A conservator is a person who is appointed by the court to manage the affairs of another person who is called a conservatee. Therefore, the actions that the conservator may take are subject to court approval and court supervision. The type of power given to the conservator depends on whether the conservatorship is for the person or if it is a conservatorship of the estate. The conservator/conservatee relationship is a fiduciary relationship. The Public Conservator or Public Guardian Los Angeles is an example of entities that act as a conservator in addition to family members who may choose to become a conservator.
The conservator of the person has the following rights:
(a) Subject to subdivision (b), the guardian or conservator, but not a limited conservator, has the care, custody, and control of, and has charge of the education of, the ward or conservatee. This control shall not extend to personal rights retained by the conservatee, including, but not limited to, the right to receive visitors, telephone calls, and personal mail, unless specifically limited by court order. The court may issue an order that specifically grants the conservator the power to enforce the conservatee’s rights to receive visitors, telephone calls, and personal mail, or that directs the conservator to allow those visitors, telephone calls, and personal mail.
(b) Where the court determines that it is appropriate in the circumstances of the particular conservatee, the court, in its discretion, may limit the powers and duties that the conservator would otherwise have under subdivision (a) by an order stating either of the following:
(1) The specific powers that the conservator does not have with respect to the conservatee’s person and reserving the powers so specified to the conservatee.
(2) The specific powers and duties the conservator has with respect to the conservatee’s person and reserving to the conservatee all other rights with respect to the conservatee’s person that the conservator otherwise would have under subdivision (a).
(c) An order under this section (1) may be included in the order appointing a conservator of the person or (2) may be made, modified, or revoked upon a petition subsequently filed, notice of the hearing on the petition having been given for the period and in the manner provided in Chapter 3 (commencing with Section 1460) of Part 1.
(d) The guardian or conservator, in exercising his or her powers, may not hire or refer any business to an entity in which he or she has a financial interest except upon authorization of the court. Prior to authorization from the court, the guardian or conservator shall disclose to the court in writing his or her financial interest in the entity. For the purposes of this subdivision, “financial interest” shall mean (1) an ownership interest in a sole proprietorship, a partnership, or a closely held corporation, or (2) an ownership interest of greater than 1 percent of the outstanding shares in a publicly traded corporation, or (3) being an officer or a director of a corporation. This subdivision shall apply only to conservators and guardians required to register with the Statewide Registry under Chapter 13 (commencing with Section 2850).
The right to make medical decisions for the conservatee depends on whether the court has found the conservatee to lack capacity to make medical decisions.
The conservator of the estate has the following rights:
(a) Unless this article specifically provides a proceeding to obtain court authorization or requires court authorization, the powers and duties set forth in this article may be exercised or performed by the guardian or conservator without court authorization, instruction, approval, or confirmation. Nothing in this subdivision precludes the guardian or conservator from seeking court authorization, instructions, approval, or confirmation pursuant to Section 2403.
(b) Upon petition of the ward or conservatee, a creditor, or any other interested person, or upon the court’s own motion, the court may limit the authority of the guardian or conservator under subdivision (a) as to a particular power or duty or as to particular powers or duties. Notice of the hearing on a petition under this subdivision shall be given for the period and in the manner provided in Chapter 3 (commencing with Section 1460) of Part 1.
(Enacted by Stats. 1990, Ch. 79.)
2451.
The guardian or conservator may collect debts and benefits due to the ward or conservatee and the estate.
(Enacted by Stats. 1990, Ch. 79.)
2451.5.
The guardian or conservator may do any of the following:
(a) Contract for the guardianship or conservatorship, perform outstanding contracts, and, thereby, bind the estate.
(b) Purchase tangible personal property.
(c) Subject to the provisions of Chapter 8 (commencing with Section 2640), employ an attorney to advise and represent the guardian or conservator in all matters, including the conservatorship proceeding and all other actions or proceedings.
(d) Employ and pay the expense of accountants, investment advisers, agents, depositaries, and employees.
(e) Operate for a period of 45 days after the issuance of the letters of guardianship or conservatorship, at the risk of the estate, a business, farm, or enterprise constituting an asset of the estate.
(Added by Stats. 2007, Ch. 553, Sec. 16. Effective January 1, 2008.)
2452.
