California Conservatorship

photo of a client and an attorney discussing conservatorship

A conservatorship is a legal proceeding brought when an adult is no longer able to take care of their own affairs. The conservatorship can be set up for the "person" and for the "estate". The conservatorship for the person primarily deals with questions concerning healthcare and residency. The conservatorship of the estate is concerned with the income and assets of the estate.

In order for a conservatorship to be established, a petition is filed naming a proposed conservator over the incapacitated person (also known as the conservatee). The court then appoints a private attorney as the attorney for the incapacitated person and also assigns a county employee as an investigator. The jobs of the court appointed attorney and investigator are to investigate the circumstances concerning the incapacitated person and to make recommendations to the court as to whether a conservatorship is necessary.

If someone is incapacitated it does not necessarily follow that a conservatorship is necessary. A conservatorship is normally established because some problem has arisen where someone needs to be named to act on behalf of the incapacitated person.

If an incapacitated person had created a revocable trust and the assets were in the revocable trust, a conservatorship of the estate might not be required. This is because upon the incapacity of the individual setting up the trust, the successor trustee is able to handle transfers of assets. Likewise, if the incapacitated person has given a durable medical power of attorney, then whoever they named to make healthcare decisions for them may do so without a conservatorship.

If a conservatorship is established, the conservator has a fiduciary duty to the incapacitated person which includes to properly account for all of the assets and not to engage in any action where the conservator benefited at the expense of the incapacitated person. The court will require the filing of a care plan showing the anticipated care for the incapacitated person. The court will order that an accounting be provided by the conservator to show how funds are being managed and spent. This accounting is normally due one year after the conservator is named. A bond will also be required for the conservator as protection for the incapacitated person. A bond pays the estate if any misuse or misappropriation of assets occurs. The conservatorship will continue until the incapacitated person regains their capacity or is deceased.

There is significant expense in establishing a conservatorship. The court appointed attorney can be paid by the county if there are insufficient assets, but if there are assets in the estate, then the court appointed attorney is normally paid several thousand dollars, the filing fees, court investigator fees, and service fees is typically about $1,000.00. The attorney for the conservator is also paid. Fees running $8-$10,000 to establish a conservatorship are typical. These fees are subject to court approval and paid out the conservatorship estate.