Since my practice primarily involves disputes, I am often asked to assist clients with the issues that arise when one of their loved ones becomes incapacitated and can no longer make financial or health care decisions for himself or herself.  In a perfect world, the loved one has a foundational estate plan that includes a durable financial power of attorney and an advance health care directive that name an agent (also called an attorney-in-fact) who can step in and make financial and health care decisions when the loved one is no longer able to make those decisions for himself or herself.  In these “perfect world” scenarios, once a determination of incapacity is made, it is relatively easy for the agent to step in and begin managing his or her loved one’s financial affairs and medical decisions and needs.  But what happens if the loved one does not have a foundational estate plan, or if he or she is in need of more protection than a durable financial power of attorney or advance health care directive can provide?  In those difficult situations, court intervention is often required.

If your loved one becomes incapacitated and does not have a durable financial power of attorney (and “durable” is the key word here:  a financial power of attorney is only “durable” if it specifically states that it remains in effect even in the event of incapacity), it may be necessary for you to seek the appointment of a conservator so that there is a person who has the authority to manage your loved one’s financial affairs.  This is also true if your loved one does not have an advance health care directive or durable power of attorney for health care that appoints an agent to make health care decisions for him or her in the event of his or her incapacity:  in that event, it may be necessary for you to seek the appointment of a conservator so that there is a person with authority to make health care decisions for your loved one.

So what is a conservator?  Generally speaking, a conservator is a person who is appointed by the court to make sure that the well-being of the incapacitated or dependent person (called a conservatee) is taken care of.  The relationship of conservator and conservatee is a fiduciary relationship, meaning that a conservator must act prudently and in good faith and act only in the best interests of the conservatee.  There are two types of conservator:  a conservator of the person and a conservator of the estate.  A conservator of the person has the “care, custody and control of, and has charge of the education of” the conservatee.  (Probate Code section 2351(a).)  In other words, a conservator of the person is responsible for making sure that the day-to-day personal needs of the conservatee are met, i.e., food, housing, medical care, and personal care.

A conservator of the estate, on the other hand, has the “management and control of the estate” (meaning all of the conservatee’s personal property, including money, and real property) of the conservatee.  (Probate Code section 2401(a).)  The conservator of the estate, therefore, is responsible for managing the conservatee’s money or other financial resources, which could include paying the conservatee’s bills, managing the conservatee’s investments, and maintaining the conservatee’s real property.  Keep in mind, however, that if the conservatee has a trust and has funded his or her assets into the trust, there may be no need for a conservator of the estate, as the trustee of the trust would have the management and control of the assets that are in the trust.  In that instance, a conservator of the estate would likely only be necessary if the conservatee has assets that have not been funded into the trust.

Depending on the circumstances, it is possible that a conservator of the person may be necessary but not a conservator of the estate, and it is also possible that a conservator of the estate may be necessary, but not a conservator of the person.  If both a conservator of the person and a conservator of the estate are needed, sometimes the same person is selected and appointed by the court to be conservator of the person and conservator of the estate, but this is not required and is not always the case.   

A conservatorship can sometimes also be necessary even if your loved one has a durable power of attorney for finances and/or an advance health care directive.  Sometimes, especially with elderly individuals, an unscrupulous person (often a “new best friend” or a care provider) becomes involved in the elderly person’s life and begins to unduly influence him or her to make decisions that are not in his or her best interest.  The unscrupulous person may also try to take, or actually take, financial advantage of the elderly person to the point that it is necessary for a loved one to step in and take action to protect the elderly person from further financial exploitation or harm.  Often, the elderly person does not want to admit that he or she is in need of assistance or protection, and sometimes feels like he or she is “in love” with the person that is taking advantage of him or her.  As a result, the elderly person is not willing to accept the assistance of the agent(s) that he or she has designated under his or her durable power of attorney for finances, and is not willing to “give up” control of his or her finances, even if it means potentially losing everything if he or she does not.  These are difficult situations where the appointment of a conservator may be the only option to protect the elderly person from financial abuse or loss of his or her financial assets.

Hopefully, your loved one (and you!) has a foundational estate plan in place that includes a durable financial power of attorney and an advance health care directive, so that if your loved one (or you) becomes incapacitated, there is a trusted agent in place who can step in and make financial and/or health care decisions for your loved one if he or she becomes unable to make those decisions for himself or herself.

If, however, a conservatorship is necessary either because your loved one is at risk of being financially exploited, or because he or she becomes incapacitated and does not have foundational estate planning documents in place so that an agent or trustee can take over when your loved one is no longer able to make his or her own financial or healthcare decisions, it is important that you work with a competent attorney who is qualified and experienced in conservatorship proceedings.  Conservatorship proceedings are court actions that are highly technical (and involve nuances and intricacies that are beyond the scope of this post), involve on-going court supervision, restrict many of the rights of the conservatee (including the right to vote in certain circumstances), and can be very costly.  Under the right circumstances, however, a conservatorship can be a very effective tool to protect an incapacitated adult from elder or dependent adult abuse or neglect, and to insure that his or her personal needs are taken care of adequately.  

For more information on foundational estate plans, including durable financial powers of attorney and advance health care directives, see Estate Planning 101:  Getting Started.