Conservatorship as a protective measure
In many cases, the problems for which our clients seek assistance could have been minimized or even eliminated entirely through earlier intervention. Thus, when possible or necessary, aside from recovering lost monies and property for seniors who already have fallen victim to elder or fiduciary abuse, we also help our clients implement protective measures — conservatorships (sometimes known as “guardianships” in other states) — to insulate their loved ones from any further harm or undue influence.
Of course, at times the question of whether a conservatorship is necessary becomes a viciously contested issue, with the elder’s ultimate well-being truly hanging in the balance. In such instances, we provide the determined and aggressive advocacy crucial to obtaining the right result for the elder and, thus, our clients.
What a conservatorship is, and what it isn’t
A conservatorship transfers decision-making authority from an adult to someone the court appoints. Because that is a serious step, the distinctions matter:
- Of the person, or of the estate, or both. A conservator of the person makes decisions about care, housing and medical treatment. A conservator of the estate manages finances and property. The two are separate appointments and need not be held by the same person.
- General or limited. A limited conservatorship is designed for adults with developmental disabilities and leaves the conservatee with as many rights as possible. Only the powers the court expressly grants are transferred.
- Probate or LPS. The conservatorships this practice concerns are probate conservatorships. An LPS conservatorship, used for grave disability arising from a mental health disorder, operates under an entirely different statute and cannot be initiated by a family member — those referrals come only from designated treatment facilities.
- It must be the least restrictive option that works. A court will not appoint a conservator where a less intrusive arrangement would meet the person’s needs. That is often the central battleground in a contested petition, and it is why the alternatives below matter.
A conservatorship also is not the only route, and frequently not the fastest. Where the immediate problem is a person exerting influence over an elder, an elder abuse restraining order can be obtained on an expedited basis and can, in appropriate circumstances, restrain someone from making or facilitating further changes to the elder’s estate plan — without any adjudication of the elder’s capacity, and without removing the elder’s own authority over their affairs. In other situations a properly drawn power of attorney, a trust amendment or the appointment of a private professional fiduciary will accomplish what is needed.
The proposed conservatee’s rights
A petition is not a formality, and the person whose autonomy is at stake has substantial protections. Capacity is presumed; the burden rests on the petitioner. A court investigator interviews the proposed conservatee and reports independently to the court. The proposed conservatee is entitled to be represented, and to attend and object.
The right to a jury trial belongs to the proposed conservatee personally. California courts have held that counsel cannot waive it on the client’s behalf — the waiver must come from the proposed conservatee. Where the record does not show that, an order can be vulnerable on appeal.
Counsel’s own obligations in these proceedings should not be overlooked. In one published decision a probate court surcharged an attorney retained by an elderly client with dementia, where he had safeguarded neither her wellbeing nor her financial resources and instead had put his own financial interests ahead of hers. We are conscious that these cases turn on the best interests of the proposed conservatee alone, and no one else … and we advise accordingly.
When a conservatorship is contested
Contested petitions tend to take several recognizable forms:
- The protective petition. A family member seeks a conservatorship, or an emergency temporary conservatorship, because someone is exerting influence over an elder or draining their assets. Speed matters, and so does the evidentiary record built before filing.
- The opportunistic petition. A conservatorship is sought not to protect the elder but to seize control of their finances, or in retaliation against a family member who has raised concerns.
- Disputes within an existing conservatorship. Objections to inventories, appraisals and accountings, petitions to remove or replace a conservator, and disputes over fees.
- Restoration of capacity. A conservatorship is not necessarily permanent. Where a conservatee has recovered, or where the appointment was never warranted, the arrangement can be terminated.
Two further points arise often enough to mention. A conservator of the estate can ask the court to approve estate planning steps on the conservatee’s behalf through the substituted judgment procedure, and an instrument approved that way is expressly outside the presumption that would otherwise attach to certain donative transfers. And where an appeal would otherwise freeze a transaction the estate cannot afford to lose, the Probate Code allows the court to direct that it proceed notwithstanding the appeal — a provision tested in California’s most publicized conservatorship litigation.
A conservatorship also does not stand alone. Where the conduct that made it necessary involved abuse, the Elder Abuse Act remedies still may be available, as well (and may be pursued by the conservator).
Talk with us about your situationWe act for families seeking to protect a vulnerable loved one, for proposed conservatees opposing petitions that are unnecessary or self-serving, and for professional fiduciaries and conservators in the administration of appointments already made. We are also retained as associate or litigation counsel by other attorneys for matters in this highly specialized area. Contact us or call 888-404-0111 for a confidential discussion.
The law behind this practiceWe do our best to maintain the governing authority on our site, current and annotated: the statutes that create these proceedings and remedies, and the California appellate decisions that shape them — including Conservatorship of Kevin A. on the jury trial right, Conservatorship of Moore on counsel’s obligations, In re Conservatorship of Hume on the burden of proof for objections to an inventory and appraisal, and Sterling v. Sterling on capacity-based removal and proceeding despite an appeal. The Judicial Council’s Handbook for Conservators, which every newly appointed conservator in California must be given, is the plainest statement of what the role actually requires.