Background
Definition. A conservatorship is used in California where a someone cannot deal with their own financial matters or take care of themselves physically, so another someone is appointed by the Court to deal with these matters.
Financial Power Of Attorney
Since 1981, in California a guardianship can only be obtained for someone under the age of 18. Other states, though, use the term "guardianship" for what California now calls a conservatorship.
Terminology. A conservatorship must be established by a court. The someone needing the help is called the "conservatee" and the someone who receives authority to deal with financial, healing and/or other matters for the someone needing the help is the "conservator".
Types of Conservatorships. There are two basic types of conservatorships, a conservatorship of the someone and a conservatorship of the estate. Often one conservator fills both roles, but it does not have to be that way.
Conservator of the Person. A conservator of the someone makes sure that the conservatee has acceptable food, clothing, shelter, healthcare, social palpate and sources of enjoyment.
Conservator of the Estate. A conservator of the estate handles the conservatee's finances.
A conservator of the estate must use the conservatee's money and other assets to withhold (and educate, if appropriate) the conservatee and any dependents the conservatee has.
If the acceptable court order is obtained, the conservator can deal with not only the conservatee's personal finances but his/her business matters as well.
The Process
Starting the Process. A conservatorship is started by filing papers with the Probate Court and giving copies to the proposed conservatee and his/her close relatives.
Obviously, this can be a painful process for the conservatee, who is being required to give up proprietary to conduct his/her finances, make his/her own healing decisions, etc. Still, sometimes a conservatorship is unavoidable.
Court Investigator. A court interpreter must talk with the proposed conservatee and others who may know something about the situation.
The Hearing. A hearing date is scheduled and at the hearing the judge decides whether a conservator will be appointed and, if so, who that will be.
Unless the proposed conservatee is unable to attend for healing reasons, the proposed conservatee should be gift at the hearing, as the Judge will often want to query them.
Note that it is possible for someone else, ordinarily a family member, to object to the proceeding or advise a separate conservator.
Inventory and Appraisal. Within 90 days of the date the Judge signs the Order Appointing Probate Conservator, the conservator must file a report with the Court listing the assets that the conservatee owns.
More specifically, the conservator prepares an inventory and appraisal form. If there are assets other than cash, the conservator must transmit the inventory and appraisal to the probate referee, who is appointed by the Court. The probate referee will appraise the non-cash items, perfect the inventory and appraisal by inserting the value of those items, and return it to the conservator, who must file it with the Court. The probate referee ordinarily takes four to six weeks to return the form.
The estate is charged a fee for the appraisal, generally 1/10th of 1% of the total value of the conservatee's estate, with a maximum fee of ,000. The probate referee may also be able to recover expenses, such as mileage, in addition.
Court Investigations. Once a conservatorship is in place, the Court conducts periodic investigations to confirm that the conservatorship is still needed and that the conservatee is being treated appropriately.
Bond and Periodic Accounting. If the conservator is handling the conservatee's finances (which is generally the case), the conservator must post a bond and must provide detailed accounts periodically to the Court that list all revenue and expenditures.
Amount of Bond. The number of the bond depends on the assets that the conservatee has and his/her each year income, as well as whether a expert bonding business (versus family members or friends) is providing the bond.
Bonding Companies. Note that most bonding fellowships will not issue a bond unless an attorney is handling the conservatorship proceedings
Status Reports About the Conservatee. Often the conservator must also prepare periodic status reports stating how the conservatee is faring and what the conservator is doing in regard to his/her duties.
Cost. ordinarily the cost of the conservatorship comes out of the conservatee's revenue or other assets.
Fees and Reimbursements for the Conservator.
Expenses. Generally, the conservator is entitled to reimbursement for inexpensive expenses incurred on behalf of the conservatee, together with expenses to create the conservatorship and sometimes money spent supporting the conservatee prior to the conservatorship.
With the exception of Court filing fees and premiums on the bond, the conservator must gather Court approval before receiving reimbursements from the conservatee's estate.
It is crucial for the conservator to keep receipts and records of all expenses (and reimbursements).
The conservator is allowed to hire help as needed - for example, an accountant - as long as the charge is inexpensive in comparison with the size of the conservatee's estate.
Generally the conservator cannot be reimbursed for postage, photocopies, mileage or the cost of trips to court.
Compensation for Time.
It is crucial that a conservator who wishes to receive compensation for his/her time keep a detailed written report of the time spent on the conservatorship, indicating the date, number of time and the work done on an entry-by-entry basis.
Courts ordinarily allow a family member to rescue only for time spent on managing the finances of the estate, and not for any time spent acting as a family member (such as visiting the conservatee) or for acting as a conservator of the person.
Courts may not allow compensation for time if slight time has been spent on financial matters or if the conservator has not followed court procedures, together with filing accountings on time.
Some courts have schedules that set out the compensation that a conservator may receive for his/her time, often a division of the conservatee's estate.
The conservator may only petition the Court for compensation for time after the later of both:
90 days after the Letters of Conservatorship were issued; and when the inventory and appraisal is filed.
Alternatives
Powers of Attorney. Unfortunately, the process of obtaining and maintaining a conservatorship is expensive, which is why we strongly urge citizen to sign powers of attorney that prescription who will deal with their affairs if they become incapacitated. If the proposed conservatee is mentally competent, by far the best advent is to have him/her sign durable powers of attorney. There are two types of powers of attorney.
Durable Power of Attorney for Finances. One type of power of attorney is a durable power of attorney for finances, which designates which citizen can deal with the grantor's financial affairs (such as paying bills) if the grantor becomes incapacitated.
Advance health Care Directive. The other type is durable power of attorney for health care. In California this is now known as an improve healthcare directive. This is designed to allow the grantor's designated agents to make health-care decisions if the grantor is incapacitated.
Agents. Oftentimes the spouse (or partner) is the former agent, and then adult children or friends are the successor agents in case the former (or subsequent) agent is unable (due to incapacity, etc.) or unwilling to act.
Medical Decisions. Often if a someone is incapacitated, healing personnel will allow the family members to make healing decisions if they are all in agreement. It is also possible to gather court authorization for exact healing procedures, but if authority is needed on an ongoing basis a conservatorship may be more effective.
Representative Payees. Most government agencies allow another someone (a "representative payee") to receive checks for the beneficiary and spend that money on the beneficiary's behalf. Each group has its own application procedures and requirements. Many agencies want the representative payee to provide them with periodic accountings.
Community Property. If one spouse becomes incapacitated, the other spouse ordinarily can conduct all of the society property that they have.
This will not help if performance needs to be taken regarding any separate property the incapacitated spouse has.
Also, even with society property, the spouse with capacity may not be able to roll over Treasury bills, sell stock, or sell or gather loans against real property.
Again, it is possible to have the court authorize the spouse to make exact transactions, but it may be easier to gather a conservatorship if ongoing authority is needed.
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