A conservatorship is a court proceeding in which a judge appoints a responsible person (the conservator) to care for an adult who cannot care for themselves or manage their own finances. It is one of the most significant legal actions you can take regarding another person, because it removes fundamental rights from the individual placed under conservatorship (the conservatee).
California law recognizes several types of conservatorships, each designed for different circumstances. Understanding the differences is essential for families facing the difficult decision of whether to pursue one.
When Is a Conservatorship Needed?
A conservatorship may be necessary when an adult is unable to provide for their own personal needs, such as food, clothing, shelter, and medical care, or is unable to manage their own financial affairs. Common situations include:
- An elderly parent with advanced dementia who is being financially exploited or neglecting their own care.
- An adult with a traumatic brain injury who cannot make informed decisions about medical treatment.
- An adult with a severe developmental disability who needs assistance with daily living and financial management.
- A person with a serious mental illness who refuses voluntary treatment and poses a danger to themselves.
A conservatorship should always be considered a last resort. California law requires the court to find that less restrictive alternatives have been considered and are insufficient before granting a conservatorship.
General Conservatorship (Probate Conservatorship)
A general conservatorship is the most common type and is governed by the California Probate Code. It is typically used for elderly adults who can no longer manage their personal care or finances due to age related conditions such as dementia, Alzheimer's disease, or stroke.
A general conservatorship has two components that can be established separately or together:
- Conservator of the person: Makes decisions about the conservatee's health, food, clothing, shelter, and personal care.
- Conservator of the estate: Manages the conservatee's finances, including paying bills, managing investments, and handling real property.
The conservator must file regular accountings with the court and obtain court approval for major decisions, such as selling the conservatee's home or placing them in a locked facility. The court maintains ongoing oversight throughout the conservatorship.
Limited Conservatorship
A limited conservatorship is a type of general conservatorship designed specifically for adults with developmental disabilities. Rather than removing all decision-making authority, a limited conservatorship grants the conservator only the specific powers that the conservatee needs help with, while preserving as much independence as possible.
The court may grant a limited conservator authority over some or all of the following seven areas: deciding where the conservatee lives, accessing confidential records, consenting to medical treatment, controlling social and sexual contacts, making educational decisions, entering into contracts on the conservatee's behalf, and managing their finances.
To qualify for a limited conservatorship, the proposed conservatee must be a client of a California Regional Center, which provides services to individuals with developmental disabilities.
LPS Conservatorship
An LPS conservatorship (named after the Lanterman-Petris-Short Act) is fundamentally different from a general conservatorship. It is designed for individuals with serious mental illness who are gravely disabled, meaning they are unable to provide for their own food, clothing, or shelter as a result of a mental health disorder.
Key differences between LPS and general conservatorships:
- Who can petition: Only a county-designated agency (typically the county public guardian or a mental health facility) can initiate an LPS conservatorship. Family members cannot file directly.
- Duration: An LPS conservatorship is initially granted for one year and must be renewed annually. A general conservatorship continues until the court terminates it.
- Treatment authority: An LPS conservator can authorize involuntary psychiatric treatment, including placement in a locked mental health facility and, in some cases, involuntary medication. A general conservator cannot authorize involuntary mental health treatment without separate court authorization.
- Right to jury trial: The proposed LPS conservatee has the right to a jury trial on whether they are gravely disabled. General conservatorship matters are decided by a judge.
The LPS conservatorship process typically begins after a person has been placed on a 72 hour psychiatric hold (5150 hold), followed by a 14 day certification (5250), and a 30 day intensive treatment hold. If the treating facility believes the person remains gravely disabled, it can refer the case to the county for an LPS conservatorship petition.
The Petition Process
For a general conservatorship, the process begins when a concerned person (usually a family member) files a petition with the probate court in the county where the proposed conservatee lives. The petition must include a description of why the conservatorship is needed and what powers are being requested.
After filing, the following steps occur:
- Notice: The proposed conservatee and all close relatives must be notified of the petition and the hearing date.
- Court investigation: The court appoints a court investigator who interviews the proposed conservatee, explains their rights, and files a report with the court. The investigator assesses whether the conservatorship is necessary and whether less restrictive alternatives are available.
- Legal representation: If the proposed conservatee does not have an attorney, the court may appoint one, particularly if the conservatee objects to the conservatorship.
- Hearing: The judge reviews the petition, the investigator's report, and any objections before deciding whether to grant the conservatorship.
The entire process typically takes two to three months from filing to the initial hearing, though contested cases can take significantly longer.
Alternatives to Conservatorship
Because a conservatorship removes fundamental rights, California courts require petitioners to consider and exhaust less restrictive alternatives first. Common alternatives include:
- Durable power of attorney: If the person signed one while they still had capacity, an agent can manage their finances without court involvement.
- Advance healthcare directive: Allows a designated agent to make medical decisions without a conservatorship.
- Living trust: A successor trustee can manage trust assets if the grantor becomes incapacitated.
- Representative payee: The Social Security Administration can appoint someone to manage Social Security benefits.
- Supported decision-making agreement: A newer alternative that allows the individual to choose trusted advisors who help them understand and make decisions, without removing decision-making authority.
The best way to avoid a conservatorship is to plan ahead. A comprehensive estate plan with a durable power of attorney, healthcare directive, and living trust provides the legal framework for managing your affairs during incapacity without court involvement.
This article is for informational purposes only and does not constitute legal advice. Conservatorship law is complex and fact-specific. Contact MVP Law Group for a consultation to discuss whether a conservatorship is appropriate for your family's situation.