Indio Practice Areas
Seniors confront a variety of unique challenges as they age, including financial insecurity, cognitive decline, sensory impairment, reduced mobility and balance, and chronic health conditions.
Establishing a conservatorship can protect seniors and their assets and ensure they receive the level of care and attention they deserve. In this type of legal arrangement, a specific individual or organization makes personal and financial decisions on a senior’s behalf if they become incapacitated, impaired, or otherwise unable to manage their own affairs.
What Does a Conservatorship Do?
A conservatorship is a type of legal proceeding in which a judge appoints an entitycalled a conservator to provide care for an adult (the conservatee) who has been deemed legally incapable of caring for themselves or managing their own affairs. The conservator could be a trusted individual or a qualified organization. The conservator becomes responsible for various issues. These ensure the conservatee’s everyday needs are met, making living arrangements for the conservatee, collecting income for them, handling their investments, and fulfilling their financial obligations.
Conservators can also play an active role in estate planning, such as through investing, depending on their level of access and control over the conservatee’s assets.
What Are the Two Types of Conservatorships?
There are two primary types of conservatorships:
- Probate Conservatorships
Probate conservatorships are established for adults who cannot take care of themselves or manage their finances. There are several distinct types of conservatorships, and a qualified Indio probate attorney can help you navigate each of them.
A probate judge can appoint a conservator of the person, a conservator of the estate, or both. A conservator of a person is responsible for protecting and caring for the conservatee, ensuring they have food, shelter, clothing, healthcare, transportation, recreational opportunities, and housekeeping. A conservator of an estate handles financial affairs, such as maintaining and protecting assets, collecting income, creating budgets, paying bills, and making investments. A single entity can be appointed to both roles when this makes the most sense for all interested parties and no conflict of interest exists.
- Lanterman-Petris-Short (LPS) Conservatorships
An LPS is an especially powerful type of conservatorships, established for persons with extreme disabilities and serious, chronic mental health conditions requiring round-the-clock care and help performing basic functions. LPS conservatorships are often employed when someone requires special living arrangements, for example a locked room at an inpatient facility or frequent medication to regulate harmful behaviors. Sometimes an LPS is ordered when the conservatee has refused other forms of assistance or resisted voluntary participation in treatment. An LPS is unique in that it is initiated by local government agencies (such as a community health department that provides mental health services) rather than individuals.
How Do You Set Up a Conservatorship?
Multiple people can file for a general or limited conservatorship, including the proposed conservatee’s spouse, domestic partner, relative, friend, another interested person, a state or local agency, or the conservatee themselves. The petition must include basic information about the conservator and conservatee and make a clear case for why a conservatorship is necessary, which should include an explanation of why other alternatives are not appropriate for the situation. The court is unlikely to approve a petition unless it can be demonstrated that a conservatorship is the only way to meet the conservatee’s needs.
The court prioritizes the best interests of the conservatee in its decision. If they have the mental and physical ability to express their preference and nominate someone to serve in this role, the court will likely approve them, unless it can be demonstrated that appointing this person would not be in the conservatee’s best interests. If the conservatee has not nominated anyone specifically or is unable to do so, the court will follow this order of preference: spouse or domestic partner, adult child, parent, sibling, another adult approved by the law, or, failing to find any of the above, a public guardian.
Can a Conservatorship Be Reversed?
Conservatorships are typically permanent arrangements, but they can be ended or changed under certain circumstances:
- The conservatee becomes capable of handling their own affairs, such as after recovering from a disabling injury or illness. The court will direct a court investigator to evaluate their condition and determine whether the conservatorship should be ended.
- The conservatee dies. The conservator must take specific actions to be released from their duties and legally close the conservatorship.
- The conservator dies. In this case, the conservator’s executor, relative, or friend should inform the court of the death. The court will either ask the executor or the conservatee’s attorney to file a final account of the financial affairs or appoint another conservator to do so.
- The conservator resigns because they become ill or cannot continue serving in this role for any other reason. They can file a petition with the court requesting approval of their resignation, but they remain responsible for their duties until this approval.
- The court removes the conservator because they are unable to perform their job or fail to fulfill their obligations. The conservatee or their friends or relatives can request that the court remove an unfit conservator and file a petition to replace them with someone else.
- If the conservatee no longer has any assets after funding their care, the conservatorship of the estate becomes irrelevant. A conservatorship of estate might be ended after the conservator files for bankruptcy on behalf of the estate, for example. Still, the conservatorship of the person, which ensures the care of the conservatee, may continue.
Contact Bochnewich Law Offices to Learn More
If you have noticed an elderly relative or friend struggling to care for themselves and are concerned about their well-being, discuss your case with our firm. Bochnewich Law Offices can assist you with planning for the future and any possible contingencies that may arise. Our Indio conservatorship attorneys can help you understand your options, explain what to expect from a conservatorship, prepare a petition for the court, protect your rights in contested conservatorship cases, and guide you through every step of the legal process. Contact us today to discuss your situation and find the solution that meets your loved one’s needs.