Transcript Probate Conservatorships: What Do They Do?

Probate Conservatorships:
What do they do?
• By Aileen Kroll, JD
• Patients’ Rights Advocate
• In Santa Barbara
• Founder of Long Term
Care Planning & Resource
Center
•
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What does it mean to be
“conserved?”
Same word means very
different things:
Probate Conservatorship
vs.
LPS Conservatorship
vs.
Limited Conservatorship
vs.
Temporary/Permanent
Conservatorship
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How Initiated
LPS
By professional
person in charge of
facility or his/her
designee
Probate
Anyone may petition
(Probate § 1801(a))
(W&I § 5352)
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Statutory Requirements
LPS
Probate
Requires mental
disorder
Unable to provide for
personal needs or
manage financial
resources
(W&I § 5350)
(Probate § 1801(a)
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LPS Conservatorships
• In a nutshell, LPS conservatorships may be
set up to arrange placement and mental
health treatment for people who are unable
to provide for their food, clothing, shelter
as a result of a mental disorder or chronic
alcoholism.
• An LPS conservatorship is used only when
the person needs mental health treatment
but can’t or won’t accept it voluntarily.
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Limited Conservatorships
• Limited conservatorships may be set up for adults with
developmental disabilities who cannot fully care for
themselves or their property.
• Developmental disabilities include mental retardation (or
conditions similar to mental retardation or conditions
requiring similar treatment), epilepsy, cerebral palsy or
autism that began before the age of 18.
• A limited conservatorship attempts to encourage further
development, wherever possible.
• A limited conservator’s duty is to help the limited
conservatee develop maximum self-reliance and
independence.
• Refer to Regional Center
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Burden of Proof
LPS
Requires Grave
Disability Beyond a
Reasonable Doubt
Probate
Clear and Convincing
Evidence
Probate § 1801(c)
(Conservatorship of Roulet
(1979)23 Ced 219, 152 CR
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Right to a Hearing
LPS
Probate
Right to Court/Jury
Trial on Issue of
Grave Disability
Right to Jury Trial on
Issue of need for
Conservatorship
Judicial decision on
specific capacities
(W&I 5350(b)(1))
(Prob Code § 1827)
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Who May Be Conservator
LPS
Not subject to list of
priorities
(W&I § 5350(b)(1)
Probate
Subject to list of
priorities: spouse,
adult child, parent
(Prob § 1812)
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Placement
LPS
Placement in locked
facility possible least restrictive
placement
(W&I § 5358(a)(c)
Probate
No such right
Persons with
Dementia may be
placed in a locked
facility for the
elderly
(Prob § 2356.5)
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Duration
LPS
Probate
1 year
Must be renewed
annually
Indefinite
(Prob § 1860)
(W&I § 5361)
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Concurrent existence of
Conservatorship of Person and
Estate
If Probate
Conservatorship of
Estate exists cannot have
concurrent LPS
Conservatorship of
Estate
If Probate
Conservatorship of
Person exists - LPS
runs concurrently, but
is superior to Probate
Conservatorship of
Person
(W&I § 5350)
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Case Study
• Which type of
conservatorship, if
any, would best
serve this woman?
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The Nitty-Gritties of Probate
Conservatorship
What is a Conservator?
A person or organization chosen to protect and
manage the personal care or finances of
someone who has been found by a Probate Court
judge to be unable to do so.
Who Can Serve as a Conservator?
A family member;
A friend;
A Private Professional Conservator;
A County Agency called the Public Guardian’s
office
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Case Study
• Who Should Be the
Conservator?
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Who Becomes a Probate
Conservatee?
• Many are elderly. Others are younger
people with temporary or permanent
physical or mental disabilities.
• Typicially, a conservatee is a person who
can no longer shop, cook, clean, dress or
access medical care and/or can’t keep
track of their money or remember to pay
their bills and/or subject to exploitation.
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Two Types of Probate
Appointment
• Conservator of the
Person
•
vs.
• Conservator of the
Estate
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Conservator of the Person
• Appointed when someone needs help taking
care of their daily needs.
• Arranges for the conservatee’s care and
protection.
• Decides where the conservatee will live.
• Makes arrangements for the conservatee’s
health care, meals, clothing, personal care,
housekeeping, transportation, recreation.
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Case Study
• Does this person
need a Conservator
of the Person?
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Conservator of the Estate
• Manages the conservatee’s finances
• Locates and takes control of the
conservatee’s assets
• Collects income due to the conservatee
• Makes a budget to show what the
conservatee can afford
• Pays the conservatee’s bills
• Protects the conservatee’s assets
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Case Study
• Does this person
need a Conservator
of the Estate,
Person or both?
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Temporary Conservatorship
• Both forms of permanent
conservatorship require notice and a
hearing.
What if someone needs immediate
help?
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The “How-To’s” of Temporary
Conservatorship
• A judge may appoint a temporary
conservator of the person or estate.
• A temporary conservator arranges for
temporary care, protection and support of
the conservatee and protects property
from loss or damage.
• Conservatee may not be moved without a
court order.
• The Letter of Temporary Conservatorship
will show an exact ending date.
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Case Study
• Does this person
need a temporary
conservator?
• What will be
accomplished?
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Permanent Conservatorship
Process
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Who initiates it?
Family
Friends
Neighbors
APS
Hospitals
Anyone!
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What are the signs that a
Probate Conservatorship may
be needed?
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Self-neglect
Neglect by Caregivers
Abuse
Exploitation
Dementia/Head Injury but not Mental
Illness!
• Have less restrictive approaches been
exhausted?
• Is the behavior a way of life?
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The Conservatorship Process
• The packet
• The MD
• Who is seeking to be the conservator?
Is it contested?
• Is the conservatorship voluntary or
involuntary?
• Attorney?
• Role of Court Investigator
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So, you’ve been appointed
Conservator . . .
• Obtain Letters of Conservatorship
(court certified)
• Obtain a bond if you’ve been
appointed Conservator of the Estate
(sometimes waived)
• Provide accounting to the Court (if
Conservator of the Estate)
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Rights Retained by All
Conservatees
• Right to be treated with respect
• Right to have wishes considered
• Right to ask questions and express
concerns re conservatorship
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Rights Usually Retained by
Conservatees
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The right to:
Marry
Make or change a will
Receive personal mail
Be represented by a lawyer
Ask a judge to change conservators
Ask a judge to end the conservatorship
Vote
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Changing Conservators or
Ending the Conservatorship
• The responsibilities of a conservator ends
when:
• A judge determines that the conservatee
no longer needs to be conserved;
• The conservator’s appointment is
withdrawn by a judge (or the conservator
resigns or dies) and someone else is
appointed;
• The conservatee dies
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Problems/Issues/Concerns re
Conservator
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Abuse by Conservator
Neglect by Conservator
Exploitation by Conservator
Wrong Conservator?
Out-of-State appointment
Attorney
Personality issues
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Problems/Issues/Concerns for
Conservatee
• “What do you mean I’m conserved?”
• “I don’t want to live here”
• “I don’t want medical care”
• “Who are you to tell me what I can and
cannot do?”
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In Conclusion . . .
• Probate Conservatorship, when in capable,
caring, knowledgeable hands, can greatly
improve the lives of persons no longer able
to manage their daily affairs.
. It DOES NOT take the place of an LPS
Conservatorship, which often leads to
great frustration for family members
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