What is a Conservatorship?
A conservatorship in California is a legal relationship established by a court. The court appoints a conservator to take care of a person's well-being physically, financially, or both physically and financially.
The individual for whom the conservatorship is established is known as the "conservatee." The two main conservatorships in California are the conservatorship of the person and the conservatorship of the estate. There are a few types of conservatorships: probate conservatorships, limited conservatorships, Lanterman-Petris-Short, and temporary conservatorships.
Conservatorship of the Person - A conservatorship of the person is established to take care of the physical well-being of the conservatee, such as providing for their basic needs, including food, clothing, and shelter.
Conservatorship of the Estate - A conservatorship of the estate is established to manage the conservatee's financial affairs, such as paying bills and managing investments.
In California, probate courts handle petitions for the appointment of a conservator and conservatorship hearing and proceedings. You must understand what types of conservatorships there are to know which is best for your loved one.
Who Should Have A Conservatorship?
Conservatorships are typically used for individuals unable to make decisions due to incapacity, such as those with dementia, Alzheimer's, developmental disabilities, or severe mental illness. It's also used for individuals who are no longer capable of managing their own finances, such as those who have suffered a severe traumatic brain injury.
There are several reasons to use conservatorship in California. One of the primary reasons is to protect incapacitated individuals from harm. For example, suppose an individual with dementia can no longer make safe decisions about their own care. In that case, a conservatorship can be established to ensure they receive the necessary medical treatment and support. Additionally, a conservatorship can manage an incapacitated individual's financial affairs, helping preserve their assets and prevent financial abuse.
Advantages of a Conservatorship
There are several advantages to using a conservatorship in California. One of the main advantages is that the conservator is given legal authority to make decisions on behalf of the conservatee. This is particularly important in situations where the conservatee cannot make decisions for themselves.
Additionally, conservators can access resources and support, such as the court system, to help them carry out their duties. And the court has oversight over the conservatorship, which can help ensure that the conservatee's best interests are being protected.
Alternatives to a Conservatorship
While conservatorships are valuable tools in certain situations, they are not the only option available. Some alternatives to a conservatorship may be appropriate in certain situations.
- Power of Attorney. One alternative is a power of attorney, where an individual can appoint someone to make decisions on their behalf if they become incapacitated. And they get to choose the person instead of the court making that decision.
- Advance Health Care Directive. Another alternative is an advance health care directive, which allows an individual to appoint someone to make medical decisions on their behalf when they cannot do so themselves.
- Trusts. And lastly, trusts can also be a useful alternative, particularly for managing financial affairs and preserving assets.
Conservatorships, powers of attorney, advance health care directives, and trusts are powerful legal tools to help manage the affairs of an incapacitated loved one. A qualified California estate planning attorney can help you decide the best choices for you and your family in your particular circumstances.
Advantages of a Power of Attorney over a Conservatorship
A California Durable Power of Attorney (DPOA) is an alternative to a conservatorship that can provide many of the same benefits without needing court oversight and intervention. With a DPOA, an individual can appoint someone they trust ahead of time to make financial and legal decisions on their behalf in the event they become incapacitated.
One of the main advantages of a DPOA over conservatorship is that it allows the individual to have more control over who will manage their affairs. With a DPOA, individuals can choose the person or organization they want to handle their affairs rather than having a court appoint someone. A DPOA also allows for more flexibility in their agent's decisions, giving them a broader range of decision-making than a conservator.
Another advantage is that DPOA is a private matter. It is not a public record, meaning there is no need for court oversight, which can be costly and time-consuming. DPOA also takes effect as soon as it is signed and does not require a court determination of incapacity, unlike conservatorship which requires a court process.
Advantages of an Advance Health Care Directive over a Conservatorship
An advance health care directive, also known as a living will, is another alternative to conservatorship in California that can provide important protections for individuals and their loved ones. This directive allows individuals to specify their preferences for medical treatment before they become incapacitated and unable to make those decisions for themselves.
And an advance health care directive gives individuals more control over the type of medical treatment they will receive when incapacitated. It ensures that the individual's wishes are respected, even if they cannot communicate them. It can also provide guidance and peace of mind for the individual's loved ones, who may otherwise be uncertain about how to proceed.
