When an individual either through birth, illness, accident, etc. has been incapacitated to the point that they can no longer make pertinent life decisions a court may appoint them a Guardian or Conservator. Both of these positions grant powers to the Guardian or Conservator to make necessary financial or healthcare-related decisions on behalf of the incapacitated individual.
The term “incapacitated” is a legal term of art used in specific scenarios where the court deems a person unable to make decisions regarding their health and/or finances for themselves. When someone who, due to an illness or disability is unable to make decisions about his healthcare, living situation or other non-monetary personal matters, the court may appoint them a Guardian. The incapacitated individual is now deemed a “ward” of the Guardian. An example of when a Guardian is appointed in lieu of a Conservator would be, a woman suffers an accident which renders her unable to speak or move. If the woman had no ascertainable assets or income she likely only needs a Guardian to oversee minor financial decisions such as social security, VA benefits; while in the meantime she needs the Guardian to take full responsibility of her healthcare due to her incapacitation.
In contrast, the court may appoint a Conservator to an incapacitated person if they have no discernable ability to control their own finances but can make decisions regarding their health. For example, an individual who, due to an accident or mental illness, can live a semi-autonomous life but has lost or never had the ability to even basic mathematical functions may need a Conservator. In that scenario, the Conservator would handle all the finances for the individual while taking no control over healthcare decisions. Both “Guardian” and “Conservator” are terms which are used with some interchangeability amongst the states.
Routinely courts appoint both a Conservator and Guardian for a single incapacitated individual because they are incapable of taking care of both their financial and healthcare needs. This may either result in one person taking on both positions, or two separate individuals each taking on one position. Courts often attempt to appoint the closest family member, such as spouse, partner, parent or adult child. If none of these persons exist, are unavailable, or unsuitable for the task the court will appoint an extended family member or close friend. If no one can take on the task the court will appoint a neutral attorney, trained on these matters, to assist.
In the state of California, the term Guardian is used exclusively for children, while the term for guardianship over an incapacitated adult is Conservator. California distinguishes between a Conservatorship of the Person and Conservatorship of the Estate. A Conservator of the Person controls and manages the personal affairs and healthcare of the disabled individual—similar to the general definition of Guardian. In contrast, a Conservator of the Estate controls and manages the individual’s financial needs including income and bills—similar to the general definition of Conservator. Petitions for Conservatorship must be made with the Probate Division of the Superior Court of California where the disabled adult, or “conservatee,” resides.
In California, the court splits Conservatorship between General/Full and Limited. A General Conservatorship means the probate court grants the Conservator full powers over them to manage the finances and/or personal affairs of the conservatee. In comparison, for conservatees who retain some independent function, a court will likely only establish a Limited Conservatorship. When limited, the Conservator’s scope of authority is only to those powers specifically granted by the court, usually only those tasks which the conservatee cannot complete on their own.
Upon filing a petition for Conservatorship, the Superior Court will set a hearing date and serve notice to the proposed conservatee. The judge will likely appoint an attorney to act as a neutral representative acting in the best interests of the proposed conservatee at and prior to the hearing. At the hearing, the presiding Judge will ascertain whether all necessary parties were notified and then hear facts as to why the proposed Conservator should be granted guardianship over the disabled person. Further, the Judge will likely ask questions concerning the proposed Conservator’s abilities to take on such a task. If a notified party objects to the Conservatorship, the Judge may hear evidence supporting the objection and response from the petitioner. Should the Judge grant Conservatorship, the Conservator retains that position until the conservatee dies; is deemed no longer in need of assistance; in the case of a financial conservatorship, the assets are used up; or the Conservator resigns or can no longer handle the responsibilities of the position.
If you are seeking assistance in being appointed a Conservator of an incapacitated individual in California, seek the assistance of one of our California attorneys in this field to ensure your loved one’s best interests are protected.