Tag: Laws

What is a Conservatorship? Mina Sirkin, Los Angeles Conservatorship attorney defines a conservatorship as follows: conservatorships are legally binding arrangements via a court order, where an adult is given the responsibility or duty to care for another adult.   The Conservatorship attorneys and lawyers at Sirkin Law Group, have helped establish Conservatorships for over 26 years, and can assist you with the conservatorship process in Los Angeles County. Conservatorships Offices in Los Angeles Glendale, Woodland Hills, Pasadena.  

WHO USUALLY FILES CONSERVATORSHIPS?

1.  Children with aging or disabled parents file them to care for their parents.

2.  A spouse who has a disabled spouse.

3.  Parents of special needs children file them when the child turns 18 or is over 18 years of age to be able to make decisions for their special needs child.

4.  A domestic partner whose partner has become disabled or incapacitated.

5.  Sometimes, when there is no family member or suitable individual, private professional fiduciaries file for conservatorship.

Groups of Conservatorships:  Probate Conservatorships and LPS Conservatorships for mental health

Probate Conservatorship Types in California:

Conservatorships are created in the Los Angeles County probate court and have three basic types:

1) Conservatorship of the person;

2) Conservatorship of the Estate; and

3) Conservatorship of person and estate. 

Conservatorships Los Angeles

GENERAL CATEGORIES OF CONSERVATORSHIPS IN CALIFORNIA

1.  Probate Conservatorship.

2.  Developmentally Disabled Conservatorship (called a Limited Conservatorship)

3.  LPS Conservatorship (Mental Health).  LPS conservatorships can only be initiated by the Pubic Guardian or the Hospital.

LEARN ABOUT ALTERNATIVES TO CONSERVATORSHIPS IN CALIFORNIA: 

1.   Getting a Professional Fiduciary.
2.   Getting informal help from family.
3.   Making a trusted person an agent in a power of attorney.
4.   Naming an “attorney in fact” or agent in a power of attorney on a specific account.
5.   Specifically making a spouse, or another person a representative payee of your social security.
6.   having an advance health care directive.
7.   When signing a power of attorney, limiting it so that the agent cannot gift to himself/herself.
8.   Estate planning and creating a revocable living trust.
9.   Creating an irrevocable trust for asset protection purposes, to prevent yourself from giving away your assets, if you become influenced by another person, later in your life.
10. An estate management contract.

Talk to us about your Los Angeles Conservatorship.

DO YOU HAVE THE RIGHT TO FILE FOR A CONSERVATORSHIP?

Generally, spouses, parents, children, relatives, friends, the public guardian, and professional fiduciaries can file for conservatorship.   Spouses are given priority over others.  A parent can file for conservatorship of a child.  The most common type of conservatorship filed by a parent is a Limited Conservatorship.  A child may file to conserve his or her parent.

If there are several persons who have filed, the case then is litigated and may include competing petitions for conservatorship requesting that each petitioner becomes the conservator.  The court will will hold a hearing and decide who shall become the conservator.  This type of hearing can be short or a full trial.  Preference rules exist in California for making such a determination as to who has priority in appointments. Contested Conservatorship proceedings can take long and may result in trials.

WHO IS UNABLE TO BE A CONSERVATOR?

Generally, creditors of the disabled person cannot become the conservator of the estate of the conservatee.   Also, if a spouse is involved in a divorce proceeding, the spouse does not get priority and the court looks to see if it is even in the best interest of the conservatee to appoint the spouse.  Also, if the Court orders a bond and the petitioner is not bondable, and the nature of the assets do not allow for a blocked account, then petitioner cannot become the conservator.  

In situations like the above, a private professional fiduciary is most often suitable as a conservator.

HOW LONG DOES THE CONSERVATORSHIP LAST?

A conservatorship is life long process, must continue until the court orders the conservator relieved from his or her duties. This can happen if the conservatee dies, if the estate is used up, if the conservatee regains his or her capacity, or if the conservator becomes unable or unwilling to act.

In the last situation, the court will assign a successor conservator.     If the Conservator dies, the Conservator of the estate still remains until he/she finishes his/her accounting.   Read more about Conservatorship Accountings here.

Conservatorships are time consuming and expensive and should be avoided with proper estate planning when there is still capacity.  Talk to an experienced conservatorships attorney in Los Angeles.  They should only be used when absolutely necessary.

Candidates for conservatorships are usually disabled or elderly.  Some conservatees may have Alzheimer’s disease, dementia, Parkinson’s, Huntington’s disease, autism, or other diseases.  Before 1980, many conservatees simply had the diagnosis of mental retardation.  Once a Conservators is appointed, the Conservator can ask the Court for permission to do estate planning for an incompetent person including substituted judgment petitions to protect the assets from Medi-Cal, and to purchase or sell property of the Conservatee.

HOW DOES THE COURT PROTECT THE ELDERLY AND DISABLED WITH A CONSERVATORSHIP?

Are actions of the Conservator monitored by anyone? Conservatorship proceedings and actions of conservators are court supervised.   The Court requires that each Conservator of the estate post a Conservatorship bond for certain assets.  The bond is an indemnity contract that protects the conservatorship estate from bad acts of the conservator which may be surcharged.

What is no one tells you about the Conservatorship? Family members are given notice of the proceeding and financial records of the conservatee are summarized in an accounting filed with the court.   If the conservatee’s residence is to be changed, parties will receive notice.

