Conservatorship California

In California, a conservatorship is a legal arrangement. Conservatorships are created for disabled adults, and elderly people. Adults who are mentally disable, ill, or physically disable may also have a conservator.

This is a practice guide for lawyers about probate conservatorships in the state of California. If you’re not a lawyer, please contact a lawyer to assist you with conservatorship in California. This conservatorship guide is only suitable for people over the age of 18. If you are looking for information about minors, then see guardianship.

Please read our DISCLAIMER.

What Is Probate Conservatorship?

This is a court proceeding where the judge will appoint a conservator to care for another adult who cannot take care of themselves or their finances. The Court will only appoint someone who is responsible for being a conservator.

The two types of conservators are:

• A person who cares for someone when the judge deems the person unfit to care for themselves.
• A person who manages the financial matters of another person, such as collecting income and paying bills.

Are Conservators of Person Automatically In Charge of Their Finances

No. These are two separate petitions. You can file both at the same time, but both petitions need to be approved.

Is Probate Conservatorship Different From Mental Health Conservatorship?

Yes, they are very different. An LPS (mental health) conservatorship is only given if someone is very mentally ill. They will usually be placed in a mental facility and given behaviour-controlling drugs.

However, someone who is suffering from dementia may be granted a probate conservatorship. Read more about LPS Conservatorships.

What Is the Difference Between Probate Conservatorship and Limited Conservatorship?

Limited conservatorships are reserved for people who have developmental disabilities. The Court limits the powers of conservators in limited conservatorships. Read more about limited conservatorships.

Who Can File For Conservatorship?

Almost anyone can file. Relatives, spouses, government agencies, friends, or other interested party. The potential conservator can file, and so too can the conservatee, though that is rare.

Who Can Be Appointed As a Conservator?

The law has a preference system in place for picking a conservator. If the person at the top of the list does not want to be a conservator, they can nominate another person. The preference is:

• Spouse
• Child over 18
• Parent
• Sibling
• Any other relative/close friend the law deems fit
• Public Guardian

What If No one Is Qualified To Be a Conservator?

If no one is qualified to be a conservator, you can ask to appoint a private, professional fiduciary instead. This service will come with a fee. If the conservatee cannot afford the fees, then you could ask for a Public Guardian to be appointed. The Office of Public Guardian will charge fees too, but these are much lower and based on the income of the conservatee. The County Department of Aging and Adult Services may also be able to provide some help.

When Should the Public Guardian Be a Conservator?

The Court may appoint a Public Guardian as a conservator if someone makes a referral. The referral must be made by one of the following:

• Relatives
• Neighbors
• Adult Protective Services
• Police officer
• Doctor
• The Court
• Another interested party

If you believe there is elder abuse or financial abuse, report it to Adult Protective Services on 1-800-414-2002.

Can I Make Medical Decisions For The Conservatee?

If you are the conservator of the estate, you cannot make medical decisions. If you are the conservator for the person, then you can supervise the conservatee’s normal medical care as long as you have the conservatee’s permission.

In the case of a medical emergency, you may supervise the conservatee’s care, whether they want you to or not. The Court may grant power of informed consent to the conservator if the conservatee is not making rational medical decisions. The form for this is Capacity Declaration—Conservatorship form GC-335 .This will give the conservator power to authorise medical treatment. If the conservatee is unable to make an informed decision because of dementia or a stroke, then their doctor can fill out a declaration for the Court to make the process easier. You must ask the Court for permission to commit the conservatee to a care facility or to administer drugs.

Can I Make Estate Planning Decisions For the Conservatee?

You can control the conservatee’s finances if you are the conservator of the estate. However, there are very few instances when the Court will allow you to make the conservatee’s will:

• The conservatee is too ill to make estate planning decisions.
• The conservatee has someone influencing or taking advantage of them, and that was the reason for the conservatorship in the first place.

As per Section 2580 of the Probate Code , the Court can grant power of substitute judgement to help the estate planning. The Court may also grant power to make gifts and change things like insurance policies, trusts, and sign contracts.

A petition for substituted judgement may be presented by a family member or interested person. A copy must be sent to the people you gave notice to for the conservatorship hearing as well as the beneficiaries of the current estate. Probate Code Sections 2582 and 2583 will give you more information about the petition and how to fill it out.

