California Conservatorship Explained

When an adult suddenly loses the ability to manage their own affairs because of an accident, illness, or dementia, the practical needs do not stop. Bills still need to be paid, doctors still need decisions, and property may need to be sold to cover the cost of care. Most people assume a spouse or adult child can step in and sign whatever is needed. In California, that is usually not the case. Unless the right documents were created and signed in advance of the debilitating circumstances, no one has the legal authority to act for the impaired person, and the family may be required to go to court for a ruling. Learn more about what a conservatorship.

What is a Conservatorship

A conservatorship is a court case in which a judge appoints someone, called a conservator, to make decisions for an adult who can no longer make rational decisions on their own. Depending on the person’s needs, the court may appoint a conservator of the person to oversee health care and living arrangements, a conservator of the estate to manage money and property, or both.

The process starts when a family member files a petition with the probate court. The person who would be placed under conservatorship and their close relatives must be notified. A court investigator meets with that person, and the court may appoint a lawyer to represent them. A judge then holds a hearing to decide whether a conservatorship is necessary and who should serve.

Why Most Families Want to Avoid It

A conservatorship can take months to put in place. Emergency temporary conservatorships are available, but they require their own paperwork and hearings. In the meantime, bills go unpaid and decisions wait.

The process is also expensive. Families typically pay filing fees, attorney fees, investigator fees, and often the cost of a bond, and these expenses usually come from the incapacitated person’s own savings.

The court’s involvement does not end once a conservator is appointed. A conservator of the estate must file an inventory of assets and regular accountings showing how money was spent. Major decisions, such as selling the person’s home, generally require a judge’s approval. And because the case is filed in court, details about the person’s health and finances are usually then part of the public record.

Being married does not solve the problem. Under California’s community property rules, both spouses generally must sign to sell or borrow against real estate they own together. If one spouse is incapacitated, the other may need a court order to complete the sale.

Two Documents That Prevent It

Most conservatorships can be avoided with two documents that take little time to prepare.

The first is a durable Power of Attorney for finances. This document names a person, called your agent, to manage your financial affairs: paying bills, handling bank accounts, filing taxes, and dealing with real estate. The word “durable” means the document stays in effect if you become incapacitated, which is exactly when your family will need it. In California, the Power of Attorney document must be signed before a notary or two qualified witnesses. If your agent signs a deed, have the document notarized so it can be recorded.

Some people choose a “springing” Power of Attorney, which takes effect only after a doctor confirms incapacity. That added step can cause delays at the moment your agent needs to act, so discuss the tradeoff with your attorney.

The second is an advance health care directive. This document names someone to make medical decisions for you if you are unable, and it lets you state your wishes about life support, pain relief, and organ donation. This too must be signed before a notary or two qualified witnesses, with an additional witness required for residents of skilled nursing facilities. Many people sign a HIPAA authorization at the same time so doctors can speak freely with family members.

An advance directive is different from a Physician Orders for Life-Sustaining Treatment (POLST). A POLST is a medical order your doctor signs when you are seriously ill, and it tells emergency personnel what treatment you want. Nearly every adult should have an advance directive. A POLST is only for people facing serious illness.

Choosing The Right People

These documents only work as well as the people you name. A good agent is someone you trust completely, who uses sound judgment, and who is organized enough to keep careful records. It also helps to choose someone who lives nearby or can travel easily. Always name at least one alternate in case your first choice is unable to serve.

Conservatorship

You can choose different people for financial and medical decisions. Naming two agents who must act together can lead to deadlock, so many people name one agent and one backup instead. If no family member is a good fit, California licenses professional fiduciaries who can serve in this role.

Keep Your Documents Current

Review your documents after a marriage, divorce, move, death in the family, or change in health. Make sure your agents know where the originals are and have copies. Banks sometimes hesitate to accept older documents, so keeping them current can prevent delays. If you also have a living trust, coordinate it with your power of attorney: your successor trustee manages the assets in the trust, and your agent manages everything else.

Plan While You Can

These documents must be signed while you are still able to understand and make decisions. Once a crisis happens, it is often too late. RJS LAW helps San Diego individuals and families prepare durable powers of attorney, advance health care directives, and complete estate plans. For a no-cost consultation, please call RJS LAW at 619-595-1655 or visit us on the web at RJS LAW and learn more about what is a conservatorship is.