Certain California Conservatorships and circumstances call for the question “how do you get a Conservatorship in a California Court?” The leal process of establishing a conservatorship or getting a conservatorship in Ca is one that can be accomplished by paying attention to California law details which we will discuss below.
How Do You Determine If A Conservatorship Is Necessary?
Family members who are considering a conservatorship generally get to a place of inquiry about conservatorships when a person in their family is no longer able to care for himself or herself, or where that person needs protection from fraud by others, or cannot manage his or her own money. We have developed a checklist of conservatorship signs which you can get here. Generally, Conservatorships Law requires that evidence of incapacity be obtained from a physician or a psychologist who have the expertise to identify the mental dysfunctions of the person. This determination is done by a Capacity Declaration.
There are signs long before a conservatorship is set up that you can review in order to tell if obtaining a conservatorship will be beneficial to your loved one. The decision of whether to request a legal conservatorship is an important one. You should consider it with much thought prior to the time you act to obtain a conservatorship.
Take a look at the below signs that a person needs a conservatorship in California where no power of attorney exists:
Below is an FAQ and a list of signs of need for a conservatorship that we have developed to help you make the decision when there is no power of attorney documents in place:
- Can he or she accurately administer medication to himself or herself? No.
- Can he or she understand the consequence of making a medical decision? No.
- Can he or she provide food or shelter for himself? No.
- Is he or she easily influenced by others to give away his or her money? Yes.
- Are there indications that he or she cannot be safe when left alone at home? Yes.
- Is he or she bathing himself or herself regularly? No.
- Does he or she wear clean clothes or wash his or her clothes? No.
- Are there bills that are unpaid? No.
- Is he or she forgetful of recent events? Yes.
- Are there people who are trying to take financial advantage of him or her? Yes.
If most of your answers match our answers to the above questions then you should consider a California conservatorship for your loved one.
A Typical Ca Conservatorship Story
For example, let us say that dad is the person who needs help or protection and he is living in his own home with mom who is overwhelmed with caring for dad. Sometimes, the story goes like this. A child comes to visit the home and notices that the house is in a disastrous condition. There are unwashed dishes everywhere, dad appears not to have changed his clothing for some time, the trash has not been taken out for weeks, and bills are piled up on the kitchen table but appear not to have been touched for several months. You look in the refrigerator and see that there is little fresh food and the refrigerator smells foul. You ask your mother about what happened and she says, I can’t go shopping because I can’t leave dad alone. He wonders and was lost twice last week. Dad still is trying to drive and has had two accidents in the last year. Dad has a few friends at the near bar and mom tells you that his friends keep asking him for loans and he is freely giving out their money to his bar friends.
Basic Terminology about Conservatorships in California
You need to know the California Conservatorships terminology to navigate the California Court which handles conservatorships in the county where dad lives. We start with the basic words which describe a conservatorship. The definition of a conservatorship is a court method to protect a person who cannot help himself or herself any more. The protected person is called the Conservatee (that is dad in the above example). The protector of dad and the person who will file to ask for a conservatorship is typically going to be either mom or an adult child who will be called a Conservator in Ca.
Should I Get a General Conservatorship or a Temporary Conservatorship?
A general conservatorship is filed for all cases, even if you are also filing a temporary conservatorship. In a Temporary Conservatorship, you are telling the Court that you need an earlier date because there is an emergency and getting the conservatorship powers cannot wait until the general conservatorship hearing. Pre-Covid, the first general conservatorship hearing was set about six weeks after the petition for appointment of a conservator is filed. Post-Covid, the first conservatorship hearing in general cases is set for six months after the petition for conservatorship is filed.
The LPS Mental Health Conservatorship
Historically, California has been against confining mental health patients. The Lanterman-Petris Conservatorship law which went into effect in 1967 put many restrictions on who can file an LPS conservatorship in California. Ca law requires that a mental health conservatorship or an LPS Conservatorship as it is called be initiated by the Public Guardian via a psychiatrist. The LPS Conservatorship in California is typically started for patients who are under a 5150 hold or other similar holds such as a 5250 hold in a psychiatric facility or mental institution. While parents and family members cannot initiate or start an LPS conservatorship, by documenting and journaling the mental health incidents by date and detail, they can add to the evidence needed to conserve the mental health patient. Alcohol or drug treatments, as well as involuntary mental health treatments, are normal parts of the LPS conservatorships.
What are the differences between a Probate Conservatorship and an LPS Mental Health Conservatorship?