Call a lawyer for help preparing the necessary documents. To find an attorney, check either the Silicon Valley Bar Association’s website or the Santa Clara County Bar Association .

What Doe the Court Investigator Do In Conservatorship Cases?

A court investigation is a neutral party that tells the judge the facts in the case. They will speak to both you and the conservatee.

The court investigator will meet with the conservatee and give them information about the conservatorship process and how it will affect them. They will also explain:

• What will happen during the hearing
• The conservatee’s rights including a right to a lawyer and to trial by jury.

If the conservatee does not understand the process, then the court investigator will appoint an attorney to represent them. They will also review the forms the petitioner sent in and look at the conservatee’s medical records. The court investigator will write a confidential report for the Court, a copy of which will be sent to the conservator and their attorney. Their recommendations will also be held in high esteem by the judge.

Probate Code 1826 has more information about the court investigator and their duties.

Does The Court Investigator Stay In Touch With the Conservatee?

The court investigator will follow up with the conservatee after a year to ensure the conservator is fulfilling their responsibilities. They will then visit every two years to check on the conservatee. These visits may be more frequent if deemed so by the court investigator.

The court investigator will write a report if necessary and request that the judge appoint the conservatee a lawyer. This is the beginning of the process to remove the conservator. A report may also be necessary if:

• The conservatee is being moved from the conservator’s residence
• The conservator is asking for additional powers, especially medical powers
• The conservator wants to sell the conservatee’s home

The court investigator will explain the process and what these decisions will mean for the conservatee. That will ensure the conservator is not abusing their power over a vulnerable person.

When Can I Establish a Probate Conservatorship?

A probate conservatorship can only be established if there is no other way to look after the conservatee’s needs.

A probate conservatorship is not appropriate if the conservatee:

• Can cooperate with plans set by professionals
• Can sign a power of attorney and is willing to do so
• Only receives welfare or social security as income. The social security administration can help you to manage payments.
• Has a spouse who can manage their finances because of joint accounts.

How to do it yourself  conservatorship

Please read our DISCLAIMER.

