When an elder (or “dependent adult”) is mentally or physically unable to take care of his or her needs, then it may be appropriate to establish a conservatorship.
In California, an elder law attorney accomplishes this by preparing, and filing with the court, the petition for conservatorship, along with the other required documentation. The person in need is called the “conservatee”, and the person who will obtain the court’s authority is called the “conservator”.
Generally, there are two kinds of conservatorship: (1) over the person (when an elder cannot take care of their personal needs, such as food, clothing and shelter); and (2) over the “estate” (when an elder cannot make sound financial decisions or resist fraud or undue influence.
The lawyer and client should always first determine whether any alternatives exist so the same goals can be obtained, but without the need for a formal conservatorship.
What alternatives? Trusts and powers of attorney are two such options.
If the elder had previously established a revocable trust, then the trust would name a “successor trustee” — that is, someone who would have the authority to manage the assets owned by the trust when the elder no longer possessed the ability to do so. Similarly, if powers of attorney for finances and health care decision making are in place, then the elder’s “agent” would have the authority to handle those responsibilities. Under this scenario, there would be no need to seek a conservatorship because the authority needed already exists. There would be no reason to ask the court to intervene.
Sometimes, even though a trust and powers of attorney exist, there may still be a need to establish a conservatorship. The named “successor trustee” of the trust, or the named “agent” under the power of attorney for finances, may be using their authority to steal money from the elder. This needs to be stopped and, in addition to establishing a conservatorship, an “elder abuse civil litigation” case might be warranted to recover real properties or money wrongfully taken.
Once a conservatorship is established, the court monitors the conservator’s actions. The conservator must file periodic accountings with the court, informing the judge of every penny that the conservatee received, and every penny that was spent. The conservator will petition the court to be awarded reasonable fees for his or her work on the case, and to be reimbursed for out of pocket costs, sometimes including attorney fees, that were paid for the benefit of the conservatee.
The bulk of the work to establish a conservatorship mostly occurs at the beginning of the case, and then simmers down as the mechanics are set in place (payment of the conservatee’s bills, medical care, residency issues, etc.).
Again, alternatives to a conservator should first be considered, but when warranted, it provides the elder with the assistance needed to ensure that they retain as much dignity and independence as possible.