwork with A People’s Choice Today
If a person suffers from physical or psychological hardship, they often cannot manage to perform most personal duties. Providing conservatorship to incapacitated individuals helps them lead normal lives.
As a relative or close friend to such a person, you may want to know the procedures required for them to receive a conservator. To learn more about the requirements and the necessary paperwork for conservatorship, it’s a good idea to consult a legal document assistant. At A People’s Choice, we can help in answering any question you have about conservatorship in California without the pricey attorney fees. To get started, you can contact us here or call us at 800-747-2780.
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