A conservator is appointed by a court to care for an adult who is mentally or physically disabled and incapable of caring fully for themselves, or a minor in need of an adult to manage finances and properties under their name. Conservators have a fiduciary duty to their conservatees, and the exact limits of their powers are defined by the terms of the conservatorship as ordered by the court.
In general, conservators act in the conservatee’s interest to manage either financial or healthcare decisions or both. However, they may also be limited to a more specific or short-term role (depending on the context of the conservatee’s incapacity) or may be directed to take charge of the conservatee’s social life and other in-depth aspects of care.
In some cases, conservatorships are specifically designed to manage an incapacitated individual’s estate planning. Conservatorships are often instated in cases of advanced dementia, wherein the incapacitated individual needs the help of another adult to handle their living situation, financial matters, healthcare questions, and personal care.
Conservator vs. Guardian
The terms conservator and guardian are used interchangeably. Some states draw a specific line between the two terms, while others use one over the other or both. A guardian and conservator’s roles have significant overlap in any case, where a court typically tasks both with taking responsibility for someone who cannot be fully responsible for themselves. The specific legal terminology and definitions of any given case will depend on the state in which it takes place.
A common difference is that guardianship usually applies to minors, whereas conservatorship applies to incapacitated adults, as is the case in California. Another difference may be that conservators are defined by their fiduciary duty to care for someone else’s finances (also known as a conservator of the estate). At the same time, guardians are tasked with managing their personal lives and living arrangements (alternatively known as a person’s conservator).
Types of Conservatorships
Conservatorships can be written to provide comprehensive legal authority to care for someone or act in a more limited capacity. For example, in cases where a young celebrity reaches the age of majority to access their wealth freely, a court may appoint a conservator to help ensure that personal expenses, bills, and taxes are first taken care of first (as is the case in some highly publicized celebrity conservatorships).
In general, conservatorships in California can be distinguished between probate conservatorship and Lanterman-Petris-Short (LPS) Conservatorship. The main difference between the two is the legal basis for which they are named. Probate conservatorships utilize the California Probate Code as their basis, whereas LPS conservatorships utilize the 1969 Lanterman-Petris-Short Act.
Probate conservatorship is the most common type and can further be broken down into three categories:
1. General Conservatorship
General conservatorships may be differentiated by the circumstances under which they are created. Still, all share the same basic definition: comprehensive court-appointed legal authority to care for an incapacitated or incompetent adult, often with a focus on finances, as well as other forms of care and responsibility.
2. Limited Conservatorship
Limited conservatorships are usually set up for persons with developmental disabilities. In these cases, the limited conservator’s role is not to take total responsibility but to help further development and guide the conservatee’s personal growth and actions.
The idea behind a limited conservatorship is to act with interest in the conservatee’s eventual independence. Arrangements focus on providing training and education and taking care of essential needs and opportunities for work, social engagement, and recreation.
3. Temporary Conservatorship
Temporary conservatorships do not refer to the nature of the conservatee’s incapacity but are rather a transient appointment before a general or limited conservator can be appointed. A temporary conservator is assigned by a court when, for example, the previous general conservator died or became incapacitated.
Lanterman-Petris-Short (LPS) Conservatorship
LPS conservatorships are petitioned by a public entity rather than a private citizen or relative. These conservatorships are leveraged to provide care for someone suffering from extreme disabilities because of chronic physical or mental illness, to the degree that their diagnosis has left them incapable of providing for their own basic needs, including food, shelter, and clothing.
They are often used when the conservatee refuses help or unwilling/involuntarily agrees to enter treatment. Through an LPS conservatorship, living is arranged at a specialized inpatient/residential facility for the conservatee. Again, LPS conservatorships are not initiated by relatives or private individuals but rather by the local government or another public entity, such as a public guardian.
Conservatorship and Estate Planning
As a result of being responsible for their conservatee’s finances, conservators of an estate are also indirectly responsible for their conservatee’s estate at death. Conservators cannot write wills in the name of their conservatee but can:
- Minimize and pay expenses.
- Manage, control, and invest their assets.
- And handle all associated income taxes and other tax obligations until the conservatee’s death (or until they retire their position as a conservator).
A critical responsibility in such cases is accounting. The conservator provides a detailed overview of their conservatee’s income and finances under their care within the first year of being appointed. Then again, every two years, until the end of the conservatorship. Being meticulous and carefully keeping track of all financial paperwork over the years is an important part of being a conservator.
Why Work With a Legal Professional?
A conservator’s duties to the person and/or their estate can be complex, and even simple missteps can act as immense liabilities. The conservator’s role is an important one for many adults who cannot manage their personal or financial responsibilities.
Still, even conservators may need help determining their exact duties and what is required of them. If you have been appointed as someone’s conservator or are seeking an appointment, be sure to get professional legal help to understand better what your responsibilities and powers are under local law.