INTRODUCTION TO CONSERVATORSHIPSCategory: Newsworthy Notes
There are few things more frustrating than 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 yet who cannot or will not accept help. When such individuals will not accept assistance or lack the capacity to execute powers of attorney or other instruments which would give us 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 also 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 proposed conservatee is gravely disabled or poses 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 filed by the county, with the County Counsel representing the Public Guardian’s office and a Public Defender is appointed to represent the conservatee. A family member may intervene in place of the Public Guardian in appropriate cases. 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 intra-family disputes or when the estate is very complex and the available family members lack the sophistication to handle the business matters.) 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.
One special kind of probate conservatorship is the “limited” conservatorship, which may be used for someone who is developmentally disabled. The procedures for establishing the limited conservatorship are the same as for general probate conservatorships, but are designed to maximize the self-reliance of the developmentally disabled conservatee, but giving to the conservator only those powers that are necessary for the protection of the conservatee, while promoting as much self-reliance as possible on the part of the developmentally disabled person.
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 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 needs and another person (or financial institution) 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 conservatee’s 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 conservatorships can be initiated within a week. However, permanent Probate conservatorships typically take four to six 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 a conservatorship proceeding. You may find that an attorney will quote a flat fee for initiating a conservatorship, but will not tell you how much the first accounting will cost, or how much the attorney will charge for advice in administering the conservatorship after the initial appointment. You must also 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. Attorneys cannot take fees from the conservatorship estate without court approval.
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. 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.
If you want more information on conservatorships, Elder Law, Trusts and Estates, and Special Needs in California visit William R. Remery under Elder Law Attorneys in the Wellness Village. Member since May 11, 2011.