Conservatorship is like a guardianship, but it only applies to adults. Like a guardian, a conservator is given legal authority over another person. With adults, this only occurs when the person has become incapacitated and is no longer able to manage his or her personal affairs. In some cases, a conservatorship may also be established if the adult person is unable to resist the undue influence of others.
Children automatically lack legal capacity because of their age. Not so with adults. Imposing a conservatorship is a deprivation of the constitutional right to liberty and is taken very seriously by the court. Before a conservatorship can be established, the adult person must be notified and given a chance to defend. Proof stronger than ordinarily required in a non-criminal proceeding is needed to convince a judge that a conservatorship is necessary. This is the “clear and convincing evidence” standard of proof — it is more stringent than “preponderance of the evidence,” but need not be as strong as “beyond a reasonable doubt.”
The person appointed by the court to be responsible for the adult is called the “Conservator.” The “conservator of the person” has authority over the care, health and living arrangements of the adult; and the “conservator of the estate” has authority over the adult’s finances and assets. The same person can be appointed as both types of conservator, or a different person can be appointed to each position. The person in need of a conservatorship is called the “Conservatee.”
Conservators are subject to the continued supervision of the Probate Court and must comply with stringent accounting and reporting requirements. In many cases, the person appointed as conservator must also be licensed by the State of California as a professional fiduciary — though it is possible for unlicensed people to be appointed so long as they are not serving as professional conservators nor appointed on more than just a few cases, or they are family members of the Conservatee.
A detailed discussion of conservatorship proceedings is beyond the focus of this blog, but you can find comprehensive information on the California Courts website at : Seniors & Conservatorships.
Conservatorships are generally very expensive and very public. Most conservatorships can be avoided if the person in need has well-drafted powers of attorney for finances and for healthcare. In many cases, it is also advisable to have a Trust in place. (These topics will be discussed in other posts.)