Conservatorship
A Conservatorship is an important tool to consider when dealing with an adult that is vulnerable or incapacitated. It is a legal relationship between a Conservatee (one who may not be able to manage their affairs) and a Conservator (one who manages the Conservatee’s affairs). Conservatorships allow for the Conservator to step into the shoes of the Conservatee to manage various aspects of their life which they are unable to manage on their own. An individual who is under 18 years old can use a guardianship as opposed to a conservatorship if they require someone to manage certain areas of their life.
A Conservator may be either a Conservator of the Person or a Conservator of the Estate. A Conservator of the Person is one who manages the personal affairs of the Conservatee, such as medical care, daily needs, and living arrangements. On the other hand, a Conservator of the Estate manages the financial affairs of the Conservatee, such as their property and assets. The same individual may act as both the Conservator of the Person and of the Estate for the Conservatee. There is a third category of Conservatorships under the Lanterman-Petris-Short Act which deals with a Conservator to oversee the treatment and care for someone who is “gravely disabled” from a mental disorder. These are referred to as LPS Conservatorships.
A general Conservatorship is for a Conservatee that becomes incapacitated as an adult in which the conservator has broad powers and responsibilities of the Conservatee. Conversely, a limited Conservatorship is for an individual who had a developmental or intellectual disability before they turned 18 years old. With a limited Conservatorship, the Court specifically tailors which of the seven powers are granted to the Conservator/ retained by the Conservatee. Seven Powers of a Limited Conservator – California Courts will consider seven potential “powers” which the Conservatee may transfer control to the Conservator:
- The power to fix the Conservatee’s residence, or where they live.
- The power to access the Conservatee’s confidential records and papers (such as medical records).
- The power to consent or withhold consent to the Conservatee to marry.
- The power to exercise the Conservatee’s right to enter into a contract.
- The power to give or withhold medical consent on behalf of the Conservatee.
- The power to exercise or limit the Conservatee’s right to control his or her social and sexual contacts and relationships.
- The power to make decisions about the Conservatee’s education.
Courts are empowered to specify which powers an individual/Conservatee may retain and which powers will be managed by the Conservator. Courts may be reluctant to take away more rights or powers than are necessary to support the Conservatee, and Courts will frequently appoint investigators and attorneys to assess what an individual’s needs for a conservatorship are.