A California conservatorship, or probate conservatorship, may be brought on behalf of a person, an estate, or both. The person appointed is called the conservator.

Conservatorship of the Person: A conservatorship for a person (called the conservatee) is proper where that person is unable to properly provide for his or her personal needs for physical health, food, clothing, or shelter. California Probate Code §1801(a).

Conservatorship of the Estate: A conservator of the estate may be appointed for a person who is substantially unable to manage his or her own financial resources or resist fraud or undue influence. California Probate Code §1801(b).

Who May Nominate the Conservator?

Nomination By Conservatee: The conservatee may nominate the conservator either by petition of the court, or by a signed writing as long as the conservatee has sufficient capacity to make an intelligent preference in nomination.

Nomination by Spouse, Domestic Partner, or Other: The spouse, domestic partner, or an adult child, parent, brother or sister of the proposed conservatee may nominate a conservator in the petition or at the hearing on the petition. California Probate Code §1811. Although these proposed conservators are given a limited preference by the court, the selection of the conservator of the person or estate is solely in the discretion of the court, and the court is guided by the best interests of the proposed conservatee. California Probate Code §1812.

Who May File the Petition for Conservator?

A petition for the appointment of a conservator may be filed by any of the following:

(1) The proposed conservatee.
(2) The spouse or domestic partner of the proposed conservatee.
(3) A relative of the proposed conservatee.
(4) Any interested state or local entity or agency of this state or any interested public officer or employee of this state or of a local public entity of this state.
(5) Any other interested person or friend of the proposed conservatee.

What Information is Required In the Petition?

A petition for appointment of conservator must include information about the proposed conservator and conservatee, and state the reasons why a conservatorship is necessary, such as:

(1) The inability of the proposed conservatee to properly provide for his or her needs for physical health, food, clothing, and shelter.
(2) The location of the proposed conservatee’s residence and the ability of the proposed conservatee to live in the residence while under conservatorship.
(3) Alternatives to conservatorship considered by the petitioner and reasons why those alternatives are not available.
(4) Health or social services provided to the proposed conservatee during the year preceding the filing of the petition, when the petitioner has information as to those services.
(5) The inability of the proposed conservatee to substantially manage his or her own financial resources, or to resist fraud or undue influence. California Probate Code §1821. The appointment must be proven by clear and convincing evidence. California Probate Code §1801(e).

Advantages and Disadvantages of a Conservator

Naturally, the appointment of a conservator may cause anger and resentment between the proposed conservatee and those family members for the conservatorship, and those against it. The best way to avoid future issues is to create a California durable power of attorney for an advance health care directive or create a living trust, and a durable power of attorney for financial purposes.

Filed under: Estate Planning of the Rich and Famous, Probate, Probate Litigation, Will Contests