If your spouse of other loved one becomes incapacitated without having a proper power of attorney prepared for health care (PAHC) or a durable power of attorney for financial matters (DPAFM), a conservatorship may be needed. In a conservatorship, the court appoints a conservator to take charge of the incapacitated person’s (the conservatee) personal needs, financial matters or both.

In a conservatorship, the court determines that the conservatee does not have the sufficient capacity to care for their own personal needs or make decisions. In a conservatorship of the estate, the court determines that the conservatee does not have the legal capacity to enter into transactions involving financial matters.

How to Establish a Conservatorship

To create a new conservatorship, you need a court proceeding to determine whether the person in question is indeed considered incapacitated according to the law. The judge tries to put the best interests of the conservatee first so he/she will carefully consider the best person to be put in this position in this order:

• First choice is always the spouse, domestic partner, or other nominee
• Second- an adult child or the child’s nominee
• Third- a sibling or sibling’s nominee
• Last- any other eligible person or entity (appointed attorney would work here)

The Conservator’s Responsibilities

The conservator’s primary role is to ensure that the conservatee’s needs are met. The duties include: making decisions about their living arrangements and daily care like planning for the conservatee’s meals, clothing and health care.

A conservator of the estate handles the financial matters which include:

• Filing an Inventory and Appraisal document with the court; this document lists all the assets owned by the conservatee and the value of each on the date the conservator was appointed.
• Paying the conservatee’s bills and expenses
• Making appropriate investments on their behalf
• Applying for entitlement benefits
• Keeping financial records and filing periodic accountings with the court

All conservators are required to have a copy of the Judicial Counsel of California’s Handbook for Conservator that can be viewed online at courtinfo.ca.gov/selfhelp, under the “Seniors” heading.

Unlike an Agent under a PAHC or DPAFM, a conservator must submit to the court:

• Formal written documents informing the court of address changes for all relevant persons.
• Regular accountings that explain how the conservatee’s finances were handled.
• Intentions to sell, abandon or give away any of the conservatee’s personal or real property.
• Any other matters that the court orders the conservator to report on.

Unlike a PAHC or DPAFM Agent, the conservator may not resign without first obtaining the court’s permission. If you are in this situation or would like to plan ahead in case the instance of incapacitation happens to your family, contact one of our attorneys today for a free consultation. Being prepared is the best way to avoid this confusing situation.