Mental Health Conservatorship

When do you need a Conservatorship in California?

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• published: 07 Mar 2016
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Walnut Creek Elder Law, Probate and Trust Attorney Matthew Talbot discusses what a conservatorship is and when a conservatorship is necessary in California. A conservatorship is a court proceeding where someone is appointed to make medical or financial decisions on behalf of another individual who is over the age of 18. Guardianships are for minors, or those under 18. A conservatorship allows someone to manage the care of someone else who is unable to take care of themselves because of dementia or Alzheimer's, a special need such as down syndrome. Conservatorships for individuals with special needs are most often limited conservatorships. There are two types of conservatorships, one for medical, and one for financial. A conservatorship of the person is for medical affairs and a conservatorship of the estate is for financial affairs. The estate planning process has similar documents - the power of attorney (appoints an attorney in fact to make financial decisions) and the advance healthcare directive (appoints agent to make medical decisions). When the power of attorney and healthcare directive are done correctly, they can preclude the need for a conservatorship in certain instances. In general, a conservatorship is only necessary because someone has not done a power of attorney or advance healthcare directive. However, in some instances, sometimes the documents are insufficient or not legally valid, or there are concerns about the person who is appointed by the documents. For example, there might be concerns that the agent appointed by the healthcare directive or power of attorney is committing elder abuse. Someone can take that person to court, and have them suspended, and another person appointed to make medical and financial decisions. For those adults who are younger, the safest thing they can do to prevent a conservatorship from becoming necessary, is execute an estate plan that includes a financial power of attorney and a healthcare directive. These documents do not expire but last the entirety of one's lifetime. It's always best to update them, if it becomes necessary. Why would one want to avoid a conservatorship? A conservatorship can be very costly, and also must be done through the court system, which can be a time consuming process. Additionally, if you are conservator of the estate for financial affairs, you have to account to the court on a consistent basis. The information also becomes available to the public, and all accountings and conservatorship court proceedings have to be mailed to family members. Additionally, problems can arise if a close friend or family member objects to either the conservatorship, or the person petitioning to become conservator. The matter becomes what is called a contested conservatorship. Contested conservatorships can be very expensive because of attorney's fees, and also very emotionally trying for family members. In general, a conservatorship is much more complicated and expensive than if one has a legally valid healthcare directive or power of attorney.