A conservatorship is “a court proceeding to appoint a manager (Conservator) for the financial affairs and/or the personal care of one who is either physically or mentally unable to handle either one or both (Conservatee).”
1) A conservatorship shifts the responsibility of making financial and personal care decisions from the Conservatee to the conservator; and
2) It imposes significant limitations on the Conservatee’s ability to take actions affecting finances or personal care.
A. Two Types Of Conservatorships:
1) Conservatorship of the Estate: This type of conservatorship is established when the Court determines that a Conservatee is “substantially” unable to manage his or her own financial resources or resist fraud or undue influence; and that he or she lacks the legal capacity to enter into or make any transaction that binds or obligates the conservatorship estate. The conservator of the estate has the authority to manage and control the Conservatee’s estate, pay Conservatee’s debts, collect Conservatee’s debts, and apply the income from the estate for the maintenance, support and education of the Conservatee.
2) Conservatorship of the Person: A conservatorship of the person is established, when the Court determines that a person cannot properly provide for his or her personal needs for physical health, food, clothing, or shelter. The conservator of the person is responsible for the care, custody, and control of the Conservatee. The conservator has the authority to fix the residence of the Conservatee; to consent to medical treatment and to require that the Conservatee receive the appropriate medical treatment (this does not include surgery, which requires the Conservatee’s consent or a Court order specifically authorizing the treatment).
a. Probate Code §2356.5 (a.k.a as Dementia Powers) - Pursuant to this code section, a conservator of the person can obtain the following powers, only after first obtaining Court authorization:
(1) Place Conservatee with dementia in secured facilities for the elderly that are designed to serve people with dementia;
(2) Consent to the administration of psychotropic drugs appropriate for the care and treatment of dementia to a Conservatee.
You do not have to have both a conservatorship of the person and estate, you can have one or the other. However, it is most common to have a conservatorship of the person and estate because if an incapacitated person no longer has the capacity to handle their financial decisions, they probably can no longer make their own medical and personal decisions.
The conservatorships discussed in this blog post are for incapacitated adults, there is a different conservatorship (a limited conservatorship) which is a conservatorship for developmentally disabled adults. This topic will be covered in a future blog post.
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