(a) The guardian or conservator may endorse and cash or deposit any checks, warrants, or drafts payable to the ward or conservatee which constitute property of the estate.
(b) If it appears likely that the estate will satisfy the conditions of subdivision (b) of Section 2628, the court may order that the guardian or conservator be the designated payee for public assistance payments received pursuant to Part 3 (commencing with Section 11000) or Part 4 (commencing with Section 16000) of Division 9 of the Welfare and Institutions Code.
(Enacted by Stats. 1990, Ch. 79.)
2453.
The guardian or conservator may deposit money belonging to the estate in an insured account in a financial institution in this state. Unless otherwise provided by court order, the money deposited under this section may be withdrawn without order of court.
(Enacted by Stats. 1990, Ch. 79.)
2453.5.
(a) Subject to subdivision (b), where a trust company is a guardian or conservator and in the exercise of reasonable judgment deposits money of the estate in an account in any department of the corporation or association of which it is a part, it is chargeable with interest thereon at the rate of interest prevailing among banks of the locality on such deposits.
(b) Where it is to the advantage of the estate, the amount of cash that is reasonably necessary for orderly administration of the estate may be deposited in a checking account that does not bear interest which is maintained in a department of the corporation or association of which the trust company is a party.
(Enacted by Stats. 1990, Ch. 79.)
2454.
The guardian or conservator may deposit personal property of the estate with a trust company for safekeeping. Unless otherwise provided by court order, the personal property may be withdrawn without order of court.
(Enacted by Stats. 1990, Ch. 79.)
2455.
(a) A trust company serving as guardian or conservator may deposit securities that constitute all or part of the estate in a securities depository as provided in Section 775 of the Financial Code.
(b) If the securities have been deposited with a trust company pursuant to Section 2328 or Section 2454, the trust company may deposit the securities in a securities depository as provided in Section 775 of the Financial Code.
(c) The securities depository may hold securities deposited with it in the manner authorized by Section 775 of the Financial Code.
(Enacted by Stats. 1990, Ch. 79.)
2456.
(a) Upon application of the guardian or conservator, the court may, with or without notice, order that money or other personal property be deposited pursuant to Section 2453 or 2454, and be subject to withdrawal only upon authorization of the court.
(b) The guardian or conservator shall deliver a copy of the court order to the financial institution or trust company at the time the deposit is made.
(c) No financial institution or trust company accepting a deposit pursuant to Section 2453 or 2454 is on notice of the existence of an order that the money or other property is subject to withdrawal only upon authorization of the court unless it has actual notice of the order.
(Enacted by Stats. 1990, Ch. 79.)
2457.
The guardian or conservator may maintain in good condition and repair the home or other dwelling of either or both of the following:
(a) The ward or conservatee.
(b) The persons legally entitled to such maintenance and repair from the ward or conservatee.
(Enacted by Stats. 1990, Ch. 79.)
2458.
With respect to a share of stock of a domestic or foreign corporation held in the estate, a membership in a nonprofit corporation held in the estate, or other property held in the estate, a guardian or conservator may do any one or more of the following:
(a) Vote in person, and give proxies to exercise, any voting rights with respect to the share, membership, or other property.
(b) Waive notice of a meeting or give consent to the holding of a meeting.
(c) Authorize, ratify, approve, or confirm any action which could be taken by shareholders, members, or property owners.
(Enacted by Stats. 1990, Ch. 79.)
2459.
(a) The guardian or conservator may obtain, continue, renew, modify, terminate, or otherwise deal in any of the following for the purpose of providing protection to the ward or conservatee or a person legally entitled to support from the ward or conservatee:
(1) Medical, hospital, and other health care policies, plans, or benefits.
(2) Disability policies, plans, or benefits.
(b) The conservator may continue in force any of the following in which the conservatee, or a person legally entitled to support, maintenance, or education from the conservatee, has or will have an interest:
(1) Life insurance policies, plans, or benefits.
(2) Annuity policies, plans, or benefits.
(3) Mutual fund and other dividend reinvestment plans.
(4) Retirement, profit-sharing, and employee welfare plans or benefits.
