A general conservatorship usually continues until the conserved person (called the “conservatee”) dies. Courts and conservatorship attorneys avoid the term “permanent conservatorship” because it suggests that the conservatee will never regain their independence. However, in most cases—particularly those involving elderly conservatees—that’s exactly what happens. The article addresses the termination of conservatorships upon the death of a conservatee.
Issue 1. How does a conservatorship end after the conservatee has died?
According to California Probate Code §1860(a), “A conservatorship continues until terminated by the death of the conservatee or by court order.” Thus, a conservatorship terminates by operation of law upon the conservatee’s death.
However, 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.” California Probate Code §2467.
Issue 2. Is a final accounting required?
A final accounting, to be composed in two parts, is still required under California Probate Code §2620(b) for conservatorships of the estate:
The final accounting of the guardian or conservator following the death of the ward or conservatee shall include a court accounting for the period that ended on the date of death and a separate accounting for the period subsequent to the date of death.
Also, California Rule of Court §7.1052(c) states that
“[a] conservator of the estate whose administration is terminated by operation of law or by court order must file and obtain the court’s approval of a final account of the administration.”
The court continues to have jurisdiction over the conservatorship after the death of the conservatee for the purposes of “settling the accounts of the guardian or conservator or for any other purpose incident to the enforcement of the judgments and orders of the court upon such accounts or upon the termination of the relationship.” California Probate Code §2630.
Issue 3. Can the final accounting be waived?
According to California Conservatorship Practice (CEB), “no express statutory authority exists” regarding waiver of final accountings. §21.59A. It continues,
“If the interested persons have capacity and do not want to incur the expense and delay of an accounting, there appears no reason that one should be required.”
However, the guide also notes that in the case of a probate administration,
[I]f the person serving as personal representative was also the conservator, fundamental fiduciary principles prevent that person from using the position of personal representative for his or her own benefit by relieving his or her obligation to account as a conservator. If the personal representative and the conservator are the same person, the court may allow a waiver of the conservatorship accounting only if the waiver is also executed by the beneficiaries of the former conservat[ee]’s estate. (California Conservatorship Practice (CEB) §21.59A)
Therefore, if the conservator is also the deceased conservatee’s successor trustee or executor, waiving the final accounting might be improper.
Local rules differ widely throughout the Bay Area, so conservators in San Francisco may have a different procedure than conservators in Walnut Creek or another city in Contra Costa County. Alameda County, in particular, has unusual ex parte procedures that affect conservatorships, probate, trust and estate disputes, and elder abuse cases arising in Oakland, Berkeley, Livermore, Pleasanton, Castro Valley, Dublin, Fremont, and other cities in Alameda County.