In a Probate Conservatorship, your rights to administer involuntary mental health mediations and to confine a person are restricted to those persons who are over 65 with a specific court order. The California option of confining a person under 65 to a restricted placement facility does not exist under a probate conservatorship. In a probate conservatorship, you cannot administer psychiatric medications to a conservatee under the age of 65 without his or her consent. A probate conservatorship typically lasts a life-time and is not terminated annually though the conservatee does have the option of asking for a termination petition. The benefit of a probate conservatorship is that it will not have to be continuously renewed and many families opt for this option due to the difficulty of getting an LPS.
On the other hand, in an LPS Mental Health Conservatorship in California, a request can by made by the County to involuntarily administer psychotropic medication and to involuntarily confine a person to a mental health facility. The extent of severity of the mental health orders are investigated and are only applied to the most severe mental health problems and cases. One important aspect of the LPS conservatorship is that it automatically ends each year, unless a petition is filed to renew that conservatorship.
What Steps Are there To Get a California Conservatorship?
All conservatorships start with filing a set of various conservatorship forms in California in the county court where the disabled person resided, and if you are looking to get a conservatorship, you must learn about these forms. Each county has local forms and state forms that are required to be filed in California Conservatorships.
The Initial Forms For Conservatorship in Ca:
- The Petition for Conservatorship in California has a name called Petition for Appointment of Probate Conservator. This form is filed with every case whether or not you are asking for the appointment of a permanent conservator or a temporary conservator.
- Getting California Local Conservatorship forms: Because each California County has different starting coversheets each time a conservatorship case is filed, you must look on the local court’s website to get this form and to make sure you comply with all the local conservatorship rules.
- Confidential Screening Form: The court requires this form to screen the conservator to see if he or she is appropriate. In this form, there are dozens of questions about the relationship of the conservator to the conservatee to check for suitability and conflicts, and bankruptcies.
- Confidential Conservatorship Supplement Form: In this conservatorship form, the court wants to find out more about what the conservatee can or cannot do for himself or herself. Details about the conservatorship case go here.
- Duties of the Conservator Form: This is one of the most important conservatorship forms in California. Without it being filed in advance, the Court will not issue Letters of Conservatorship to you.
- Where to get a Conservatorship bond in California: We get our conservators bonded with Bond Services of California at BondServices.com. The Court sets the bond which includes wages, social security, and other personal assets, bank and financial accounts plus ten percent. The Cost of the bond is usually a small fraction of the assets.
- What happens after a Conservatorship hearing? After the initial hearing, if the court grants the conservatorship petition, you must prepare and file the conservatorship order and get certified Letters (a court form) issued and schedule all of the deadlines imposed by the Court so you do not make a mistake with the conservatorship. There are many deadlines which you will need to note.
Financial Conservatorship for Estate, Money and Assets
The term for a financial conservatorship in California is called a Conservatorship of the Estate. California has a bond it or block it rule for Conservatorships of the Estate. This means that all the liquid assets have to be bonded or blocked in accounts. There are assets which are difficult to block such as IRA accounts for which the Judge will decide on the manner of bonding or restrictive access with proper order.
Here in the Conservatorship of the estate is where the rights to real property, personal property and businesses are determined, as well as the right to sell the conservatee’s home. Banks who at times may not respect a power of attorney and will tell you that a California conservatorship is necessary when the bank feels like the person is being influenced or may be subject to fraud or financial elder abuse or elder financial abuse as it is called.
When a person starts to mentally deteriorate, it is not uncommon for financially interested friends and family members to show up and try to influence the person. On example is relatives what were not in the picture much and now have started to shower the elder with attention. When such a person becomes a conservator, the conservatorship can become as risky as a power of attorney. Watch for fraud and undue influence in conservatorship as well as with power of attorney documents.
Health Care Conservatorship in California
The term for a health care conservatorship in California is called a Conservatorship of the Person. In a conservatorship of the person the conservator can make housing and healthcare decisions, as well as the right to choose caregivers for the conservatee. Personal rights of the consevatee are addressed in this conservatorship, such as voting, working and other types of personal decisions. There are certain types of health care decisions which the conservator of the person does not have unless the Court gives a specific order for them. The Conservator generally does not have end-of-life powers and must get a conservatorship order for that via a separate petition. End of life powers are defined in California Probate Code Section 4617 (c).
When a Conservator of person is appointed in a California Conservatorship court, the Conservator has the ability to select or fire a health care providers, doctors, nurses, LVNs, health aides, skilled nursing homes, or hospital, and can approve or disapprove tests for diagnosis of disease, surgeries and medications. These rights are identified in California Probate Code Section 4617 (a) and (b) pertaining to conservatorship and health care.
Mina N. Sirkin is a graduate of the University of California whose practice goal is to help elderly and family members who have elder or young adult members who need care. We are the leaders in the Conservatorship industry in Southern California and have spent over 27 years practicing elder law and California Conservatorships. Call us at 818.340-4479 or email us here.
