Conservatorships

The Not At All Easy Solution

In California, all adults are considered capable of handling their own affairs unless a judge determines otherwise. Should a judge decide otherwise, the judge may order a conservatorship of the body or a conservatorship of the estate, or both. In this legal relationship the person needing help is called the conservatee and the person providing the help is called a conservator.

Inability to handle complex matters such as contracts, banking, real estate transactions and taxes, does not mean the person needs a conservator. If the persons assets are in a trust, the trustee can help this person. If their assets are not in a trust, it would be better to have their primary-care physician determine their capacity to determine if they have testamentary capacity and are able with assistance to put their property in trust.

Conservatorships are established on a case-by-case basis for adults with mental impairment, physical impairment, or both. An adult who has a physical impairment but is mentally competent may be a candidate for a conservatorship of the body, while maintaining control of their estate. A mental disorder which would severely interfere with an adult’s ability to know where they are, when it is, what they own, who their family members or friends are may be a conservatee-candidate for a conservatorship of the estate. A person suffering from disabilities that makes it difficult to manage , limit their ability to communicate, to understand their actions and remember the events in their life, also may be a candidates for a conservatorship of the body and the estate.

Fortunately for the conservatee, conservatorships are subject to termination, if the conservatee regains their mental health, have overcome their physical impairments, and have returned to an adequate level of understanding and the physical ability to function without a conservator’s assistance, may have their conservatorship terminated.

Conservatorship Process Functionaries:

Identifying and dealing with the people who make the system limp along.

The Conservatee Candidate: That is the person who may be conserved. While you may be the person who asks for the conservatorship you do not decide if the person needs to be conserved. That is done by a team of investigators and doctors who report to the court on the persons many possible abilities and current disabilities.

The Conservator: The person appointed by and monitored by the court to perform the duties of conservator. A conservator is a fiduciary, which means the conservator owes the conservatee the highest possible legal duty. The conservator must put the conservatee’s needs before those of the conservator, even if doing so would harm the conservator.

Courtroom Bailiff: The person who really means it when they say, “be seated, stand and be quiet,” these are all orders, not suggestions.

Courtroom Clerk: This professional is the gatekeeper between you and the judge. Abuse the door gatekeeper and they will lock the gate on you. Charm, good spelling, the right documents, and obvious respect go far with clerks, as does listening carefully to what they tell you.

Probate Judge: This is the person who is focused on getting the conservatee the very best deal and everything that the conservator owes to the conservatee. Usually tolerant of all conservators and their lawyers, bad behavior will change that instantly.

Conservator’s attorney: You must hire an attorney with probate experience, preferably one who has handled a conservatorships before, as this process is difficult for lawyers who are educated and trained in probate processes. If you think you are a quick learner and savvy enough to be unrepresented as a conservator, then you are not fit to serve as one because, this is all about the conservatee getting the best legal help, financial assistance, and health care that they can afford, not a well-meaning neophyte trying to save money.

Conservatee’s attorney: The Public Defender will be the conservatee’s lawyer. They always try to put the best interests of the conservatees foremost.

Court Investigator: Thorough, insightful, analytical professionals may be the best description of the court investigator. They will interview anyone who they believe has anything to do with the housing, feeding and medical care the conservatee. They write down everything anyone says, none of it is off the record and it better be true.

In conclusion:

Conservatorships are an extreme last resort, and they should be the last solution considered, after all others have failed. The conservator must realize that this process puts what is best for the conservatee first, even if it is difficult for the conservator.