Although we all prefer not to dwell on it, reality dictates that as we age, so do our parents and other older loved ones. The natural aging process typically brings with it physical and/or mental deterioration along with increased odds of developing Alzheimer’s or another age-related dementia condition. At some point, it may become clear that a parent (or other loved one) can no longer safely and responsibly make personal and/or financial decisions. If you find yourself facing such a realization, it may be time to consider petitioning for conservatorship. Dennis M. Sandoval, Riverside certified elder attorney, explains the process of conservatorship in California to give you an idea what is involved.
What Is Conservatorship?
Conservatorship is a legal relationship, established through a court process, whereby a responsible adult or organization is appointed (the “conservator”) to care for an adult who needs help (the “conservatee”) caring for himself or herself and/or managing his or her finances. In California, there are two basic types of conservators – conservator of the person and conservator of the estate. A conservator of the person is responsible for helping the conservatee with the daily tasks of living and/or with making personal decisions. A conservator of the estate is responsible for making financial decisions and managing the estate of the conservatee. You could be appointed as either type of conservator, or both. The process for assisting a minor is similar and is know as a guardianship.
How Do I Know When Conservatorship is the Right Option?
Deciding to pursue conservatorship over a loved one is a highly personal decision and one that should not be made lightly. Often, an adult child feels that pursuing conservatorship over a parent is akin to stripping that parent of his or her freedom and independence; however, the alternative is often to leave a parent vulnerable to injury or victimization. If you are unsure whether conservatorship is the right path to take, discuss your concerns and your legal options with an elder law attorney. If your loved one still has sufficient mental capacity, there may be other alternatives, including a durable power of attorney for finances, an advance health care directive and a living trust.
How Do I Petition for Conservatorship in California?
If you have made the difficult decision to pursue conservatorship, you will initiate that process by filing a petition with the appropriate court. The petition is generally filed in the county where the proposed conservatee resides. The petition must include information explaining why you believe the proposed conservatee is in need of a conservator and why less restrictive alternatives will not sufficiently protect him or her. The law in California requires the least restrictive means be used to protect a vulnerable, disabled, or incapacitated adult. Because a conservatorship is the most restrictive option, you will need to be prepared to explain why a less restrictive option is insufficient. The petition must also include information about the proposed conservatee’s close family members because they are entitled to notification of the proceedings and have the right to object to the appointment of a conservator.
Once the petition is filed, the proposed conservatee and family members must be officially notified and provided with a copy of the petition. A court investigator is then assigned to the case and will make an effort to speak to both the conservatee and persons who are close to him or her. The court will also set a hearing date when the petition is filed. The proposed conservatee is entitled to be represented by an attorney if he or she opposes the conservatorship. In some cases, the court will appoint an attorney to represent the proposed conservatee.
If there are objections to the conservatorship, the court and the attorneys will usually try to find if there is a way the parties can agree on how care and oversight of the proposed conservatee can be handled. This often involves the parties participating in a mediation handled by an independent person, often an attorney or a retired judge.
If mediation and other efforts to settle prove unsuccessful, the case would head to trial. At trial, the Judge will listen to testimony and consider evidence that purports to prove the need for a conservatorship. Persons filing an objections, including the proposed conservatee, to the proposed conservatorship will be allowed to present testimony and evidence as to why they oppose the conservatorship. At the end of the trial, the Judge will decide if a conservatorship is warranted and, if so, which type. The Judge may also limit the authority of the conservator if less than complete authority will be sufficient to protect the conservatee in the court’s opinion. The court will then decide if the Petitioner (you in this case) is an acceptable candidate to be the conservator. If you are granted conservatorship, the court will issue Letters of Conservatorship to you that are used to prove to third parties the authority you have over the conservatee.
Contact a Riverside Estate Planning Attorney
Petitioning for conservatorship can be a legally complex and emotionally exhausting process, and one you should not try to accomplish without the assistance of an experienced lawyer. If you have additional questions or concerns about petitioning for conservatorship, contact the experienced Riverside elder law attorneys at Sandoval Legacy Group, A Professional Law Corporation by calling (951) 888-1460 to schedule an appointment.
Have a question? Ask Dennis.
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