A conservatorship is a protective court proceeding for an adult. There are four types of Conservatorships. These include: Limited Conservatorships, LPS (Lanterman-Petris-Short Act) Conservatorships, Probate Conservatorships of the Estate, and Probate Conservatorships of the Person.
Limited Conservatorships are conservatorships of adults with developmental disabilities. Not all persons with developmental disabilities require a conservatorship. People with developmental disabilities can usually do many things on their own; as a result a limited conservator has more limited powers than the other types of conservatorships and these powers will vary on a case by case basis.
The powers granted by the court may include the ability to:
- determine where the Conservatee will live;
- have access to the Conservatee’s confidential records and papers;
- sign contracts for the Conservatee;
- make decisions for most medical treatments for the Conservatee;
- make decisions about the Conservatee’s education and vocational training;
- give or withhold consent to the Conservatee’s marriage;
- control the Conservatee’s social and sexual contacts and relationships; and/or
- manage the Conservatee’s financial affairs.
The Court will not give powers to the Conservator for things that the person with a developmental disability is capable of doing for themselves. At Carney, Sugai & Sudweeks, LLP we can work with you to identify and petition for the powers that are necessary in the establishment of a limited conservatorship of the person with a developmental disability. We can also assist you in life care planning, estate planning, and the creation of special needs trusts for persons with developmental disabilities.
An LPS Conservatorship is established for a seriously mentally ill adult. The mental illness must be listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM). Usually, this type of Conservatorship is only necessary when placement in a locked facility and/or very powerful drugs to control behavior are needed.
The Court will not establish an LPS Conservatorship unless it finds beyond a reasonable doubt, that the mentally ill adult, is gravely disabled. Gravely disabled means that, due to a mental disorder, the person cannot take care of his/her basic personal needs for food, clothing, or shelter.
The Public Guardian’s Office acts as both the LPS investigator and the temporary conservator of the person and/or estate for thirty (30) days. After thirty (30) days the Public Guardian will present a report to the Court indicating whether the mentally ill adult is gravely disabled and who would be the best person to become the conservator. It is possible that a family member or friend may qualify to become the LPS Conservator. Unlike the other types of conservatorships, an LPS Conservatorship expires after one year.
While we cannot assist you in bringing the initial petition for an LPS Conservatorship (this may only be done by the Public Guardian), we can counsel you in the steps to take in preparation for an evaluation by the Public Guardian. We also can bring a separate petition for your appointment as Conservator once the initial petition for the Conservatorship has been filed by the Public Guardian.
Probate Conservatorships are usually started when a concerned person (friend, family member, neighbor) notices that a person is having trouble taking care of their personal needs or managing their financial resources. In some instances, Adult Protective Services (APS) is notified by a concerned person or a mandatory reporter that an individual is having trouble meeting their needs or someone has taken advantage of them.
At Carney, Sugai & Sudweeks LLP, we have experience in working with family members, friends, and other concerned persons to evaluate the incapacitated person’s circumstances to determine the best course of action. If available, we can evaluate the estate planning documents of the individual, such as a Durable Power of Attorney for financial affairs, Advance Health Care Directive, and a Revocable Living Trust, to see if they are sufficient to avoid a conservatorship. We can also assess whether a one-time Court Petition for a specific circumstance would be sufficient to protect the incapacitated individual. These one-time Court Petitions may include a Petition to Authorize Medical Treatment or a Petition for a Single Community Property Transaction.
With our experience in Conservatorships we can effectively work with competent clients prior to their needing a conservatorship to do the estate planning, life care planning, and long term care planning to avoid the necessity and expense of establishing a conservatorship in the event that they lose capacity.
When a Probate Conservatorship is necessary, we can assist in the establishment of one or both types of Probate Conservatorship. We can also evaluate your case to see if a Temporary Conservatorship is necessary and feasible for your circumstances.
Probate Conservatorships of the Person
A Conservator of the Person manages the personal care of the person (Conservatee) who cannot provide properly for their personal needs, physical health, medical care, food, clothing, or shelter. The Conservator decides where the Conservatee lives, but must make sure it is the “least restrictive” residential setting necessary to meet the Conservatee’s needs.
In some cases the Conservator will need additional powers, which are referred to as “dementia powers.” Dementia powers are required to place a Conservatee in a secure perimeter (locked) facility. The administration of medications appropriate to the care and treatment of dementia also necessitate dementia powers.
Probate Conservator of the Estate
A Conservator of the Estate is appointed when an individual is unable to manage their own financial resources, resist fraud or undue influence. The Conservator’s primary responsibility is to conserve, manage, and use the Conservatee’s property assets for the Conservatee.
For additional information about conservatorships we recommend you visit the self help website for the Superior Court of California County of Santa Clara.