Back to Elizabeth McCoy home page

Elizabeth C. McCoy
Attorney At Law
5256 S. Mission Rd., Suite 124
Temecula, CA 92592-4833
Ph: 760.723.8906
Fax: 760.723.8906
Cell: 760.458.3213
elizabeth@ca-specialneedstrusts.com
www.ca-specialneedstrusts.com

What is a Conservatorship?

A Conservatorship is the legal procedure to designate a person, (called a Conservator,) to take charge of the person and/or estate of an adult deemed by a Court as incapacitated, (called the Conservatee.)   Legally, a person is an adult once he or she is eighteen years old or older.   Once your child with Autism turns eighteen, you will lose all parental rights over your child, even though due to his or her autism, the 'new adult' may be just as incapable of making decisions for him or herself as when he or she was a child. Accordingly, with the help of an Attorney, parents or family members can petition the Probate Court to both deem the now adult child incapacitated, and to be named as the adult's Conservator(s), and thereby gain legal rights over the incapacitated adult.

There are two types of Conservators.   A Conservator of the Person has legal rights over a person's body, and can make all decisions regarding the incapacitated person's body, including where the person will reside, and which doctor will treat the incapacitated person.   On the other hand, a Conservator of the estate has the right to manage the assets and money belonging to an incapacitated person.   (However, if you set up a Special Needs Trust, the trustee of that trust will manage all the assest in the trust with the adult incapacitated person as the beneficiary.)  

If a Conservator has plenary (complete) powers, the Conservator has legal rights over both the person and the estate.   In each case, the Conservator is required to make decisions on behalf of the Conservatee in a fiduciary capacity whenever the Conservatee is unable to make decisions for him or herself.

There are two types of Conservatorships: a) LPS, which is initiated by a treatment center; and b) a Probate Conservatorship, which is usually initiated in Probate Court by a family member or friend of the incapacitated person.

When is a Probate Conservatorship Appropriate?

There are two types of Conservators.   A Conservator of the Person has legal rights over a person's body, and can make all decisions regarding the incapacitated person's body, including where the person will reside, and which doctor will treat the incapacitated person.   On the other hand, a Conservator of the estate has the right to manage the assets and money belonging to an incapacitated person.   (However, if you set up a Special Needs Trust, the trustee of that trust will manage all the assest in the trust with the adult incapacitated person as the beneficiary.)  

What is the process for setting up a Conservatorship?

The First Step is to decide who will be named as the incapacitated person's Conservator.   If the incapacitated person has a Durable Power of Attorney or Health Care Directive, these documents usually name someone the incapacitated person recommends that the Court name as his or her Conservator.   In some situations, the incapacitated person understands that he or she needs help, and still has the capacity to designate a Conservator.

If the incapacitated person has not designated a Conservator, and is unable to, or is not willing to accept a Conservatorship, the spouse, adult child, parents, adult siblings, or close friends can volunteer to become the Conservator.   If a family member or a friend is not available to become the Conservator, a professional can be hired to serve as the Conservator.   Additionally, a Public Guardian or a county agency may be named as the Conservator.

After determining who should be the Conservator, the next step is for that person to petition the Court to be named the incapacitated person's Conservator.   The Courts usually recommend that the petitioner hire an Attorney to represent the petitioner in Court.   In addition, if an immediate need arises for the temporary care of an incapacitated person to protect him or her from losses and/or liabilities, the Attorney can request that the Court grant a temporary Conservatorship that can be revised by the Court later.

The Second Step is the investigation stage.   A Court appointed investigator reviews the Court papers, including medical reports and statements from individuals familiar with the disabled person. The Court investigator then conducts an interview with the disabled person to determine whether or not the person is indeed incapacitated, and needs a Conservatorship.

If the Court finds in favor of the petition for the Conservatorship, the court will produce Letters of Conservatorship, which are documents that enable the Conservator to open or close bank accounts, to manage the financial assets of the Conservatee, and to have whatever other powers over the Conservtaee that the Conservator petitioned for and the Court granted.  

Next, the Probate Court will produce an inventory and evaluation of the financial assets of the Conservatee, which will be archived with the Court after determining its value.   The Court will also complete an annual report of income and expenses related to the Conservatorship. After the Conservator obtains his or her rights under the Conservatorship, the powers continue until they are terminated at the time of the Conservatee 's death, or as a result of a court order.

What is the cost of setting up a Conservatorship?

The petitioner must pay: 1) filing fees to file the petition with the Probate Court; 2) the court investigator costs; 3) the Probate Court's fee to issue the Letters of Conservatorship; and 4) the Probate Court's fee for the evaluation of the Conservatee's financial assets.   If a professional Conservator must be hired on behalf of the Conservatee, he or she will have hourly fees for time spent on behalf of the Conservatee.   If the petitioner uses an Attorney to process the petition, the Attorney fees may be hourly or by lump sum.

What are the powers the Conservator gains?

The powers the Probate Court will grant the Conservator depend on which County Probate Court in California has jurisdiction over the Conservatee.   Depending on the county, the Court may grant the Conservator the power to make living arrangements for the Conservatee, such as a family residence or a specialized assisted-living facility, etc.; the exclusive power to give or withhold consent to medical treatment for the Conservatee; the power to pay bills or expenses for the Conservatee; the power to manage investments or other financial assets on behalf of the Conservatee; the power to request reimbursement in case of illegal appropriation of financial assets from the Conservatee; the power to access and control the Conservatee's confidential records and papers; the power to contract on behalf of the Conservatee; and the power to make decisions regarding the Conservatee's education.  

What can I do to plan for myself in the event I am incapacitated some day?

To protect against an unanticipated incapacity, you should execute both a Durable Power of Attorney and a Health Care Directive that includes naming a person you want the court to appoint as your Conservator in the event of your incapacity.