Conservatorships

At De Vries Law, P.C., we proudly represent parties seeking to ensure the best interests of the conservatee which often involves establishing this protective proceeding and then holding all who committed harm to the conservatee accountable.

What is a conservatorship?

A conservatorship is a protective proceeding designed to protect a vulnerable adult from physical or financial harm. A court will only establish a conservatorship based on sufficient admissible evidence that an adult requires the court's protection, and, that a conservatorship is the least restrictive alternative to provide that protection. 

The establishment of a conservatorship, however, is a drastic measure which implicates a conservatee's civil rights. Therefore, before a court will issue any ruling in a conservatorship proceeding, many due process, notice, and statutory requirements and procedures must be satisfied.

Who may a court appoint as a conservator? 

A conservator may be a professional fiduciary who is licensed by the State of California, or, a lay person, usually a family member or close friend of the conservatee or the person who the conservatee nominated in their estate-planning documents.

The court may appoint one person as both conservator of person and conservator of estate, or one person as conservator of person and a different person as conservator of estate.  A court may appoint co-conservators.   

Why do concerned individuals seek to establish a conservatorship? 

Concerned individuals should consider whether a conservatorship is appropriate to protect an elder or adult with a disability who is unable to manage their personal care or finances and has been subject to neglect, harm, or exploitation. An adult may only be conserved if they are experiencing a cognitive incapacity or demonstrating an inability to withstand undue influence, or fraud, or has an intellectual disability.  

What distinguishes a conservatorship from a civil lawsuit?

Conservatorship proceedings are unique. 

To begin, conservatorships are adjudicated by a court sitting in equity, regardless of whether the proceeding is initiated in a dedicated Probate Department or in the court's Civil Department. The court's focus on equity is infused into all aspects of the proceeding. 

In all conservatorship proceedings, the court acts as a quasi “super-fiduciary” to oversee the appointed conservator to ensure the conservatee is protected. A conservator of person handles a conservatee's personal affairs; a conservator of estate handles a conservatee's financial affairs. Once appointed, a conservator steps into the legal shoes of the conservatee's person, estate, or both. The court closely monitors the conservator for the duration of the conservatorship. The conservator must comply with the procedural and substantive requirements of the Probate Code. This includes seeking court approval prior to taking certain actions, such as initiating litigation on the conservatee's behalf, or paying attorneys' fees.

By contrast, a civil action is adjudicated by a civil court whose function is to resolve factual and legal disputes based on the merits of the parties' allegations.

Next, the two proceedings have different lifespans. 

A conservatorship is initiated by filing a petition alleging facts to support the finding that a protective proceeding is required to protect a compromised adult's person, estate, or both. If a court grants the petition to establish the conservatorship, and thus resolves the legal and factual allegations in that initial petition, the conservatorship proceeding remains an open matter and is ongoing; the conservatorship/probate court enjoys exclusive and continuing jurisdiction over the conservatee's person, estate, or both, to oversee the conservator's actions and the conservatee's well-being until the circumstances which supported the imposition of the conservatorship no longer exist and the proceeding is terminated by subsequent petition or the conservatee dies. 

Because a conservatorship proceeding and the court's jurisdiction are ongoing, a conservator may, and in many cases must, file subsequent petitions in the proceeding to address issues that arise throughout the course of the conservatorship. Each petition is treated as its own initiating matter, akin to a complaint in a civil action, such that the court may adjudicate many different matters or disputes within the same conservatorship proceeding. For example, a conservator may file a subsequent petition alleging elder abuse against third parties and may include additional related claims and remedies uniquely available in conservatorship proceedings. 

Unlike conservatorships, in civil litigation the complaint is the initiating document in which each plaintiff alleges facts and causes of action against each defendant. The entire proceeding is designed to adjudicate only the causes of action alleged in the operative complaint (and any cross-complaint filed in that action). The result and end of civil litigation is a dismissal through judgment for each prevailing party or a settlement.

Another significant difference between the two proceedings is the role of the court, and other parties, in the entire proceeding.

Numerous individuals are involved in a conservatorship proceeding who are not relevant or required in civil actions. 

Who are the individuals involved in a conservatorship proceeding? 

The conservatorship proceeding involves a number of possible individuals as follows.

Protected person aka the Conservatee: The individual whose personal or financial affairs are at issue and is protected by the appointment of a conservator.

Petitioner: This is the person who files a petition to initiate a conservatorship. It is not necessary for the petitioner to also be the proposed conservator.

Court-appointed counsel: The court will appoint an attorney to represent the proposed conservatee. Alternatively, a conservatee may select private counsel.

Conservator of Person: If the court finds by clear and convincing evidence that the proposed conservatee is unable properly to provide for their personal needs for physical health, food, clothing, or shelter, it may appoint a Conservator of the Person.

Conservator of Estate: If the court finds by clear and convincing evidence that the proposed conservatee is substantially unable to manage their financial resources or to resist fraud or undue influence, it may appoint a Conservator of the Estate.

Guardian ad Litem (GAL): A neutral individual, often an attorney or trained professional, appointed by the Court to advise the court as to a (proposed) conservatee's best interests relating to a particular issue. A Guardian ad Litem serves as the court's ears and eyes to report and opine what is the in the best interest of the conservatee. 

Court Investigator: After a petition for the appointment of a conservator is filed, the court will assign an investigator to conduct an investigation regarding a set of designated criteria relating to the petition and file a report. The investigator must meet personally with the conservatee, and also interviews the petitioner, the proposed conservator, family members or other interested parties involved in the proposed conservatee's life, the proposed conservatee's care or medical providers, or third parties, such as Adult Protective Services.  A court investigator will also be assigned to conduct review investigations at periodic intervals if a conservatorship is instituted. 

Private Professional Fiduciary: A licensed individual who must comply with the California Professional Fiduciaries Act.  Professional fiduciaries are often engaged in complex or contested cases when it would be in the best interest of the (proposed) conservatee to have a neutral, bonded, and professional third party to serve as conservator.  Most California professional fiduciaries are members of the Professional Fiduciary Association of California (PFAC).  PFAC's website may be found at https://pfac-pro.org/. 

Probate Examiner: When a petition is filed in an active conservatorship proceeding, the court assigns a “Probate Examiner” to review the petition for procedural compliance in advance of the hearing on the petition.  The Examiner may also note substantive issues raised by the petition for the court's attention.  In many counties, an Examiner will issue “Notes” to advise the petitioner of any procedural issues that must be cured prior to the hearing or advise of substantive issues the Court may wish to review more closely or discuss at the hearing.  Some counties issue tentative rulings, rather than Examiner's Notes, for this purpose.  

Probate Referee: Each county has a panel of individuals from which the court will appoint a Probate Referee.  The Probate Referee appraises the value of the conservatee's real and personal property and ascribes a value to it as of the date of the conservator's appointment. Probate Referees are commissioned by the California State Controller's Office.

Interested Persons: The Probate Code grants “interested persons” the right to participate in a conservatorship proceeding even though they are not “parties” to the proceeding, themselves. The question of who qualifies as an “interested person” in a given conservatorship proceeding is assessed as it relates to the petition or issue under consideration at that time.  Interested persons often include the (proposed) conservatee's relatives and friends, fiduciaries appointed in the (proposed) conservatee's estate planning documents, creditors, or other people who the court finds to have a legitimate interest in the well-being of the (proposed) conservatee's person or estate. An interested person may be authorized to, among other actions, file petitions, oppose petitions filed by others, receive notice, and appear at hearings.