Establishing a conservatorship is a complex and time-consuming process, best done by an experienced attorney. This usually occurs when no advance planning has been done such as establishing a trust, or creating powers of attorney or healthcare directives, or when family members are fighting.
The San Diego Union-Tribune’s recent article asks, “What is conservatorship and how do I get it? According to the article, the San Diego Superior Court website conservatorship page has an overview of the types of conservatorships available. It also contains downloadable forms, links, FAQs, and an outline of steps required to set up a conservatorship. Something similar to this service may be found on the California Courts website.
Seeking conservatorship is pretty much the point of last resort. A conservatorship of an estate can be avoided, if a person prepares in advance and creates a trust and arranges for appropriate powers of attorney with family members. These can be used without court intervention.
However, setting up a conservatorship for a person may be unavoidable, if a parent or other loved one—even a person who’s signed an advanced care directive and appointed an agent for power of attorney—becomes uncooperative, refuses to accept help, won’t go to a doctor, doesn’t eat properly, fails to maintain appropriate personal hygiene, or has become the victim of a scam artist.
Getting a conservatorship can be difficult, especially if the individual requiring assistance refuses and challenges the action in court. In that instance, they may hire an attorney of their own, or receive a court-appointed lawyer, to fight this. It also is becoming increasingly difficult to find attorneys to take on conservatorships, as attorney's fees are subject to judicial review, often are cut by the probate court in terms of both hours and hourly rate, yet the attorney is required to finance the fees because fees cannot be paid unless authorized by the probate court, which happens no more frequently than once a year.
When a conservatorship of a person or estate is granted, it is not the end of work for a conservator. In both situations, the court will follow up with investigator visits to make sure the conservatee or the estate are being cared for or managed properly. In the case of a conservatorship of an estate, there must be an accounting of all assets. This means that there are ongoing legal fees and proceedings.
If it is at all possible, speak with an experienced elder law attorney and put a plan in motion before the situation becomes urgent. It may be possible to avoid problems in the future, including the need to establish conservatorship. Giving adult children or close relatives powers of attorney, naming an agent, creating an advance health care directive and funding a trust may help avoid lengthy and expensive legal actions.
Reference: San Diego Union-Tribune (April 25, 2018) “What is conservatorship and how do I get it?