By: James Filippi
What are the Steps to Being a Conservator?
Did you know that there are around 1.3 million active cases of guardianship and conservatorship in the US? While it may often hit the headlines in the mainstream media, conservatorship does serve an essential purpose. But do you know the responsibilities of a conservator?
The process is not as clear-cut as it may sound. Read on as we discuss what happens when you are appointed a conservator.
What Is a Conservator?
A conservator is someone appointed to be a protector of a person. If the person is injured or unable to care for themselves, the conservator decides what is best for their welfare and financials, such as their pensions, income, taxes, and estate. Conservatorship is the actual court case to determine this, and it may be appointed to an individual or company.
The name may differ depending upon what state the case is in and some of the laws surrounding it. However, in Rocklin, California, they take the name of conservators. It differs from guardianship, which deals with the legal authority to provide care to minors.
Pros of a Conservatorship
Conservators are always under regular court supervision. This means that they cannot mismanage the conservatee’s finances or use the position for personal gain. This is often done through the provision of regular, detailed reports.
Major decisions also require court approval. This could include the selling of any real estate, assets or making significant decisions regarding healthcare.
To further safeguard the conservatee’s estate, the conservator must post a bond. The premiums come from the assets managed. This protects them from misuse.
How Does a Court Decide Between a Guardian or Conservator?
Each case is reviewed individually and determined based on the factors. However, much of it comes down to how the person becomes incapacitated. Generally, if a person has financial assets but is incapable of managing them, a conservator is required.
For example, if a person with Alzheimer’s needs help, they may go to court. If that individual had multiple income streams and assets, a conservator is a sound choice.
Types of Conservatorship
When you are in the process of being appointed a conservator, it helps to know what type you are going to be. There are several types, each with slightly different rules and regulations. Below are examples of each kind.
General
General is the most common type of conservatorship, typically used when adults can no longer handle their affairs. This may be through an injury, illness, or accident. It covers finance and personal affairs.
Limited
Limited is similar to general, though it is specifically concerned with people who have developmental disabilities. This means that they may be able to manage finances in the future, though not at the current moment.
Probate
Probate is concerned specifically with the will and estate planning of a person. Probate conservatorship can be granted over the individual or the estate.
When granted the conservatorship of the estate, the person can make financial decisions on what they will leave behind and to whom for the conservatee. When they are probate conservators of the individual, they can use their granted powers to protect them if they cannot do so themselves.
Financial
Financial is like a general conservatorship but explicitly handles the financial aspects of the person. It is usually appointed when an older adult can no longer manage their finances and is at risk of facing elderly abuse.
Mental Health
Often known as the Lanterman-Petris-Short Act (LPS), this conservatorship is specific to the state of California. It protects people who have temporary bouts of mental health problems that render them unable to manage affairs, including financials. The LPS Act allows them to regain control if and when the time is right.
The appointments start at 30 days but can then be extended in yearly periods. While this is specific to California, other states may have similar acts under different names.
What Happens In the Court Process?
Conservatorship proceedings begin with evidence regarding the conservatee’s mental state and ability to govern themselves. The judge will then decide if the person needs a conservator. Primarily, this will be a spouse or a mature adult child.
If multiple people put themselves forward for the job, the judge will follow state laws regarding the most suitable candidate. While it gives preferences to spouses and children, the judge may appoint someone else if he believes the candidates will not act in the person’s best interest.
However, they are given preference as they are closer to the individual and often have a better idea of what they want. In addition, one or more people may object to the conservator’s appointment, including family members, friends, and even the proposed conservator themselves. To do this, they must file papers with the court and attend a legal hearing.
Ending a Conservatorship
The court will decide when the conservatorship ends and issue an order to complete it legally. It could happen when an individual is deemed capable of regaining control of their finances or when the assets are depleted or no longer in need of management.
It can also occur due to the individual being deceased. In some circumstances, the conservator may no longer be able to manage the duties, in which case the conservatorship passes to someone else.
Taking on Responsibility
In summary, if you are appointed as a conservator, it will be for a reason. A judge and others will have deemed you as the individual most likely to act in the other person’s best interest. Keep this in mind if you feel overwhelmed by the prospect.
If you need help or guidance with estate planning in the Rocklin, California area, Filippi Law can answer any questions you may have. We have legal services ranging from managing trusts to creating personalized wills. Contact us today to discuss your needs and let us help you safeguard your assets starting right now.
Filippi Law Firm, P.C., provides legal services in estate planning, probate, trust administration, trust litigation, and personal bankruptcy in the greater Sacramento area, with a focus in Rocklin, Roseville, Lincoln, and Granite Bay. Give us a call at (916) 333-7910 or fill out the contact form to get in touch with our office. Consultations are free, and they can be done over the phone, via Zoom, or in person at our office in Rocklin. Prepare for your future and work with the best estate planning attorneys today.
