WHEN TO CONSIDER A CONSERVATORSHIP
One of the most difficult decisions in life is the decision to finally seek a conservatorship over one of your loved ones. Conservatorships are court order protective measure wherein a conservator is ordered to care for a person and/or that person’s estate when the conservatee, due to some serious disability, impairments, cannot adequately care for themselves or the financial affairs. The creation of a conservatorship transfers the duties and responsibilities of managing the conservatee’s personal care and financial affairs to another. Because the conservatee gives up. The central issue is whether the conservatee has legal capacity to care for his or her own care.
A conservatorship is also an effective tool in helping someone who is unable to resist fraud, or undue influence of another.
An elder may also voluntarily agree to a conservatorship in order to assist pursue a claim for Elder Abuse. (See Elder Abuse on this Site.)
WHEN WELL SPOUSE NEEDS INCAPACITATED SPOUSE’S CONSENT REGARDING COMMUNITY PROPERTY
The California Probate Code also provides a mechanism to authorize transactions when an incapacitated spouse must consent. For example, there often are situations where spouses hold community property which must be refinanced, transferred, or sold. But, as community property, the well spouse would normally need the written consent of the incapacitated spouse who may be hospitalized, unconscious, mentally incapacitated, etc. A Probate Code, Section 3100 Petition will allow the court to authorize such transactions and allows the well spouse manage the community property. 3100 Petitions often do not require a formal conservatorship.
DUTIES AND RESPONSIBILITIES OF CONSERVATOR
Once appointed, the conservator has a duty to act in the best interest of the conservatee. The conservator over the person must tend to the “care, custody,and control of, and has charge of the education of” the conservatee, including but not limited, the daily plan of the conservatee like meals, clothing, living arrangements, even where the conservatee will live.
Conservators of the estate will be issued letters which allow the conservator to control the conservatee’s financial affairs as necessary for the comfort and support of the conservatee, including applying estate income to the support and maintenance, rents, food, medical, pay debts of the conservatee, invest funds with court approval, sell real and personal property.
The conservator may also seek instruction from the court on these issues. aS
As with a general probate matter, the conservator must provide an accounting one year after the date of appointment and at least every 2 years thereafter.
The conservator is entitled to just and reasonable compensation from the conservatorship estate. Factors considered in granting, the size of the estate, necessity of services performed, value of services performed, time spent.
OTHER TYPES OF CONSERVATORSHIPS
Limited Conservatorships: Limited Conservatorships are generally used for adults with developmental disabilities (such as mental retardation, epilepsy, cerebral palsy that began before the age of 18) who cannot completely tend to their own needs but who currently do not need the extensive and full use of a general conservatorship.
Lanterman Petris Short (LPS) Conservatorship: LPS Conservatorship are very limited conservatorships for those who are gravely disabled, in need of treatment but are unwilling or incapable of consenting the a conservatorship.