(c) The right to elect benefit or payment options, to terminate, to change beneficiaries or ownership, to assign rights, to borrow, or to receive cash value in return for a surrender of rights, or to take similar actions under any of the policies, plans, or benefits described in subdivision (b) may be exercised by the conservator only after authorization or direction by order of the court, except as permitted in Section 2544.5. To obtain such an order, the conservator or other interested person shall petition under Article 10 (commencing with Section 2580).
(d) Notwithstanding subdivision (c), unless the court otherwise orders, the conservator without authorization of the court may borrow on the loan value of an insurance policy to pay the current premiums to keep the policy in force if the conservatee followed that practice prior to the establishment of the conservatorship.
(e) The guardian may give the consent provided in Section 10112 of the Insurance Code without authorization of the court, but the guardian may use funds of the guardianship estate to effect or maintain in force a contract entered into by the ward under Section 10112 of the Insurance Code only after authorization by order of the court. To obtain such an order, the guardian, the ward, or any other interested person shall file a petition showing that it is in the best interest of the ward or of the guardianship estate to do so. Notice of the hearing on the petition shall be given for the period and in the manner provided in Chapter 3 (commencing with Section 1460) of Part 1.
(f) Nothing in this section limits the power of the guardian or conservator to make investments as otherwise authorized by this division.
(Amended by Stats. 1996, Ch. 86, Sec. 1. Effective January 1, 1997.)
2460.
The guardian or conservator may insure:
(a) Property of the estate against loss or damage.
(b) The ward or conservatee, the guardian or conservator, and all or any part of the estate against liability to third persons.
(Enacted by Stats. 1990, Ch. 79.)
2461.
(a) The guardian or conservator may prepare, execute, and file tax returns for the ward or conservatee and for the estate and may exercise options and elections and claim exemptions for the ward or conservatee and for the estate under the applicable tax laws.
(b) Notwithstanding Section 2502, the guardian or conservator may pay, contest, and compromise taxes, penalties, and assessments upon the property of the estate and income and other taxes payable or claimed to be payable by the ward or conservatee or the estate.
(Enacted by Stats. 1990, Ch. 79.)
2462.
Subject to Section 2463, unless another person is appointed for that purpose, the guardian or conservator may:
(a) Commence and maintain actions and proceedings for the benefit of the ward or conservatee or the estate.
(b) Defend actions and proceedings against the ward or conservatee, the guardian or conservator, or the estate.
(c) File a petition commencing a case under Title 11 of the United States Code (Bankruptcy) on behalf of the ward or conservatee.
(Enacted by Stats. 1990, Ch. 79.)
2463.
(a) The guardian or conservator may bring an action against the other cotenants for partition of any property in which the ward or conservatee has an undivided interest if the court has first made an order authorizing the guardian or conservator to do so. The court may make such an order ex parte on a petition filed by the guardian or conservator.
(b) The guardian or conservator may consent and agree, without an action, to a partition of the property and to the part to be set off to the estate, and may execute deeds or conveyances to the owners of the remaining interests of the parts to which they may be respectively entitled, if the court has made an order under Article 5 (commencing with Section 2500) authorizing the guardian or conservator to do so.
(c) If the ward or conservatee, or the guardian or conservator as such, is made a defendant in a partition action, the guardian or conservator may defend the action without authorization of the court.
(Enacted by Stats. 1990, Ch. 79.)
2464.
(a) If it is to the advantage of the estate to accept a deed to property which is subject to a mortgage or deed of trust in lieu of foreclosure of the mortgage or sale under the deed of trust, the guardian or conservator may, after authorization by order of the court and upon such terms and conditions as may be imposed by the court, accept a deed conveying the property to the ward or conservatee.
(b) To obtain an order under this section, the guardian or conservator shall file a petition showing the advantage to the estate of accepting the deed. Notice of the hearing on the petition shall be given for the period and in the manner provided in Chapter 3 (commencing with Section 1460) of Part 1.
(c) The court shall make an order under this section only if the advantage to the estate of accepting the deed is shown by clear and convincing evidence.
(Enacted by Stats. 1990, Ch. 79.)
2465.
The guardian or conservator may dispose of or abandon valueless property.
(Enacted by Stats. 1990, Ch. 79.)
2466.
