In California, conservatorships are for adults, and guardianships are for minors. Guardianships and conservatorships have many aspects in common — chiefly that they are both care arrangements designed for people designated as incapacitated because of mental infirmity or youth. The conservator or guardian makes personal and financial decisions for the incapacitated person.
Generally, the incapacitated person must submit to the decisions of the conservator or guardian, though they may, and often do, object through their court-appointed counsel. The extent of the authority of the conservator or guardian depends on the nature of the conservatorship or guardianship, and the specific order of the court delineating the scope of the conservator or guardian’s powers.
When Is Guardianship or Conservatorship Needed?
Guardianships are most often granted when a minor has lost both parents or when one or both parents cannot exercise responsible parental supervision of a minor child. A conservatorship is appropriate for adults who cannot effectively make responsible financial or personal decisions, usually because of cognitive impairment from age or dementia, mental illness, or developmental disability. Incapacitated people typically need help making decisions about finances, medical care, safety, food, clothing, living arrangements, and so forth.
Some arrangements grant near-total power to the conservator or guardian, but many reserve certain powers to the conservator or guardian. And in most cases, courts are sensitive to the wishes and opinions of the conservatee or minor, even after a conservatorship or guardianship is established.
It is important to note that a conservatorship is usually unnecessary if the incapacitated person has an estate plan. Living trusts, durable powers of attorney and advanced health care directives name someone to make personal and financial decisions when the creator of the estate plan becomes incapacitated. When someone has created an estate plan, a conservatorship is usually only necessary if the creator of the plan revokes it, resists the guidance of the trustee or agent, or the family is fighting for control of their parents’ money or person.
What Is Conservatorship?
A conservatorship is a court proceeding in which a court-appointed conservator exercises authority over an incapacitated adult (“conservatee”). A court or jury will decide whether someone is incapacitated, typically after considering the opinion of a doctor or psychologist. No single factor is dispositive, even if a doctor diagnoses the proposed conservatee with Alzheimer’s disease or cognitive impairment.
A general conservatorship lasts until the conservatee dies, or, in rare circumstances, the court terminates the conservatorship. (For this reason, some people refer to general conservatorships as “permanent conservatorships”, though courts and most lawyers are reluctant to do so because the word “permanent” can be disheartening for the conservatee.) Conservatorship over the person includes authority over personal decisions such as medical care, living arrangements, diet, and even marriage. Conservatorship over the estate consists of authority over the conservatee’s finances. (If the conservatee has a living trust, the conservator of the estate has no authority over assets held in the trust.)
Conservatorship proceedings can spark significant controversy among family members and friends. Please refer to the case of pop star Britney Spears for an example of a California general conservatorship over the estate that has drawn quite a bit of criticism.
Limited conservatorships are used for people diagnosed with developmental disabilities, typically autism, but sometimes for those with a low IQ or other conditions.
The scope of the authority of a limited conservator varies greatly because the ability of developmentally disabled persons varies greatly. A high-functioning person with autism, for example, may be able to make responsible decisions most of the time but need assistance with a few significant decisions. The procedure for obtaining a Limited Conservatorship varies greatly from county to county, but it is typically the Regional Center for the disabled in each county that makes the initial determination that a person is developmentally disabled. Once a limited conservatorship case is filed, the court will typically appoint a public defender, county counsel, or private attorney as counsel for the proposed conservatee.
What Is Guardianship?
A guardianship, once established, operates much like a conservatorship, except that the subject of the guardianship (“ward”) is a minor. This might happen if both parents are dead or a family member or friend (typically a grandparent or sibling) is convinced that a child’s parent or parents are exercising (or failing to exercise) their parental rights in a way that jeopardizes the minor’s health or safety.
Parents can have some control over who becomes their child’s guardian by nominating a guardian in either a will or a guardianship nomination. In these documents, the parent, or parents nominate a person or couple to exercise parental authority over their children if they are deceased or incapacitated. Every parent should make this nomination, and if you do so the court will give considerable weight to your nomination. However, your nomination is only that – a nomination; it is not binding on the court. If guardianship is necessary, a notice of the nomination and the hearing on the guardianship will be sent to the child’s relatives and they can appear at the hearing and object to the nominated guardian’s appointment. If you do not select a guardian, the probate court will do so for you–with no knowledge of who you believe would be best for your children.
Temporary Guardianships and Conservatorships
In emergency situations, the court may appoint a conservator or guardian for a limited time. Be aware, however, that obtaining a temporary conservatorship is not an easy, quick, or inexpensive process, and often requires more legal work than applying for a general conservatorship.
Frequently Asked Questions (FAQs)
Who can be appointed as a conservator?
Will a court consider the child’s choice of a guardian?
What is a Lanterman-Petris-Short (LPS) conservatorship?
A Lanterman-Petris-Short (LPS) Conservatorship exists to help people with mental illnesses listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM). Although the process varies widely, a local government agency typically begins the process. It often takes place over the objection of the conservatee, and sadly, takes place only after parents or siblings have repeatedly begged the county to step in to protect a mentally ill and often homeless family member. Sometimes this conservatorship allows the county to involuntarily institutionalize a conservatee.
Contact Us to Get Help with Your Guardianship or Conservatorship
The conservatorship and guardianship attorneys at Barr & Young have been doing this for so many years. Contact us online or call us at (925) 660-7544 to arrange a case consultation where we can listen to your story and answer your questions.