Conservatorship or Adult Guardianship
Whether through illness, injury, or mental decline, anyone can require a guardian (also known as a conservator) to care for them if they become mentally or physically incapacitated. Unless the person has the proper estate planning in place that names a conservator, one must be established through county probate court. At The Soto Law Group, our experienced conservatorship lawyer in Newport Beach can guide you through this often complex and emotional process.
Obtaining Adult Conservatorship Of The Person Or Estate
Although naming a guardian for a minor child involves a somewhat similar process, obtaining an adult Conservatorship is vastly different, especially in terms of what the court requires as proof that a Conservatorship is warranted. In fact, the process begins with the interested party filing a petition in court that requests the court to declare the incapacitated person incompetent, if its for the Person or Estate. Depending on what needs to be accomplished, and the disability that one may be facing, you could need a Conservatorship of the Person and Estate.
Sometimes, these filings are made “ex parte” (in secret), so a conservatorship can be established before family and friends even know it’s happening. Other times, conservatorship filings can lead to heated disputes between family members and/or friends, who may claim they’d be better suited for the role, and this can get very messy and costly.
Regardless of who files the petition, conservatorships will only be granted if the court determines there’s enough evidence to show the person is mentally incapacitated-to the point where they can no longer make legal, financial, and/or healthcare decisions for themselves. If a conservatorship is granted, the incapacitated person is known as the guardian’s “ward.”
Who Can Serve As A Conservator Of The Person Or Estate?
Although courts typically give preference to a spouse or another close family member, a conservator doesn’t have to be a relative. Provided the person is a competent adult, a close friend, or any other interested party can serve as long as they prove they’re best suited for the position.
If a relative or friend is not willing-or capable-of serving, the court will appoint a professional guardian or public guardian. Sadly, in certain situations this can lead to horrible financial and/or physical abuse or high cost to the estate of the incapacitated, so it’s best to plan ahead and name a conservator in your estate planning documents to keep courts out of the picture entirely.
Adult Conservatorships Responsibilities
Depending on the extent of the person’s incapacity, a court-appointed conservator can be given near complete control over a person’s life. There are two types of conservatorships: conservator of the person and conservator of the estate.
Conservator of the person involves making decisions about the ward’s place of residence, physicians, medical treatment, and a host of other personal issues. Conservatorship of the estate involves decisions about the person’s income, legal actions, assets, insurance claims, and many other matters.
Usually one person is appointed for both roles, but the court can also split the responsibilities among multiple parties. For instance, one conservator may oversee the financial decisions (Conservator of the Estate), while another may handle all of the living arrangements and healthcare (Conservator of the Person). Moreover, the court often requires the conservator(s) to file detailed status reports-like financial accounting-at regular intervals or whenever important decisions are made, such as the sale of assets, again, you can have a Conservator of the Estate and Person. They maybe the same person or you can split the two, depending on the circumstances.
Some of the most common duties of adult guardians or Conservators of the Estate or Person include:
- Paying the ward’s bills
- Determining where they live
- Monitoring their residence and living conditions
- Providing consent for medical treatments
- Deciding how their finances are handled, including how their assets are invested and if any assets should be liquidated
- Managing real estate and other tangible property
- Keeping detailed records of all their expenditures and other financial transactions
- Making end-of-life and other palliative-care decisions
An excellent attorney who helped me with all aspects of Conservatorship, Special Needs trusts, and estate planning. I would not hesitate to recommend her to other clients, especially parents of special needs children. She is highly informed and made the process less stressful. It is a huge weight off my shoulders having done all this. I can’t thank Dede enough. Definitely go to the Soto Law Group for your estate planning needs. The best in the area.
DeDe’s most impressive attribute is her ability to make you feel comfortable. At no time did I feel that she was rushing me or that she was not focused on the tasks relevant to establishing my trust. I am detail-oriented; but that did not bother DeDe, as she took the time to explain certain nuances to me. Talk about detail! DeDe found a discrepancy among some deeds I had given her. Only someone, who had diligently reviewed those documents, would have caught the error. I grade DeDe outstanding in the knowledge of the law, social interaction, and professionalism.