Who determines if someone meets all of the medical requirements of a conservatorship?  When a Conservatee needs psychiatric (called psychotropic medications) medications, the Court reviews a doctor’s declaration regarding the need for the medication and makes the appropriate medication orders.    The ability of the Conservator to administer dementia medication depends on the court’s approval of administering such medication.   

Can I sell my parent’s home, if I am the conservator? When a Conservator wants to sell real property or purchase real property, the court must give permission for such a transaction, especially when it involves moving the Conservatee from his or her home.  Conservators must obtain an order to confirm the sale of real property from the court.

What is a PVP attorney and why does the conservatee need one? A PVP attorney (court appointed attorney) is sometimes appointed for the Conservatee.  The role of this type of attorney is to advocate the wishes of the proposed conservatee when there is litigation, or when rights of the Conservatee are affected.

California Conservatorship Process:

The first step in conservatorship usually start when a person is so incapacitated that he or she cannot manage his/her own affairs.  Actually before you file, we recommend that you get a Capacity Declaration completed by a medical doctor or psychologist.  This way, you do not waste any money, if the proposed conservatee has capacity, or is competent enough to take advantage of the alternatives to a conservatorship in California.

The person who is the lega caretaker appointed by the court is called the conservator, and the person who is being legally taken care of is called the conservatee. Caregivers and Conservators can be different people.  A conservator can hire caregivers and does not have to do caregiving.

The conservatorship proceeding begins with a petition filed with the court, followed by an investigation by a court investigator and a Conservatorship court hearing. Many factors can affect a conservatorship.  For example, if the conservatee objects to the conservator’s appointment, he or she may object and the court will assign counsel for the conservatee for that purpose.

A conservator of the estate is required to provide accountings that give details of the conservatee’s assets, income and expenses, showing exactly how the conservatee’s money was spent. Additionally, the court will require that the conservator of the estate to post a bond. The conservator is paid by the conservatee’s estate and the court supervises the reasonableness of the payments to the conservator.

ARE POWER OF ATTORNEY DOCUMENTS EFFECTIVE ALTERNATIVES TO CONSERVATORSHIPS AND ARE THEY APPROPRIATE OR AVAILABLE?

A power of attorney gives the option to the agent to act or not.  A conservatorship obligates the conservator to act.  That is one of the differences between a conservatorship and a power of attorney.

Another difference between a power of attorney and a conservatorship is as follows: While a valid power of attorney document can authorize the power of attorney holder to accomplish certain tasks of a conservator, a power of attorney cannot prevent the ill person from contracting, conveying property or marrying.  For example, a patient with Alzheimer’s disease may become subject to fraud or undue influence by unscrupulous persons.  

While he or she could have given a valid power of attorney while he or she was well, he or she may be befriended, may marry, and convey his or her property to a new spouse. In that situation, the probate code provides that a conservatorship may be established, and the conservator may ask the court to set aside any contract entered into by the ill conservatee.  Second and third marriages are common in California.  The right to marry is one that the Conservatee retains unless the court terminates it with an order.

The advantage of the conservatorship is that it can safeguard against fraud or undue influence by a third party against the ill person.   Conservatorships can get costly when there is litigation involved.  Persons filing for conservatorship should consider the costs before filing.

What are are disputed conservatorships, a Contested Conservatorship or Conservatorship Litigation and how to handle them?

Families often have conservatorship disputes in Los Angeles. A disputed conservatorship case normally get an evidentiary hearing where the judge can take evidence to determine if a) a conservatorship is needed, and b) if the person proposed to be the conservator is suitable. Contested Conservatorship (competing petition) and conservatorship litigation can involve any of the following situations:

1. You must file a conservatorship objection on time.  Delays work to your disadvantage. Objections to the initial appointment of a particular person as a conservator.   Filing any objection to a conservatorship.  If you object to someone becoming a conservator, you must call an experienced conservatorship lawyer to help you.  Call 818.340.4479.
2. Removal of a Conservator for cause.
3. Actions requesting appointment of a successor conservator to which others object.
4. Disputes involving contested conservatorship accountings.  These include formal objections to accounting by the conservator.
5. Determination of a undue influence on an elderly or disabled person.    Elder abuse actions can be brought in conservatorship cases.
6. Objections to Proposed Actions by Conservator including substituted judgment actions and trusts.
7. Family mediations in determining the best conservator.
8. Requests to terminate a conservatorship or modify powers in a conservatorship.
9. Determination of rights to assets and disputes relating to ownership and title.
10. Conservatorship trials.

Many times, appointment of a professional fiduciary or professional conservator in Los Angeles, can curtail the expense of a litigated conservatorship.   If you need a referral to a professional fiduciary or would like an introduction to professional conservators, please call us. Probate Conservatorships can be complex.  Call us for individual conservatorship advice.  Call us at 818-340-4479 for more information on conservatorship and contested conservatorship and conservatorship litigation matters.  Los Angeles County Ca Los Angeles Conservatorship Attorney.   Each attorney and lawyer in our law office is experienced in Los Angeles Conservatorships: Service area County of Los Angeles, Los Angeles West Los Angeles, Hollywood, Hollywood Hills, Woodland Hills Conservatorships.  If you need help with conservatorships, we serve all areas near the City of Los Angeles and in Los Angeles County.