For some members of our society, legal protection may be necessary even after they have entered adulthood.  These individuals may have been injured in an accident, continue to suffer from an incapacitating physical illness or psychological disorder, suffer from dementia or Alzheimer’s Disease, or have some other condition that prevents them from caring for themselves. In these cases, it may be necessary to establish a conservatorship.

Conservators and Protected Persons

Conservatorship, or Guardianship for minors, is a legal arrangement that places an individual, also known as a ward or protected person, under the supervision of a conservator, or custodian.  There are two main types of conservatorship: conservatorship of the person and conservatorship of the estate.

A conservator is typically a family member, friend, or fiduciary appointed by the court.  A protected person can be a minor without a parental guardian or an adult who can no longer make safe and sound decisions about his or her own person or property.  Additionally, a person may be placed under conservatorship who is prone to fraud or undue external influence.

While conservatorship does attempt to maintain the protected person’s independence, it should only be considered in appropriate cases, as it may significantly impinge upon rights of the individual.

Appointment of a conservator can materially limit the rights and privileges of the protected individual in areas such as:

  • Choosing residence
  • Providing informed consent to medical treatment
  • Making end-of-life decisions
  • Making property transactions
  • Obtaining a driver’s license
  • Owning, possessing, or carrying a firearm or other weapon
  • Contracting or filing law suits
  • Marriage
  • Voting

Right to Due Process

To safeguard the protected person’s right to due process, he or she may be entitled to notice of, and ability to attend all legal proceedings related to conservatorship.  In addition, the court will appoint an attorney to represent the protected person if the protected person has not retained an attorney.  The protected person may present evidence, and confront and cross-examine all witnesses.

Conservatorship of the Person

Conservatorship of the person often relegates the following responsibilities to the appointed conservator:

  • Determining and maintaining residence
  • Providing informed consent to and supervising medical treatment
  • Consenting to and supervising non-medical services such as education, psychiatric or behavioral counseling
  • Making end-of-life decisions
  • Paying debts and other expenses
  • Maintaining the protected person’s autonomy as much as possible

The conservator may be required to report to the court about his or her activities on an annual basis.

Conservatorship of the Estate or Property

Conservatorship of the estate or property transfers the following responsibilities to the conservator:

  • Organizing, gathering and protecting assets
  • Arranging appraisals of property
  • Safeguarding property and assets from loss, whenever possible
  • Managing income from assets
  • Making appropriate payments
  • Obtaining court approval prior to any sale of major assets
  • Reporting to the court the estate’s status on a regular basis

Conservatorships may sometimes be temporary arrangements, meant to protect an incapacitated individual until he or she regains capacity.

Guardianship of Minors

Guardianships may also be used to protect the legal rights of a minor.  In the event that a parent is no longer able to act on behalf of his or her child, a guardian, usually a relative, is appointed.  Unlike an adoption, under a guardianship parents may remain responsible for supporting the child financially and they do not necessarily forfeit their parental rights.

A minor may be considered for legal guardianship if his or her parent cannot provide shelter, does not have a steady income, suffers from an illness, or is incarcerated.  In most instances, parental approval is sought prior to any legal proceedings.

The Law Office of Gretchen J. Kenney really cares about helping families who need to establish a conservatorship for their loved one.  Contact us today at 650-931-2505 to start the process of understanding the issues surrounding conservatorships and the steps that need to be taken.

The Law Office of Gretchen J. Kenney assists clients with Elder Law, including Long-Term Care Planning for Medi-Cal and Veterans’ Pension (Aid & Attendance) Benefits, Estate Planning, Probate, Trust Administration, and Conservatorships in the San Francisco Bay Area.