Probate Conservatorships

Probate Conservatorships in California

When someone is no longer able to handle his or her own financial and/or personal affairs, the court can appoint an individual (the conservator) to act on behalf of the incapacitated person (the conservatee)1.  The judicial procedure for this appointment is called a probate conservatorship. 

The establishment of a conservatorship restricts the conservatee’s powers over financial and/or personal care decisions.

How is this different from an LPS conservatorship?  LPS conservatorships are established under the Lanterman-Petris-Short Act and are governed by the California Welfare and Institutions Code (instead of the Probate Code).  In this kind of conservatorship, a conservator is appointed to represent a person who is “gravely disabled.”  LPS conservatorships are designed for persons with serious mental disorders, or who are impaired by chronic alcoholism. This fact sheet is about probate conservatorships, not about LPS conservatorships. For information regarding LPS conservatorships, contact Disability Rights California at www.disabilityrightsca.org.

Conservator of the Person vs. Conservator of the Estate – A Conservator of the Person is appointed to make decisions about personal matters for the conservatee, including decisions about food, clothing, and residence.

A Conservator of the Estate is responsible for handling the financial affairs of the conservatee. The conservator has the power to collect the conservatee’s assets, pay bills, make investments, etc. However, the conservator must seek court supervision for major transactions, such as the purchase or sale of real property, borrowing money, and gifting of assets.

A conservatee can have different people as the conservator of person and estate or one person can serve in both functions. Some conservatees may have only a conservator of the person, or only a conservator of the estate.

Advantages of a Conservatorship – A conservatorship offers more protection against abuse of the conservatee than other devices because the court supervises the conservator. The conservator must first file with the court an inventory listing all the conservatee’s property, and later, accountings that reflect all transactions involving the conservatee’s assets.  A conservatorship can be helpful as a structured way to manage an incapacitated person’s affairs when no other mechanism is in place, especially when that person is reluctant to accept assistance.

Disadvantages of a Conservatorship – The court is heavily involved in the conservatorship process, and this can result in substantial costs in attorney’s fees, filing fees, and investigator’s fees.  The proceeding is public, so the conservatee’s assets become a matter of public record.  The conservator must continually return to court for approval of certain transactions, which require hearings and additional fees and can create delays in completing the transactions. Another important disadvantage is the potential for a massive loss of individual rights by the conservatee.

Source of some information here is California Advocates for Nursing Home Reform – http://www.canhr.org

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