Step 1	Fill out the forms. The forms are easy to access through the links below. Many are also in bookstores and stationery stores or the Self-Help Center. They can also be accessed on the Judicial Council website: www.courts.ca.gov/. On the dropdown menu, choose “Probate-Guardianships and Conservatorships.” You will need to fill out all of the below forms: GC-310  Petition for Appointment of Probate Conservator GC-020  Notice of Hearing GC-312  Confidential Supplemental Information GC-320  Citation for Conservatorship GC-348  Duties of Conservator GC-314  Confidential Conservator Screening GC-340  Order Appointing Conservator GC-350  Letters of Conservatorship You must also fill out the two local forms: PB-4002  Referral for Court Investigator & Questionnaire – Conservatorship PB-4003-1  Document Cover Sheet You may also need to fill out these forms depending on the circumstances: A Capacity Declaration – Conservatorship GC-335 form for a licensed psychologist or physician to gain conservatorship of the person only. If you are petitioning for conservatorship of only the estate, you must Have a physician or licensed psychologist to fill out a Capacity Declaration – Conservatorship GC-335 form and the local form PB 4015 Professional Declarant’s Attachment to Form GC-335 . OR Fill out the PB 4016 LayPerson’s Declaration Re: Legal Capacity  form yourself. These forms have instruction sheets attached to them. If you are asking for conservatorship of both the person AND the estate, you must have a licensed psychologist and physician fill out a Capacity Declaration – Conservatorship GC-335 form . They must also fill out a local form PB 4015 Professional Declarant’s Attachment to Form GC-335 . These forms have instruction forms. (Also, see Probate Local Rule 11) If you or the conservatee cannot afford the court fees, you must also  fill out these forms: FW-001  Request to Waive Court Fees FW-003  Order on Court Fee Waiver (Superior Court) If there is an urgent need for the conservatorship, then fill out these temporary conservatorship forms: GC-110  Petition for Appointment of Temporary Conservator GC-141  Order Appointing Temporary Conservator GC-150  Letters of Temporary Conservatorship Temporary conservators have special rules. See Probate Code Section 2253 . Also, read Probate Local Rule 11 for help filling out your forms correctly. If they are incorrect, you will need to redo them and file them once more.
Step 2	Gather the information for your forms. You will need the following information for the proposed conservatee’s: ·       Full name ·       Address ·       Date of birth ·       Social security number ·       The name, address, phone and fax numbers for their doctor ·       Medical record number ·       If you are asking for a conservatorship of the person or estate ·       A description of the person’s mental and physical health ·       The reason why you feel there is a need for a conservatorship If you are asking for a conservatorship of the estate, then you must also describe how the person is easily influenced or cannot manage their finances. Go into as much detail as possible and give the details of people who witnessed it. List the assets of the potential conservatee in as much detail as you can. The Court will need to know how much the assets are worth and how much income the proposed conservatee receives each month. If you are married to the proposed conservatee, you do not have to do this. Read more in Probate Code Section 3051
Step 3	File the forms Make 2 copies of all your forms and the Proof of Service, and take the copies and originals to the Probate Clerk’s Office Downtown Superior Court (DTS). Visit the DTS page for the courthouse address, phone and business hours. There are a number of court holidays when the Court will be closed. You will need to pay a filing fee as per the local fee schedule . The clerk will stamp both the originals and the copies. One set of copies will be sent to the Court Investigation Unit, and the other copies are for your own records. The Court Investigation Unit will investigate your case and make their recommendations to the Court.
Step 4	Serve your forms You must send a notice by mail to certain people, including the family of the conservatee: ·       Spouse ·       Grandparents ·       Siblings ·       parents ·       children ·       grandchildren An adult must serve copies of the court forms to the listed people at least 15 days before the hearing. You cannot be the one to serve these forms. You must do this even if you think those people don’t care or may disagree with you. This notifies them that you are petitioning to become the conservator. An adult must also give personal notice to the proposed conservatee. A friend or member of the family may do this. Alternatively, you may hire a professional process server. While serving, you must serve the following forms: Notice of Hearing Petition for Appointment of Conservator You may also include a copy of the Capacity Declaration You must closely follow the rules for giving notice. If you do not follow them correctly, you may need to go back to Court. The person who serves all the forms must fill out page 2 of GC-020  to give you proof of service. Make 2 copies of these forms to file them with the clerk when filing all your papers. If you need help serving the forms, contact the Court’s Self-Help Center.
Step 5	Wait for a hearing date and a case number Once you have filed your forms, you will receive a hearing date 10 weeks or later after filing. The court investigator will need some time to investigate the case. If you have not received a hearing date after 10 weeks, call the DTS clerk on (408) 882-2100 extension 2649 . You will receive a case number. If you need a temporary conservatorship, follow the steps in Step 1.
Step 6	Complete additional forms By this step, if you haven’t already filed form GC-340  then you need to fill it out. This nominates your proposed conservator. It must be filed at least four days before the hearing. Mail this form to the clerk or go to the Probate Clerk’s Office and file it in person. If you haven’t already filled out form GC-350 , then you need to fill this out. You can take the form to the hearing rather than filing it in advance.
Step 7	Before the hearing Before the hearing, you need to watch the video, “With Heart: Understanding Conservatorships.” You can access it in two ways: ·       Make an appointment with the court investigator and watch it at the courthouse. You must do this by two weeks prior to the hearing. ·       You can watch the video online https://www.youtube.com/watch?v=A-SX6YkFsP4 After watching the video fill out, sign, and file Form PB-4076  with the Court. You need to bring this form to Court on the day of your hearing.
Step 8	The hearing The details of the hearing will be listed on GC-020 , #4. You need to leave plenty of time for the security screening. There are signs by the elevator to help locate the courtroom. There is a list outside the door of the courtroom that gives the calling time for cases. You need to wait outside the courtroom for the clerk to call your case. Watch how other cases are handled while you wait. When your case is called, you and the conservatee will be asked questions by the judge. If the conservatorship is approved, you will be given an order to fill out by the clerk.
Step 9	After the hearing Go downstairs to the Probate Clerk’s Office and give the clerk the signed order. You must also file Form PB-4076  to show you watched the video.  If you need a bond, you will file it here, too and present the yellow slip. The clerk will present you with your letters of conservatorship.
Step 10	Your responsibilities as conservator When you are appointed a conservator, you must look after the conservatee’s ·       Food ·       Shelter ·       Clothing ·       Wellbeing If you are a conservator of the estate, you must: ·       Collect their income ·       Pay their bills ·       Make a list of their assets To learn more about your responsibilities, consult a lawyer. You can also purchase a Handbook for Conservators from the clerk.