INTRODUCTION TO CONSERVATORSHIPS

An article by attorney William R. Remery

So, you want to get a Reverse Mortgage to help with caregiving costs and your spouse, who is also on title to the property, has dementia. OR, you want to sell the house to downsize and reduce out-of-pocket expenses. Same problem: your spouse is on title but is not competent to sign the sale documents. OR, you are trying to help a friend or loved one who lacks the mental capacity to care for his or her basic daily needs for food, clothing, shelter and medical care, or lacks the ability to handle his or her financial matters or to resist undue influence of others, and either cannot or will not accept your help. There is nothing more frustrating than trying to help someone who will not accept the help they need.  When someone is not competent to participate in transactions which require their signature or when someone is either unwilling or unable to execute a power of attorney or other instruments which would give someone the legal authority to act for them, a conservatorship proceeding may be the only way to help them and protect them.

There are two basic kinds of conservatorships. While they serve many of the same functions, they differ in several important respects. The most restrictive type of conservatorship (from the perspective of the conservatee) is the “L.P.S.” conservatorship. It gets its name from the mental health law sponsored by California legislators Lanterman, Petris and Short. The Lanterman-Petris-Short Act is set out in the California Welfare and Institutions Code. It is employed in cases in which the conservatees pose an immediate danger to themselves or others. Procedurally, it is handled much like a criminal proceeding, as it can result in the conservatee’s incarceration in a state mental hospital, or in the compulsory use of psychotropic drugs, electro shock therapy and other extreme intervention for mental disorders. The proceedings are initiated by the county and filed by the District Attorney. The family cannot initiate an LPS conservatorship. The conservatee is always represented by an attorney, normally from the Public Defender’s office. An LPS conservatorship lasts for one year and a new hearing must be held each year to determine whether the conservator should be reappointed.

The other kind of conservatorship is brought under the California Probate Code and is, therefore, called a “probate conservatorship.” Probate conservatorships can be initiated by anyone. It can be someone nominated by the proposed conservatee, a relative, friend, the public administrator or any other interested person. The Probate Code sets forth a preference in favor of the spouse, child, parent and sibling, in that order. If none of the above are available, then any other person who is willing and able to act may be appointed. (As a practical matter, the courts will often appoint professional conservators to act when there are intrafamily disputes or when the estate is very complex and the available family members lack the sophistication to handle the business matter.) Unlike LPS conservatorships, Probate conservatorships continue indefinitely, unless someone petitions to terminate it or the conservatee dies. However, a probate conservator does not have the authority to commit a conservatee to a state mental institution or to consent to the use of such things as electro shock therapy.

In both LPS and Probate conservatorships, a conservator can be appointed over the person, over the estate, or over both. A conservator of the person handles the day to day decisions regarding placement and the environment in which the conservatee will live. If specifically authorized by the court, the conservator will also make all medical decisions for the conservatee. A conservator of the estate handles all matters relating to the conservatee’s assets including paying all bills, handling investments and protecting the estate. While the conservator of the person and estate are often the same person, they need not be. One person can be appointed conservator of the person to handle the conservatee’s personal and medical needs and another person can be appointed conservator of the estate to handle the financial matters.

When a conservator is appointed over the estate, the conservator must post a bond and make regular accountings to the court for all assets coming into or going out of the conservatee’s estate. An LPS conservator must account every year. A Probate conservator must account after one year and then every two years thereafter.

Due to the urgent nature of mental health cases (where a person poses a danger) and the fact that the proposed mental health conservatees are usually incarcerated awaiting a hearing, LPS conservatorships move rather quickly. Absent good cause to delay, a hearing must be held within two weeks after the initial 72 hour hold if the proposed conservatee is to be held any longer.

In emergency situations, temporary Probate conservatorship can be initiated within a week. However, permanent Probate conservatorships typically take at least five to eight weeks to get in place, depending upon the court calendar, assuming that the conservatorship is not contested.

The cost of a conservatorship will vary greatly depending upon its complexity. While the court filing fees, investigator fees, probate referee fees, etc., are predictable, a contested conservatorship proceeding can be very expensive, due primarily to the attorney fees. It is not uncommon for there to be three or more attorneys in a case representing the conservator, the conservatee, family members and other interested parties. Since the attorneys’ fees may be the largest expense of the conservatorship proceeding, and since fees vary a great deal among different attorneys, it is important to interview more than one attorney before selecting one to represent you in initiating or defending against a conservatorship proceeding. You may find that an attorney will quote a flat fee for initiating a conservatorship, but the quoted fee will typically not include the cost for preparing the first accounting or the fees that will be charged for advice in administering the conservatorship after the initial appointment. You must balance against any hourly rate the experience of the attorney. An experienced attorney may be able to handle a conservatorship in considerably fewer hours than can an inexperienced attorney. In that case, it might be less expensive in the long run to retain the experienced attorney even at a higher hourly rate.

Whatever the fee agreement, all attorney fees are subject to court approval at the time of the accountings. The attorney is not supposed to take fees without court approval. If an attorney holds any funds of the conservatee, the attorney must hold them in a client trust account pending court approval of the fees.

As I noted at the beginning of this article, conservatorships give us the legal authority to help those who need assistance but are unwilling or unable to let us help them without the court’s intervention. However, employing the court’s power involves both financial and emotional costs for which you should be prepared before taking that step. Often the conservatee does not appreciate the efforts that the conservator makes to help and actually resents the intervention. If you are thinking of initiating conservatorship proceedings, talk to a couple attorneys experienced in the area of elder law about any other alternatives which may be available.

For more information on William R Remery, visit Remery Law under Elder Law Attorneys in the Wellness Village. Founding Member.