The guardian or conservator may advance the guardian’s or conservator’s own funds for the benefit of the ward or conservatee or the estate and may reimburse the advance out of the income and principal of the estate first available. With court authorization or approval, interest on the amount advanced may be allowed at the legal rate payable on judgments.
(Enacted by Stats. 1990, Ch. 79.)
2467.
(a) The guardian or conservator continues to have the duty of custody and conservation of the estate after the death of the ward or conservatee pending the delivery thereof to the personal representative of the ward’s or conservatee’s estate or other disposition according to law.
(b) The guardian or conservator has such powers as are granted to a guardian or conservator under this division as are necessary for the performance of the duty imposed by subdivision (a).
(Enacted by Stats. 1990, Ch. 79.)
2468.
(a) The conservator of the estate of a disabled attorney who was engaged in the practice of law at the time of his or her disability, or other person interested in the estate, may bring a petition seeking the appointment of an active member of the State Bar of California to take control of the files and assets of the practice of the disabled member.
(b) The petition may be filed and heard on such notice that the court determines is in the best interests of the persons interested in the estate of the disabled member. If the petition alleges that the immediate appointment of a practice administrator is required to safeguard the interests of the estate, the court may dispense with notice provided that the conservator is the petitioner or has joined in the petition or has otherwise waived notice of hearing on the petition.
(c) The petition shall indicate the powers sought for the practice administrator from the list of powers set forth in Section 6185 of the Business and Professions Code. These powers shall be specifically listed in the order appointing the practice administrator.
(d) The petition shall allege the value of the assets that are to come under the control of the practice administrator, including but not limited by the amount of funds in all accounts used by the disabled member. The court shall require the filing of a surety bond in the amount of the value of the personal property to be filed with the court by the practice administrator. No action may be taken by the practice administrator unless a bond has been duly filed with the court.
(e) The practice administrator shall not be the attorney representing the conservator.
(f) The court shall appoint the attorney nominated by the disabled member in a writing, including but not limited to the disabled member’s will, unless the court concludes that the appointment of the nominated person would be contrary to the best interests of the estate or would create a conflict of interest with any of the clients of the disabled member.
(g) The practice administrator shall be compensated only upon order of the court making the appointment for his or her reasonable and necessary services. The law practice shall be the source of the compensation for the practice administrator unless the assets are insufficient, in which case, the compensation of the practice administrator shall be charged against the assets of the estate as a cost of administration. The practice administrator shall also be entitled to reimbursement of his or her costs.
(h) Upon conclusion of the services of the practice administrator, the practice administrator shall render an accounting and petition for its approval by the superior court making the appointment. Upon settlement of the accounting, the practice administrator shall be discharged and the surety on his or her bond exonerated.
(i) If the court appointing the practice administrator determines upon petition that the disabled attorney has recovered his or her capacity to resume his or her law practice, the appointment of a practice administrator shall forthwith terminate and the disabled attorney shall be restored to his or her practice.
(j) For purposes of this section, the person appointed to take control of the practice of the disabled member shall be referred to as the “practice administrator” and the conservatee shall be referred to as the “disabled member.”
(Added by Stats. 1998, Ch. 682, Sec. 4. Effective January 1, 1999.)
CONSERVATOR/CONSERVATEE
At times, residents of Los Angeles Tarzana and Reseda may wonder if the conservator has the right to move the conservatee (disabled person) out of their home. The answer is that the conservatee cannot be moved from their home without a court hearing and the court authorizing the move. The conservatee can be temporarily housed in another location pending a court hearing.
These are the factors that the court may consider when determining if the conservatee can be permanently moved from his or her home:
- A doctor has ordered 24/7 care in a facility, such as a skilled nursing facility.
- 24/7 care is ordered but, the conservatee cannot afford in-home care based on the 24/7 need.
- The condition of the home is so that the conservatee should not live in it.
- The health and well-being of the conservatee is in danger if he or she continues to live in the home. There are times when there is mold in the home, or another health hazard which the court will consider as a reason for the move.
- A better housing alternative is available for the conservatee.
If you want more information about a Los Angeles Conservator, or require help for a conservatee/conservator, please feel free to call us. If you need assistance with a conservatorship for a Tarzana or Reseda resident, or if you need help from an attorney near Tarzana or Reseda, contact Mina Sirkin at 818.340.4479 or [email protected]
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