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When someone is no longer able to handle his or her own financial or personal affairs, the Court can appoint an individual or professional to act on behalf of the incapacitated person.
The legal terminology for these protective proceedings varies state by state. In some states, the term "guardianship" is used for all protective proceedings, whether they are conducted for a minor or adult. In other states, the term "guardianship" is used to describe a proceeding giving authority over an individual's financial affairs, and "conservatorship" is used to describe a proceeding giving authority over an individual's personal affairs. In California, the term used is simply conservatorship.
In a conservatorship of the person, a court-appointed person of trust, the conservator, manages the personal care of a person who cannot properly provide for his or her personal needs, like their physical health, medical care, food, clothing, or shelter. The conservator decides where the conservatee lives and may be required to decide whether the conservatee should live at home or in an institution. The conservator must make sure that the place selected is the "least restrictive" appropriate alternative that is available and necessary to meet the individual's needs.
If the incapacitated person plans ahead and signs durable powers of attorney for finances and health care, that person won't need a conservator because the person named in those documents can take charge. However, if no planning has been done-which is, unfortunately, a common situation-then family members must ask a court to appoint a conservator or guardian.
Most conservatorships start in a similar fashion. A concerned person notices that a friend, family member, or neighbor appears to be having trouble properly providing for personal needs, managing financial resources, or resisting fraud or undue influence. The concerned person contacts an attorney or social services for assistance.
A relative, friend or public official petitions the court for the appointment of a conservator of an individual. The petition must contain facts establishing why the individual cannot manage his financial affairs and/or make decisions concerning his personal care.
Once a petition is filed with the court, a court investigator is appointed to interview the proposed conservatee. The investigator reports back to the court with an opinion on whether or not the appointment of a conservator is justified.
Anyone-including the proposed conservatee, family members, and friends-may object to the conservatorship in general, or to the specific choice of conservator. Someone who wants to block a conservatorship must file papers with the court, inform all interested parties (the proposed conservatee, family members, and possibly close friends), and attend a legal hearing.
When someone begins a conservatorship proceeding, a judge must hear evidence on the person's mental capacity. If the judge concludes that a conservator is necessary, then he or she will appoint one -- frequently a spouse or an adult child.
It's rare, but sometimes several family members or friends may vie for the job. If that happens, the judge adheres to preferences established by state law. Most states give preference to the conservatee's spouse, registered domestic partner, adult children, adult siblings, or other blood relatives. But a judge who thinks someone else is best for the job may choose to select that person instead.
Without strong evidence of what the conservatee would have wanted, it is unlikely that a nonrelative would be appointed conservator if a relative is available to serve. Because of this, conservatorship proceedings may cause great heartache if an estranged relative is chosen as conservator over the conservatee's partner or close friend. If no one suitable is available to serve as conservator, the judge may appoint a public or other professional conservator.
A conservatorship is a legal concept, but it can also arouse profound emotional and personal issues for the conservator, the conservatee, and other family members. If you feel that a family member will be objecting to the conservatorship, it is strongly suggested that you consult an attorney experienced in handling conservatorship proceedings before commencing them.
The purpose of this column is to provide general information on the law, which is subject to change. It is not legal advice. Consult a lawyer if you have a specific legal problem.
Published: March 29, 2012 - Volume 10 - Issue 50