- What is a Conservatorship
- Is a conservatorship necessary?
- Standard for obtaining a conservatorship
- The conservatorship process
- Contested Сonservatorships
- Contested Conservatorships Are Often Costly
If a loved one becomes incapacitated, can no longer make financial decisions, or is vulnerable to undue influence or elder abuse, a conservatorship proceeding is often the best option. We can help you establish (or oppose) a conservatorship to preserve your family’s well-being.
What is a Conservatorship
It is a court proceeding designed to protect elders or dependent adults who may be unable to care forthemselves or to resist fraud or undue influence. In a typical case, a family member or friend (called the “petitioner” ) files a petition with the court in which he or she asks to be named the “conservator” for the elder, who is referred to as the “proposed conservatee” . A “conservator of the person” is a person granted authority by the court to make decisions regarding the personal care of the conservatee. The conservator of the person typically makes decisions about the conservatee’s medical affairs, living arrangements, and social life. A “conservator of the estate” is granted the authority to make financial decisions for the elder.
One person can serve as both the conservator of the estate and conservator of the person, although sometimes it is prudent or convenient for different individuals to serve in these roles.
Barr & Young conservatorship have represented clients from Walnut Creek, San Francisco, and throughout the Bay Area in:
- Temporary Conservatorships
- General Conservatorships
- Contested Conservatorships
- Removal of Conservators
Is a conservatorship necessary?
A conservatorship may not be necessary if the person needing care has a comprehensive estate plan that includes a trust, an advance health care directive, and a power of attorney for financial affairs. However, even if these documents are in place, a conservatorship is sometimes necessary when the person needing care will not cooperate with the trustee or agent, when there is concern that the documents might be revoked or amended, or there is a threat of undue influence or fraud.
Standard for obtaining a conservatorship
Probate Code § 1801 states the elements that must be established to obtain a conservatorship:
(a) A conservator of the person may be appointed for a person who is unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter, except as provided for the person as described in subdivision (b) or (c) of Section 1828.5.
(b) A conservator of the estate may be appointed for a person who is substantially unable to manage his or her own financial resources or resist fraud or undue influence, except as provided for that person as described in subdivision (b) or (c) of Section 1828.5. Substantial inability may not be proved solely by isolated incidents of negligence or improvidence.
(c) A conservator of the person and estate may be appointed for a person described in subdivisions (a) and (b).
The petitioner must prove these elements by clear and convincing evidence, which means he or she must show that it is highly probable that the proposed conservatee needs a conservator. This is a higher burden of proof than is typically applied in civil cases.
The conservatorship process
After the petitioner files the necessary pleadings, the conservatee must be served with the court papers , and is typically required to attend the first court hearing. This can be emotionally difficult when the case involves a child trying to protect a vulnerable parent, as most children are reluctant to make an elderly parent appear in court. Fortunately, the conservatee does not have to attend the first hearing if a doctor declares under penalty of perjury that the conservatee is medically unable to attend. In every case, the conservatee must be personally served with the petition.
When a new case is filed, a court investigator is assigned to interview the proposed conservatee, his or her family, and other interested parties and witnesses. The court investigator files a report with the court with are commendation about whether a conservatorship is appropriate. The court investigator’s report is not conclusive, but many judges rely heavily on the investigator’s recommendations.
The petitioner must file a capacity declaration, which is a standard form completed by a doctor whohas examined the propsed conservatee. The doctor evaluates the proposed conservatee’s mental functionsin four areas: “alertness and attention”, “information processing”, “thought disorders”, and “ability to modulate mood and affect”. The doctor will also opine on the proposed conservatee’s capacity to give informed consent to medical treatment”.
Like most civil disputes, these cases usually settle before trial. We regularly participate in mediation on behalf of our clients to avoid the stress and expense of trial.
A “voluntary conservatorship” is one in which the elder agrees that he or she should be conserved. Most voluntary conservatorships can be established within a few months at a reasonable cost.
In a “contested conservatorship” , either the elder or a family member or friend objects to the conservatorship. The “objector” often argues that there is no need for a conservatorship—that the elder can care for him or herself. Even when the parties agree that a conservator is necessary, they often disagree about who should serve in that role.
In a contested proceeding the court will usually appoint an attorney to represent the proposed conservatee if he or she has no attorney. If the case does not settle, the elder has the right to a jury trial to determine whether he or she should be conserved.
The court will also often appoint an independent doctor, typically a neuropsychologist or neuropsychiatrist, to examine the proposed conservatee and render an opinion on some of the disputed issues. These issues might include whether the proposed conservatee needs a conservator of the estate or person, and whether he or she has the mental capacity to execute an estate plan or sign a contract. These doctors are often called “730 experts” because California Evidence Code Section 730 is the source of the court’s authority to appoint experts to investigate and render a report.
Contested Conservatorships Are Often Costly
Contested cases can be expensive and emotionally difficult proceedings, with children litigating against parents or among themselves. They can quickly become expensive because three attorneys are often involved: one for the petitioner, one for the objector, and one for the proposed conservatee. These attorneys may apply to the court to be paid with the conservatee’s funds. In addition, the contesting parties often conduct extensive discovery, including obtaining medical and banking records and deposing witnesses. Finally, each side may hire its own expert witness (usually a neuropsychologist or neuropsychiatrist) to testify about the proposed conservatee’s mental capacity and ability to resist undue influence or fraud. Our conservatorship attorneys have been involved in many of these cases and specialize in contested matters. Our objective is to protect the elder and prevent his or her estate from being depleted by unnecessary legal fees.
Barr & Young represents clients throughout Northern California, including Danville, Walnut Creek, San Francisco, Pleasant Hill, Livermore, and Oakland.