What is a conservator?
Conservatorship is a legal proceeding in which the court evaluates the vulnerability of an adult who may be unable to take care of his or her own: needs for shelter, food, medical care, manage personal finances, or may be subject to undue influence.
Who can be a conservator?
A Conservator is usually a family member or close friend. It is the responsibility of the Conservator to ensure the safety and well-being of the adult who cannot care for himself. If there is no one willing to act as Conservator, a private professional Conservator or the Public Guardian may be appointment (PrC 1812 (a)-1820).
There Are Three Types of Conservatorship Actions
A General Probate Conservatorship (PrC 1800, et seq.) is for all other adults who are unable to provide for their personal needs due to physical injury, dementia or other reasons rendering them incapable of caring for themselves or making them subject to undue influence.
A Limited Conservatorship (PrC 1827.5 1828.5 2351.5) is only for a person who is developmentally disabled. In this type of conservatorship the powers of the conservator are limited so that the disabled person may live as independently as possible.
An LPS (Lanternman-Petris-Short) Conservatorship(W&I 5350-5371) is for a gravely disabled person due to a mental disorder who may be a danger to themselves or others and requires hospitalization in a psychiatric facility. An LPS conservatorship requires the annual reappointment of the conservator. A person under an LPS conservatorship may be placed in a locked facility. There are many extra protections in LPS conservatorships to ensure that the conservatee's civil rights are not being violated. LPS conservatorships are confidential cases and may only be accessed by parties to the action or their attorney of record.
What happens after filing the petition for a probate conservatorship?
An investigator will interview the proposed conservatee, conservator(s) and any other agencies or individuals who may be able to provide pertinent information to the court. The investigator will prepare a report for the court’s to review prior to the court hearing.
The Court will monitor probate General and Limited Conservatorships.
A court appointed investigator will visit the conservatee and speak with the conservator and any other persons or agencies providing services to the conservatee on a yearly basis.
If conservatorship of the estate has been established the court will require annual or biennially accountings of the estate.
How do I establish a probate conservatorship?
- Step 1 - Gather the information you will need to fill out your forms
- Step 2 - Fill out your forms
- Step 3 - File your forms
- Step 4 - Get a hearing date and case number
- Step 5 - Serve your forms
Step 6 - Attend the proposed conservator training class. To enroll in the class, visit the Online Conservatorship Orientation (click here)
Managing the Conservatorship of the Estate
Prudent investments - As conservator of the estate, you must manage the conservatee’s assets with the care of a prudent person dealing with someone else’s property. This means that you must be cautious and may not make speculative or risky investments.
Keeping estate assets separate –As conservator of the estate, you must keep the money and property of the conservatee’s estate separate from everyone else’s, including your own. When you open a bank account for the estate, the account name must indicate that it is a conservatorship account and not your personal account.
You should use the conservatee’s social security number when opening estate accounts. You should never deposit estate funds in your personal account or otherwise mix them with your own funds or anyone else’s funds, even for brief periods. Securities in the estate must be held in a name that shows that they are estate property and not your personal property.
Interest-bearing Accounts and Other Investments
Except for checking accounts intended for ordinary expenses, you should place estate funds in interest-bearing accounts. You may deposit estate funds in insured accounts in federally insured financial institutions, but you should not put more than $250,000 in any single institution. You should consult with an attorney before making other kinds of investments.
Is required in most all Conservatorships of the estate. The amount of the bond is calculated by combining the value of the conservatee’s personal property, plus the income from all sources for one year, and the bond recovery costs as prescribed in California Rules of Court 7.207 (10% of the estate up to $500,000). If the bond becomes insufficient, the Conservator has a duty to inform the court and request a sufficient amount for bond. To reduce the amount of bond you may petition the court for an order to place a portion of the conservatee’s money into a blocked account.
A blocked account is an account with a financial institution in which money or securities are placed. No person may withdraw funds from a blocked account without the court’s permission.
Depending on the amount and character of the conservatee’s property, the conservator may elect or the court may require that a portion of the estate assets be placed in a blocked account. As conservator of the estate, you must follow the direction of the court and the procedures required to deposit funds in this type of account. The use of a blocked account is a safeguard and may save the estate the cost of a bond.
As conservator of the estate, you will have other restrictions on your authority to deal with estate assets. Without prior order of the court, you may not pay fees to yourself or your attorney. You may not make a gift of estate assets to anyone. You may not borrow money from the estate. You may not use estate funds to purchase real property without prior court order.
If you do not obtain the court’s permission to spend estate funds, you may be compelled to reimburse the estate from your own personal funds and may be removed as conservator. You should consult with an attorney concerning the legal requirements relating to sales, leases, mortgages, and investment of estate property.
Inventory of Estate Property
Locate the estate’s property –As conservator of the estate, you must locate, take possession of, and protect the conservatee’s income and assets that will be administered in the estate. You must change the ownership of all assets into the conservatorship estate’s name. For real estate, you should record a copy of your Letters of Conservatorship with the county recorder in each county where the conservatee owns real property.
Determine the value of the property –As conservator of the estate, you must arrange to have a court-appointed referee determine the value of the estate property unless the appointment is waived by the court. You, rather than the referee, must determine the value of certain “cash items.” An attorney can advise you about how to do this.
File an inventory and appraisal –As conservator of the estate, you must file an inventory and appraisal within 90 days after your appointment. You may be required to return to court 90 days after your appointment as conservator of the estate, to ensure that you have properly filed the inventory and appraisal.
Notice to Conservatee of filing inventory and appraisal –A copy of the inventory and appraisal and instructions on how to object must be served on the conservatee and all relatives to the second degree.
Insurance coverage – As conservator of the estate, you should make sure that there is appropriate and sufficient insurance covering the assets and risks of the estate. You should maintain the insurance in force throughout the entire period of the conservatorship or until the insured asset is sold.
Record Keeping and Accounting
As conservator of the estate, you must keep complete, accurate records of each financial transaction affecting the estate. The checkbook for the conservatorship checking account is your indispensable tool for keeping records of income and expenditures. You should also keep receipts for all purchases.
Record keeping is critical because you will have to prepare an accounting of all money and property you have received, what you have spent, the date of each transaction, and its purpose. You will also have to be able to describe in detail what is left after you have paid the estate’s expenses.
As conservator of the estate, you must file a petition requesting that the court review and approve your accounting one year after your appointment and at least every two years after that. The court may ask that you justify some or all expenditures. You should have receipts and other documents available for the court’s review, if requested.
If you do not file your accounting as required, the court will order you to do so. You may be removed as conservator for failure to file an accounting.
As conservator of the estate, you must comply with all state and local rules when filing your accounting. A particular format is specified in the Probate Code, which you must follow when you present your account to the court. You should check local rules for any special local requirements.
An attorney can advise you and help you prepare your inventories, accounting, and petitions to the court. If you have any questions, you should consult with an attorney.
Watch Video “With Heart: Understanding Conservatorship.”