Guardianship Attorney in Southern California
The courts have the power to appoint an individual to care for people who lack the capacity to care for themselves. For minors, the person appointed is referred to as a guardian. For an adult, the word conservator is more frequently used. Both a guardian and a conservator serve similar roles. They can be a guardian or conservator of the person’s estate, handling financial matters; or, they can be a guardian or conservator of the person, ensuring their health, safety, and physical welfare.
If you have questions or concerns about nominating a guardian or creating documents to protect yourself and your assets — or, if you’ve been appointed as a guardian or conservator and need guidance — contact us at the Bochnewich Law Offices. We will answer all your questions and address all your concerns regarding guardianship and conservatorships, as well as any other estate planning matters.
Our attorneys proudly serve clients throughout Southern California, including Los Angeles County, Riverside County, San Bernardino County, Orange County, and San Diego County.
Understanding Guardianship and Conservatorship
It might be easier to lump those appointed to care for minors with those who care for adults, but the distinction is that a guardian generally cares for minors and a conservator generally cares for adults.
In both cases, however, the appointed individuals can have responsibility for the person’s finances, or for their physical and mental well-being and daily living, or both. Thus, you will find the terms guardian/conservator of the estate and guardian/conservator of the person.
If a child needs someone to care for them because the parents cannot or will not, then the court can name a guardian. A parent can nominate a guardian in a last will and testament, so if both parents are gone, that person can then be considered and appointed by the court.
In California, a child 12 and older can request to have a guardian appointed. If the parents are alive and a guardian is appointed, then the parents will be asked to sign a notarized letter giving the guardian custody of the child. If the parents are unavailable to sign such a document, then the guardian can fill out what is called a Caregiver’s Authorization Affidavit.
A conservatorship of the elderly often begins with family members who are worried about the person, who might be a parent or other relative. The family members can petition the court for a conservator (aka guardian) to be appointed. Since the appointment of a conservator will deprive the individual of certain rights, there must be a conservatorship hearing, and the individual has a right to attend and be represented by counsel. The individual can present evidence and confront witnesses along with the aid of counsel.
If a conservator is ultimately appointed, the court will order that person to respect the autonomy of his or her ward to the maximum extent. Again, there may be a conservator of the person, a conservator of the estate, or a combination of the two.
Types of Conservatorships and Guardianship: General and Limited
There are two types of conservatorships and guardianships: general and limited. A general conservatorship provides the conservator with virtually all powers and responsibilities unless some have been carved out by the court. A limited conservatorship limits the powers to seven:
Fix the conservatee's residence or specific dwelling.
Access the conservatee's confidential records and papers.
Consent or withhold consent to the conservatee to marry.
Exercise the conservatee's right to enter into a contract.
Give or withhold medical consent on behalf of the conservatee.
Exercise or limit the conservatee's right to control social and sexual contacts and relationships.
Make decisions about the conservatee's education.
Our firm can help determine the right type of conservatorship for your situation, and provide advice on how to protect you or your loved one's finances, healthcare decisions, and other considerations. Please contact us for more information. We are here to help you in any way we can.
How Is a Guardian or Conservator Appointed?
When it comes to selecting a guardian for minor children, the court has the power to make the final decision, but a parent can nominate a guardian in his or her last will and testament. The court will review that nomination and then make a decision.
When it comes to an adult who wants to name a conservator for himself or herself, the main option is in the financial affairs realm, that is conservatorship of the estate. In this case, the person can create a living trust naming a successor trustee to take over financial affairs if the creator of the trust becomes incapacitated. Another option is to create a durable power of attorney (POA), naming someone to take over management of assets and finances if the principal, or author of the POA, becomes incapacitated.
In general terms, guardians or conservators are usually chosen from family members. In some cases, adult children may already be taking care of their elderly parents, but petitioning for a conservatorship gives them more sweeping powers to care for their loved ones.
Guardianship Attorney in Southern California
If you have questions or concerns about the appointment of a guardian or conservator, or you yourself are embarking on that role anywhere in Southern California, reach out to us at the Bochnewich Law Offices for clarification and guidance. We proudly serve clients throughout all Southern California counties, from Los Angeles to San Diego and everything in between.