An advance health care directive can, and often is, used, together with a durable power of attorney giving the individual more control over future financial and health care decisions.
Privacy is a common advantage that a DPOA and an advance health care directive have over a conservatorship. A conservatorship is a court proceeding with a public view of much of the information. A DPOA and advance health care directive are private documents between the parties that are typically not filed publicly.
And one of the most significant advantages of DPOAs and advance health care directives is the speed at which they can be put into place. These agreements do not go through a court proceeding and are effective as soon as they are executed. Appointing a conservator requires substantial time to file the petition, have a hearing, and allow the court to investigate and make a ruling. It is not a quick process.
How California Conservatorships are Different
While the basic principles of conservatorship are the same across the US, there can be significant differences in how conservatorships are handled from state to state. In California, the California Probate Code governs conservatorship and sets out the rules and procedures for establishing and managing them.
And in California, the court conducts a thorough investigation before appointing a conservator, including a review of the proposed conservator's qualifications and a determination that the proposed conservator is suitable for the job. Additionally, the court will typically consider the conservatee's wishes and any alternative options that may be available. In some states, appointing a conservator may be less formal and less rigorous.
Another key difference is the level of oversight provided by the court. In California, the court has ongoing oversight over the conservatorship, and the conservator must provide regular reports to the court. This helps to ensure that the conservatee's best interests are being protected and that the conservator is carrying out their duties in accordance with the law. In contrast, some states may provide less oversight and rely more on the conservator to self-report.
And California has the Elder Abuse and Dependent Adult Civil Protection Act, which provides specific protections for elderly and dependent adults at risk of abuse, neglect, or financial exploitation. This law gives the court additional authority to take action in cases where an elderly or dependent adult is at risk of harm. It also provides additional penalties for those who abuse or exploit such individuals.
The Britney Spears Conservatorship Case
There have been many high-profile California conservatorship cases in recent years, the most famous being that of Britney Spears. And some of these cases have raised questions about the use and abuse of the legal tool.
In 2008, her father, Jamie Spears, was appointed her conservator, giving him broad control over her personal and financial affairs. Over the years, the conservatorship was the subject of much controversy and criticism, with many arguing that it should be dissolved. Her fans formed a "Free Britney" movement fighting for her freedom and autonomy, arguing that the conservatorship was an abuse of power and that she was being held against her will.
In June 2021, Spears made her first public statement in court proceedings and asked to terminate the conservatorship. She accused her father, family, and management team of abuse, detailing instances of mistreatment, coercion, and conflict of interest. In July, the presiding judge granted Spears the right to choose her own attorney, and she chose former federal prosecutor Mathew Rosengart. The judge suspended her father as the conservator on September 29, naming an accountant his replacement until the conservatorship ended. On November 12, 2021, the judge formally terminated the conservatorship.
The case highlights the importance of close oversight and transparency in conservatorship cases and the need for the court to consider the conservatee's wishes and alternative options when making decisions about managing their affairs.
It also highlights the need for a qualified and experienced attorney to be involved in the process of protecting the conservatee's rights.
Is a Conservatorship Right for Your Loved One?
A California conservatorship is just one of the tools that help you care for a loved one when they can no longer care for themselves or their financial matters. And there are other tools to help, like powers of attorney, advance health care directives, and trusts.
Choosing how to best help an incapacitated loved one can be confusing. And advanced planning with a qualified California estate planning attorney is always the best option.
These are important and complex decisions that can seem overwhelming.
Let us help you choose the best options for you, your family, and your loved one in need.
At San Diego Legacy Law, our trust attorneys work closely with clients to evaluate their personal goals and available assets before incorporating trusts into their estate plans. Our founder, attorney Nicole D'Ambrogi, holds an LLM in International Taxation with concentrations in Financial Services and Wealth Management, which allows her to strategically analyze the many variables that can affect your ability to meet your estate planning goals instead of focusing on simple document preparation.
San Diego Legacy Law serves clients throughout San Diego and those in La Jolla, Del Mar, Rancho Santa Fe, El Cajon, Poway, Spring Valley, Chula Vista, Santa Rosa, Petaluma, Novato, and Healdsburg.
Contact us today to schedule a consultation to discuss your estate planning and asset protection needs.