Probate Conservatorships

FAQ #1:  What or Who are the Conservatee and the Conservator in a Probate Conservatorship?

In a probate conservatorship, the terms "conservatee" and "conservator" are used to describe the individuals involved in the legal fiduciary arrangement.

1. Conservatee: A conservatee refers to the person who is protected and cared for by the conservatorship. They are typically an adult who has been found by the court to lack the ability to manage their own personal and/or financial affairs. This lack of capacity might be due to various reasons, such as mental illness, dementia, an intellectual disability, or a physical condition that renders them unable to make informed decisions and care for themselves. The conservatee is the individual for whom a conservator is appointed to make decisions and provide support.

2. Conservator: A conservator is the individual or entity appointed by the court to act on behalf of the conservatee. The conservator assumes the role of the legal decision-maker, making choices related to the conservatee's personal, financial, and healthcare matters. They are responsible for protecting the conservatee's best interests, ensuring their well-being, and managing their assets and affairs.

The role and responsibilities of a conservator can vary depending on the specific orders of the court. The conservator may handle tasks such as managing the conservatee's finances, paying bills, making investments, arranging for medical care, and making decisions about where the conservatee will live. The court may specify whether the conservatorship is limited to specific areas or is comprehensive, encompassing all aspects of the conservatee's life.

It is important to note that the court supervises the conservatorship and does require regular reports from the conservator, every two years, to ensure that they are fulfilling their duties appropriately and in the conservatee's best interests. The court will also periodically review the conservatorship to assess the conservatee's condition and determine if any changes to the arrangement are necessary.

FAQ #2:  What does a Conservator do in a Probate Conservatorship?

A conservator, in the context of legal proceedings, refers to a person or entity responsible for protecting and managing the assets, affairs, and well-being of an individual who is unable to do so themselves due to various reasons such as age, physical or mental incapacity, or vulnerability. The conservator takes on the role of a fiduciary, making decisions on behalf of the individual, and ensuring their best interests are upheld.

On the other hand, probate conservatorship in California specifically refers to a type of guardianship for adults established by a court through a legal process called probate. Probate conservatorships typically apply when an adult lacks the necessary capacity to manage their own affairs or make informed decisions. The court appoints a conservator to undertake responsibilities such as managing finances, making healthcare decisions, and overseeing day-to-day activities in line with the conservatee's needs and best interests.

Probate conservatorships aim to protect individuals who are unable to care for themselves, preventing abuse, neglect, or financial exploitation. The court ensures that the conservator is qualified, capable, and trustworthy, and exercises oversight to ensure the conservatee's rights are respected. Regular court hearings are held to assess the conservatee's condition and review the conservator's actions.

The establishment of a probate conservatorship is a serious legal step, as it involves the temporary or permanent transfer of rights and responsibilities from the conservatee to the conservator. It is generally considered when other alternatives, such as power of attorney or trusts, are either inadequate or unavailable to meet the individual's needs.

FAQ #3:  Does the conservatee automatically lose all rights in a conservatorship?

Being a conservatee in A probate conservatorship does not automatically result in a loss of all rights. A probate conservatorship is a legal arrangement where a conservator is appointed to make decisions on behalf of a person (referred to as the conservatee) who is unable to manage their own affairs due to mental or physical incapacity. The goal of a conservatorship is to provide necessary support and protection for the conservatee while preserving their rights and autonomy to the greatest extent possible.

In a conservatorship, the conservatee retains certain constitutional rights, such as the right to due process, the right to be treated with dignity and respect, and the right to have their preferences and wishes considered in decision-making. The specific rights and restrictions in a conservatorship can vary depending on the individual circumstances and the scope of authority granted to the conservator by the court.  In addition, the conservatee may retain other rights, unless the court determines otherwise, including the right to:

1.Control their own salary;

2.Make or change their will

3.Get married;

4.Receive mail;

5.Be represented by a lawyer;

6.Ask a judge to change conservators;

7.Ask a judge to end the conservatorship;

8.Vote (unless a judge determines they are unable to);

9.Control personal spending money if a judge says they can have an allowance; and

10.Make their own health-care decisions, unless a judge determines they are incapacitated.

While a conservator may have the authority to make certain decisions on behalf of the conservatee, such as managing finances or making medical decisions, the conservatee's rights should not be completely forfeited without just cause. The probate court oversees conservatorship cases to ensure that the conservatee's rights are protected and that the conservator acts in their best interests and make decisions that promote their welfare and well-being..

Ultimately, the goal of a probate conservatorship is to strike a balance between providing necessary care and support for the conservatee while honoring their rights and promoting their overall well-being.

FAQ #4: Can an INCAPACITATED person sign a power of attorney to avoid a probate conservatorship?

An incapacitated person cannot sign a power of attorney to prevent the court from appointing a conservator in a probate conservatorship. A power of attorney is a legal document that grants someone else (known as the agent or attorney-in-fact) the authority to make decisions on behalf of the person creating the power of attorney.

However, for a power of attorney to be valid, the person creating it must have the legal capacity to understand the nature and consequences of the document they are signing.

In the case of an incapacitated person, who lacks the mental or physical capacity to manage their own affairs, they do not have the legal capacity to create or sign a power of attorney.

This is because incapacitation typically means the person is unable to understand the implications of the legal document or make informed decisions.When an incapacitated person requires assistance with decision-making and management of their affairs, a probate conservatorship is the appropriate legal mechanism.

In a conservatorship, a conservator is appointed by the court to act on behalf of the incapacitated person's best interests and make important decisions regarding finances, medical care, and other aspects of their life.The court appointment of a conservator provides a safeguard to ensure that decisions are made in the best interests of the incapacitated person and that their rights and welfare are protected. It also provides oversight by the court, ensuring accountability and preventing potential abuse or exploitation.

FAQ #5: If a person signed and created a living trust or a power of attorney before becoming incapcacitated, can they avoid being placed on a probate conservatorship?

If a person has signed and created a living trust or a power of attorney before becoming incapacitated, they may be able to avoid being placed on a probate conservatorship. Both a living trust and a power of attorney are legal instruments that allow individuals to plan for potential incapacity and appoint someone to manage their affairs on their behalf.

A living trust is a legal entity created during a person's lifetime in which they transfer their assets and property. They appoint themselves as the initial trustee and name a successor trustee to take over the management of the trust in the event of their incapacity. By establishing a living trust, the person effectively transfers the management and control of their assets to the successor trustee, thereby avoiding the need for a probate conservatorship.

Similarly, a power of attorney is a legal document that allows an individual (known as the principal) to grant authority to someone else (known as the agent or attorney-in-fact) to act on their behalf in financial or legal matters. By creating a power of attorney before incapacitation, the person ensures that a trusted agent is already authorized to handle their affairs if incapacity occurs. This can help avoid the need for a probate conservatorship since the agent appointed in the power of attorney can step in and make decisions on behalf of the incapacitated person.

It is important to note that the effectiveness of a living trust or power of attorney in avoiding a probate conservatorship depends on the specific legal requirements in California. These requirements have been codified in California law and are used by the courts, judges, public defenders and private attorneys to determine if there are reasonable alternatives for the well-being of someone who becomes incapacitated because of they are no longer able to manage their finances and well-being alone.