Conservatorships: The Basics
Conservatorship: what is it and why is it necessary?
It is a common misconception. My husband is in the hospital, and is incapacitated, either due to an injury or due to deteriorating health. In any case, he cannot make his own health care decisions. Well, that means that I can make the decision on his behalf, right? Wrong.
If an adult, anyone over the age of 18, is incapable of making his or her own health care decisions or financial decisions, by means of mental disability or injury, no one is authorized to make decisions on that person’s behalf without a Durable Power of Financial Management, an Advance Health Care Directive or a Conservatorship.
The easiest route to follow is for every person over the age of 18 who has capacity to sign a Durable Power of Financial Management and Advance Health Care Directive (also known as Durable Power of Attorney for Health Care Decisions). The Durable Power of Financial Management allows you to name who you want to make financial decisions on your behalf if you cannot do so yourself. The Advance Health Care Directive allows you to name who you want to make health care decisions on your behalf in the event you are ever unable to do so. It also allows you to specify your funeral instructions, whether you want to donate organs and specifics on your end of life decisions.
In the event you do not have a valid Durable Power of Financial Management or Advance Health Care Directive, and you become incapacitated, your family members or friends will have to obtain a conservatorship to make decisions for you.
A conservatorship is a court proceeding where the Court authorizes someone to act on your behalf. A conservatorship of the person allows someone to make health care decisions on another’s behalf, and a conservatorship of the estate allows someone to make financial decisions on another’s behalf. Without this Court authorization, the medical providers or financial institutions will not take direction from any of your family or friends regarding your wishes.
To obtain a conservatorship, a person has to petition the Court. The petitioner is requesting that the Court appoint that person as conservator of the person or estate of another. An attorney is appointed by the Court to represent the proposed conservatee, the person who will be under conservatorship. A Capacity Declaration must be filed by a doctor of the proposed conservatee, confirming that the proposed conservatee does not have capacity to make medical decisions. Depending on the county, a Court Investigator may be assigned to the case. This person interviews the proposed conservatee and the proposed conservator and writes a report supporting or objecting the petition. In addition, in the instances with developmentally disabled adults, the regional center is required to file a report with the Court either objecting to or supporting the conservatorship. If the conservatorship is granted, reviews are required annually or biannually, depending on the county.
All of these requirements are safeguards to protect the proposed conservatee. The purpose of a conservatorship is to authorize another person to act on behalf of the incapable adult; however, the Court wants to ensure that this is the best option for the adult, and that the proposed conservator is the best person for the job.
In order to protect developmentally disabled individuals, the law allows for a limited conservatorship, in which only specific powers are granted to the proposed conservators. This allows the conservators the powers necessary to protect these individuals, but does not grant an excess of power to the conservators.
In other cases, a general conservatorship may be required. In instances of dementia, for example, additional requirements and additional powers are required for the proposed conservators.
If the proposed conservatee has his or her own assets, and that individual is incapable of making financial decisions and that individual does not have a valid Durable Power of Attorney for Financial Decisions, a conservatorship of the estate may be required. A conservatorship of the estate is much more costly and time consuming. Once the Court obtains jurisdiction over the assets of the conservatee, an Inventory and Appraisal is required. This informs the Court of the value and nature of the assets. Then, annually or biannually, the conservator is required to provide an accounting of the assets to the Court. The Court wants to know how every penny of the conservatee’s assets has been spent. Therefore, the conservator must account for all expenses, income, disbursements, receipts, dividends, etc. Not only is the information required, but the Court has a particular format and forms that must be used for the accounting. Needless to say, it is expensive.
Just like a conservatorship of the person, it may be avoided if an adult who has capacity prepares a Durable Power of Attorney for Financial Management.
The moral of the story is this: if you have capacity, prepare a Durable Power of Attorney for Financial Management and Advance Health Care Directive. These documents are prepared for you by our office when you create your estate plan.
On the other hand, if you have a person who is already incapacitated, or in the event of a developmentally disabled adult, a conservatorship is required to ensure that the individual’s health care and financial decisions can be made.
This article was authored by Shareholder, Emily A. Foehr. To contact Emily, e-mail her at email@example.com or (916) 419-2100, ext 250.
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