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Probate Conservatorships:What do they do?

• By Aileen Kroll, JD

• Patients’ Rights Advocate

• In Santa Barbara

• Founder of Long Term Care Planning & Resource Center

•

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Same word means very different things:

Probate Conservatorship vs. LPS Conservatorship vs. Limited Conservatorship

vs.Temporary/PermanentConservatorship

What does it mean to be “conserved?”

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How Initiated

LPS

By professional person in charge

of facility or his/her designee

(W&I § 5352)

Probate

Anyone may petition (Probate §

1801(a))

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Statutory Requirements

LPS

Requires mental disorder

(W&I § 5350)

Probate

Unable to provide for personal

needs or manage financial

resources(Probate § 1801(a)

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LPS Conservatorships

• In a nutshell, LPS conservatorships may be set up to arrange placement and mental health treatment for people who are unable to provide for their food, clothing, shelter as a result of a mental disorder or chronic alcoholism.

• An LPS conservatorship is used only when the person needs mental health treatment but can’t or won’t accept it voluntarily.

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Limited Conservatorships• Limited conservatorships may be set up for adults with

developmental disabilities who cannot fully care for themselves or their property.

• Developmental disabilities include mental retardation (or conditions similar to mental retardation or conditions requiring similar treatment), epilepsy, cerebral palsy or autism that began before the age of 18.

• A limited conservatorship attempts to encourage further development, wherever possible.

• A limited conservator’s duty is to help the limited conservatee develop maximum self-reliance and independence.

• Refer to Regional Center

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Burden of Proof

LPS

Requires Grave Disability Beyond

a Reasonable Doubt

(Conservatorship of Roulet (1979)23 Ced 219, 152

CR 424

Probate

Clear and Convincing Evidence

Probate § 1801(c)

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Right to a Hearing

LPS

Right to Court/Jury Trial on Issue of Grave Disability(W&I 5350(b)(1))

Probate

Right to Jury Trial on Issue of need for Conservatorship

Judicial decision on specific capacities (Prob Code § 1827)

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Who May Be Conservator

LPSNot subject to list of

priorities(W&I § 5350(b)(1)

ProbateSubject to list of priorities: spouse, adult child, parent

(Prob § 1812)

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Placement

LPS

Placement in locked facility possible - least restrictive

placement(W&I § 5358(a)(c)

Probate

No such rightPersons with

Dementia may be placed in a locked

facility for the elderly

(Prob § 2356.5)

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Duration

LPS

1 yearMust be renewed

annually(W&I § 5361)

Probate

Indefinite(Prob § 1860)

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Concurrent existence of Conservatorship of Person and

Estate

If Probate Conservatorship of Estate exists -

cannot have concurrent LPS Conservatorship

of Estate

If Probate Conservatorship of Person exists - LPS runs concurrently, but is superior to

Probate Conservatorship of

Person(W&I § 5350)

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Case Study

• Which type of conservatorship, if any, would best serve this woman?

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What is a Conservator? A person or organization chosen to protect

and manage the personal care or finances of someone who has been found by a Probate Court judge to be unable to do so.

Who Can Serve as a Conservator?A family member;A friend;A Private Professional Conservator;A County Agency called the Public

Guardian’s office

The Nitty-Gritties of Probate Conservatorship

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Case Study

• Who Should Be the Conservator?

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Who Becomes a Probate Conservatee?

• Many are elderly. Others are younger people with temporary or permanent physical or mental disabilities.

• Typicially, a conservatee is a person who can no longer shop, cook, clean, dress or access medical care and/or can’t keep track of their money or remember to pay their bills and/or subject to exploitation.

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Two Types of Probate Appointment

• Conservator of the Person

• vs.

• Conservator of the Estate

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Conservator of the Person

• Appointed when someone needs help taking care of their daily needs.

• Arranges for the conservatee’s care and protection.

• Decides where the conservatee will live.• Makes arrangements for the

conservatee’s health care, meals, clothing, personal care, housekeeping, transportation, recreation.

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Case Study

• Does this person need a Conservator of the Person?

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Conservator of the Estate

• Manages the conservatee’s finances• Locates and takes control of the

conservatee’s assets• Collects income due to the conservatee• Makes a budget to show what the

conservatee can afford• Pays the conservatee’s bills• Protects the conservatee’s assets

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Case Study

• Does this person need a Conservator of the Estate, Person or both?

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Temporary Conservatorship

• Both forms of permanent conservatorship require notice and a hearing.

What if someone needs immediate help?

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The “How-To’s” of Temporary Conservatorship

• A judge may appoint a temporary conservator of the person or estate.

• A temporary conservator arranges for temporary care, protection and support of the conservatee and protects property from loss or damage.

• Conservatee may not be moved without a court order.

• The Letter of Temporary Conservatorship will show an exact ending date.

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Case Study

• Does this person need a temporary conservator?

• What will be accomplished?

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Permanent Conservatorship Process

• Who initiates it?• Family• Friends• Neighbors• APS• Hospitals• Anyone!

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What are the signs that a Probate Conservatorship may

be needed?

• Self-neglect• Neglect by Caregivers• Abuse• Exploitation• Dementia/Head Injury but not Mental

Illness!• Have less restrictive approaches been

exhausted?• Is the behavior a way of life?

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The Conservatorship Process

• The packet• The MD• Who is seeking to be the conservator?

Is it contested?• Is the conservatorship voluntary or

involuntary?• Attorney?• Role of Court Investigator

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So, you’ve been appointed Conservator . . .

• Obtain Letters of Conservatorship (court certified)

• Obtain a bond if you’ve been appointed Conservator of the Estate (sometimes waived)

• Provide accounting to the Court (if Conservator of the Estate)

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Rights Retained by All Conservatees

• Right to be treated with respect

• Right to have wishes considered

• Right to ask questions and express concerns re conservatorship

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Rights Usually Retained by Conservatees

• The right to:• Marry• Make or change a will• Receive personal mail• Be represented by a lawyer• Ask a judge to change conservators• Ask a judge to end the conservatorship• Vote

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Changing Conservators orEnding the Conservatorship

• The responsibilities of a conservator ends when:

• A judge determines that the conservatee no longer needs to be conserved;

• The conservator’s appointment is withdrawn by a judge (or the conservator resigns or dies) and someone else is appointed;

• The conservatee dies

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Problems/Issues/Concerns re Conservator

• Abuse by Conservator• Neglect by Conservator• Exploitation by Conservator• Wrong Conservator?• Out-of-State appointment• Attorney• Personality issues

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Problems/Issues/Concerns for Conservatee

• “What do you mean I’m conserved?”

• “I don’t want to live here”

• “I don’t want medical care”

• “Who are you to tell me what I can and cannot do?”

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In Conclusion . . .

• Probate Conservatorship, when in capable, caring, knowledgeable hands, can greatly improve the lives of persons no longer able to manage their daily affairs.

. It DOES NOT take the place of an LPS Conservatorship, which often leads to great frustration for family members