In the first blog post of the "Conservatorship Conundrum" series, we learned about a conservatorship, also called a guardianship. Next, let's look at "who" does "what" in a conservatorship and how a conservatorship is formed.
What Is a Conservator?
Two types of probate conservators can be appointed. A conservator of the person is responsible for handling the conservatee's health care and other basic needs, while a conservator of the estate is responsible for handling the conservatee's financial matters.
The needs of the conservatee will determine if both a conservator of the person and a conservator of the estate are needed.
Who Can Be a Conservator?
If the proposed conservatee isn't able to nominate a person, the court will follow a list of preferences established by law (in order of preference from first to last): a spouse or domestic partner, an adult child, a parent, a sibling, a public guardian, or others the law approves.
If none of them wishes to be the conservator, a professional conservator who charges fees for services can be hired.
If no one files a petition, the public guardian will typically act as conservator and be legally responsible for making all decisions for the incapacitated person.
"Around 95 percent of conservators play dual roles of conservator of the person and conservator of the estate, while about 5 percent are different people or private or professional conservators," says Kirk McIntosh, a Costa Mesa, California-based probate and estate planning attorney.
Is Special Training Required to Become a Conservator?
You'd think a conservator would need special qualifications or specialized knowledge in accounting, law, or social work to become a probate conservator. Not true--pretty much anybody may qualify to become a conservator. In most states, the one prerequisite is that you're mentally competent.
What Are the Steps Involved in the Conservatorship Court Process?
Whenever you see court and process in the same sentence, you know you've gotten yourself into a situation that could be lengthy, costly, and possibly ugly. Let's run through a typical case in the California courts.
1. The Situation.
Say a relative feels that you're unable to care for yourself and fears for your personal health and welfare. Here, your relative will play the role of the proposed conservator, and you will be the proposed conservatee.
If your relative wishes to be conservator over your person, he or she must prove to the court that you're unable to properly provide for your basic needs, such as food, clothing, and shelter.
If your relative wishes to be conservator over your estate, he or she must prove that you're "substantially" unable to manage your financial affairs or "resist fraud or undue influence" by providing "clear and convincing evidence" (the "legal burden" or a "burden of persuasion"), such as unpaid bills or self-neglect, as proof to the court that you're unable to manage your affairs.
2. The Petition.
As the petitioner, your relative will file the case in court by completing the Petition of Conservatorship, the proposal to the court to appoint him or her as your conservator.
McIntosh explains, "Proof of need for a conservatorship requires a capacity declaration from a treating doctor." So the proposed conservator must show that a conservatorship is needed because the proposed conservatee is incompetent, which is known as the burden of proof.
Also, the burden of proof that must be met is that the conservatorship is "the least restrictive alternative or the least intrusive option."
3. The Notice.
Your relative (the petitioner) must have you served with the citation and a copy of the petition at least 15 days prior to the hearing. This "notice" must include the basis for the petition, the type of conservatorship being sought, and the ramifications of the conservatorship on your life--in effect, what rights will be denied either partially or wholly to you.
A written notice of hearing on the conservatorship matter must be mailed to your spouse or domestic partner and "second-degree" relatives, such as siblings and other immediate family members.
4. The Interview.
After the petition is filed, a court investigator will be assigned to the case, and court investigator fees will be paid.
The court investigator acts as the judge's eyes and ears by furnishing "neutral information" about the case. He or she will assess your situation, interview you and your family members, explain your rights, inform you of the petition, and review the allegations contained in it, among other things.
The court investigator will file a confidential report for the court, send copies of it to all parties, and make final recommendations to the judge.
5. The Hearing.
At the hearing, the judge will determine if all parties have been notified, whether the conservatorship is warranted, and what types of "special powers" may be granted to your relative if the judge approves the conservatorship.
If you oppose the conservatorship, you can explain why at the hearing. You can also request a jury trial. If the court grants these requests, then nothing else will happen at that time. If not, the judge will either grant or deny the conservatorship.
6. The Appointment.
If the judge grants the petition, an order appointing your relative as your conservator for the conservatorship of your person and/or estate will be filed, and Letters of Conservatorship will be issued to him or her. The Letters will prove that your relative has been appointed as your conservator, show that he or she has the authority to act as your conservator, and spell out the permitted actions your relative is authorized to take that affect your life.
If you have an estate, a surety bond must be filed unless the court has frozen your assets.
Frighteningly, your life may no longer be your own to determine or manage, although that all depends on the rights and powers the judge will allow you to retain.
At the end of the day a conservatorship can reduce you to the status of an infant with as few rights as a felon.
In the next blog post in the series, we'll enter the dark underbelly of the guardianship industry.