Conservatorships

Conservatorships in California

A conservatorship is similar to a guardianship except that a conservatorship gives a person power over an incapacitated adult who is unable to care for him or herself whereas a guardianship gives a person power over a child who has no other adult to care for him or her.  In each case, the conservator or guardian is authorized to make day-to-day decisions for the person who is unable to make those decisions themselves. An adult who is unable to make decisions for him or herself is called a "conservatee." The person who is given the power to make those decisions is called the "conservator."

Some of the powers a conservator has include:

• Deciding where the conservatee will live,
• Viewing the conservatee's confidential records and documents,
• Entering into contracts for the conservatee,
• Giving or withholding consent for most medical treatment,
• Making decisions about the conservatee's education and vocational training,
• Placing the conservatee in a facility for the developmentally disabled,  
• Giving or withholding consent to the a conservatee's marriage,
• Managing the conservatee's finances.

A conservatorship is generally necessary where an adult is mentally incapacitated, either due to health, mental illness or retardation. This incapacitation must inhibit the adult from being able to handle his or her own affairs. If the adult is capable of making some, but not all day-to-day decisions, it is possible to obtain a limited conservatorship, such that the conservator only has decision making power over those items the conservatee is unable to make on his or her own.

Obtaining a conservatorship requires the filing of a petition in probate court. The petition must allege that the adult is unable to make day-to-day decisions on his or her own and nominate a person to make those decisions on the adult's behalf. All close relatives of the adult must be served with a copy of the petition and given the opportunity to object. The court will then appoint a professional to examine the adult to help determine whether the adult is incompetent, and then do a background check on the proposed conservator to help determine whether the proposed conservator is responsible. The professional will then prepare a report to help the court decide whether a conservatorship is appropriate. If an objection to the conservatorship is received, the court will have a trial and take testimony from witnesses. Otherwise, so long as a conservatorship is recommended and the proposed conservator is approved, the court will order the establishment of a conservator without the necessity of testimony and witnesses.