What Is Conservatorship, How Does It Work? - Werner Law Firm
What Is Conservatorship, How Does It Work? - Werner Law Firm

What Is Conservatorship, How Does It Work?

When an adult is no longer capable of caring for themselves, their loved ones may step in to care for them – to the point of taking full authority over their lives, if circumstances validate it. That is what a conservatorship authorizes.

Conservatorships may be considered in cases where adults are no longer self-sufficient due to mental incapacitation, physical disability, or perhaps an illness that renders them a danger to themselves. Their loved ones seek a way to take responsibility for them and assume partial or full control over their healthcare and financial issues.

Conservatorships are sometimes distinguished from legal guardianship in that they might specialize in assuming responsibility and care of a person’s financial affairs with limited capacity. However, mental health-specific conservatorships (wherein the conservator largely assumes authority over the conservatee’s mental care and treatment) also exist.

Conservatorships Explained

Conservatorships are effectively a form of legal guardianship. A conservatorship exists between a conservator and a conservatee or ward. The scope of the conservator’s authority over the conservatee’s life depends on the context and language of the conservatorship, and agreements are usually tailored specifically to the needs of the conservatee and the capacity of the conservator.

A court can only establish a conservatorship. The requirements for creating a conservatorship may differ from state to state and case to case. Still, it is usually necessary to prove incapacity via a thorough medical and psychological examination.

Conservatorship vs. Power of Attorney

The main differences between a conservatorship and a power of attorney agreement are that a conservatorship is set up after incapacity and that a court petition is not necessary for setting up a power of attorney. A power of attorney agreement is usually between two people – the principal and their agent – created on the basis that both consent to the way the principal’s authority is split or shared.

A power of attorney need not even be written to go into effect during incapacity. Some are explicitly designed to limit or eliminate an agent’s authority when the principal can no longer care for themselves. On the other hand, a conservatorship is an agreement authorized by a court authority on the basis that the ward or conservatee needs a conservator due to illness or other circumstances.

Different Types of Conservatorship

Conservatorships in California include the following:

LPS Conservatorships

LPS conservatorships are named after the Lanterman-Petris-Short Act of 1967 and center around seeking the legal authority to assume control of an adult loved one’s mental healthcare and treatment. This type of conservatorship is critically important in cases where involuntary mental healthcare is necessary to protect the conservatee’s wellbeing and ensure that choices are being made in their best interest.

Under an LPS conservatorship, the patient would not be able to refuse treatment. Without its instatement, they might otherwise meet decisions that would go against their wellbeing because they do not understand or lack the capacity to understand their condition and illness and its consequences without proper care.

Probate Conservatorships

Probate conservatorships are decided by a court, handing over control and responsibility for a ward or conservatee’s financial and healthcare matters to a conservator. Probate conservatorships may also be written to specify that the conservator oversees the conservatee’s estate and financial matters, rather than their healthcare. These conservatorships are necessary when the issue is not a refusal of care or patient adherence but simply that the conservatee cannot take care of their finances due to their condition and circumstances.

Limited Conservatorships

Limited conservatorships may be established in cases where a responsible adult is given broad yet limited powers to protect and act in the interest of a developmentally delayed adult. The scope of a limited conservatorship depends highly on the circumstances of the case. The terms of the conservatorship and the conservatee’s health and status will be reviewed periodically by someone at the county’s court investigator’s office.

How Long Does Conservatorship Last?

Conservatorships may be temporary or permanent, depending on the conservatee’s prognosis and the circumstances surrounding the conservatorship. For example, in the case of a limited conservatorship, the courts will determine every year or every two years whether the conservatorship is still necessary.

A probate conservatorship may be necessary until the conservatee dies in cases of a terminal or progressive illness. In other cases, when the conservatee’s incapacity may be temporary, the conservatorship may only last a few weeks or months. An LPS conservatorship may rely on the outcome of the conservatee’s long-term treatment and how they respond to it.

Individual & Organizational Conservatorships

Conservatorships can either be established between a ward and an individual or between organizations. In individual conservatorships, a single conservator or group of conservators take responsibility for the conservatee’s needs within the guardianship scope.

In organizational conservatorships, one company or group assumes limited control over another under certain circumstances, as instituted by a regulatory body. This is a very different form of conservatorship. It is usually necessary when circumstances call for a different authority to temporarily assume control and steer an organization out of bankruptcy or trouble.

One example is when the Federal Housing Finance Agency temporarily assumed control over Fannie Mae (the Federal National Mortgage Association) and Freddie Mac (the Federal Home Loan Mortgage Corporation) to avoid catastrophic insolvency would have caused to the US financial system.

Setting Up a Conservatorship

The forms necessary to begin setting up a conservatorship in California may be accessed through the California Courts official website. There are different forms for expediting the process in emergency cases and forms for waiving the associated court fees if you or the conservatee cannot afford to pay them. A legal professional can help you file your petition for a conservatorship and make your case.

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