Conservatorship & Guardianships
Our attorneys can help establish or object to a conservatorship throughout Los Angeles, Marin, Orange, San Francisco, and Ventura Counties.
At its basic level a conservatorship is a protective court proceeding in which a judge appoints a responsible person (a "conservator") to care for another adult who cannot care for themselves or their finances (a "conservatee"). The difficulties presented by the incapacity of a loved one are significant and the attorneys at Ginzburg & Bronshteyn, LLP the attorneys realize the emotional toll the process can take on all involved. Under Probate Code Section 810 all persons are rebuttably presumed to have the capacity to make their own decisions and be responsible for their actions. We assist families throughout Los Angeles, Southern California Counties, and Bay Area confronted with the permanent or temporary incapacity of a loved one by establishing and administering conservatorships.
It is important to look at a persons orientation to time, ability to concentrate, short and long term memory, ability to communicate, recognition of familiar objects and persons, ability to plan and reason logically, delusions, ability to modulate mood when determining the need for a conservatorship.
The starting point for any mental capacity determination is Due Process in Competence Determinations Act found in Probate Code sections 810 to 813, 1801, 1881, 3201, and 3204 (the Act). In 1995, the Legislature created the Act to clarify the legal capacity of a person who has a mental or physical disorder.
In the event a person becomes unable to manage their own care or their finances, and does not have certain estate planning documents in place, a conservatorship proceeding may be necessary. A person may become incapacitated for many reasons, illness or disease such as Alzheimers or an accident.
In appropriate circumstances, the court may appoint a conservator of the person, a conservator of the estate, or a conservator of both the person and estate of an adult [Prob. Code § 1800.3(a)(1)]. The court may also appoint a conservator of the person of a minor who is married or whose marriage has been dissolved [Prob. Code § 1800.3(a)(2)].
We can help individuals and families facing the prospect of obtaining a conservatorship or if appropriate contest the appointment of a conservator.
Probate Code Section 1800.3 provides:
- If the need therefor is established to the satisfaction of the court and the other requirements of this chapter are satisfied, the court may appoint:
- A conservator of the person or estate of an adult, or both.
- A conservator of the person of a minor who is married or whose marriage has been dissolved.
- No conservatorship of the person or of the estate shall be granted by the court unless the court makes an express finding that the granting of the conservatorship is the least restrictive alternative needed for the protection of the conservatee.
California Probate Code 2355(a) provides that “If the Conservatee has been adjudicated to lack the capacity to make health care decisions the conservator has the exclusive authority to make health care decisions for the Conservatee that the conservator in good faith based on medical advice determines to be necessary. The conservator shall make health care decisions for the Conservatee in accordance with the conservatee’s individual health care instructions, if any, and other wishes to the extent known to the conservator.
Conservatorships Of The Estate
In a conservatorship of the estate, a court-appointed conservator manages the financial affairs of a person who is substantially unable to manage his or her financial resources or to resist fraud or undue influence. Probate Code Section 1801(b). The conservator must inventory and invest the conservatee's assets, ensure that bills and taxes are paid and the conservatee's financial needs are met, and keep accurate financial records. According to Probate Code Section 2401 the conservator must use ordinary care and diligence.
Under the conservatorship of the estate, a conservatee is presumed to lack capacity to contarct, sell, transfer, or convey property, to make gifts, incur debts (except in limited circumstances), to delegate powers, to waive any rights or to serve as a fiduciary. Probate Code Sections 1870 and 1872.
Conservatorships Of The Person
A conservator of the person is appointed to manage the conservatee's physical well-being and needs, including food, clothing, personal care, housekeeping, transportation, recreation, and health care. The conservator decides where the conservatee lives and may be required to decide whether the conservatee should live at home or in an institution. The conservator must make sure the place selected is the "least restrictive" appropriate alternative that is available and necessary to meet the individual's needs. Probate Code Section 2352.
Probate Code Section 1820.
- A petition for the appointment of a conservator may be filed by any of the following:
- The proposed conservatee.
- The spouse or domestic partner of the proposed conservatee.
- A relative of the proposed conservatee.
- Any interested state or local entity or agency of this state or any interested public officer or employee of this state or of a local public entity of this state.
- Any other interested person or friend of the proposed conservatee.
- If the proposed conservatee is a minor, the petition may be filed during his or her minority so that the appointment of a conservator may be made effective immediately upon the minor's attaining the age of majority. An existing guardian of the minor may be appointed as conservator under this part upon the minor's attaining the age of majority, whether or not the guardian's accounts have been settled.
- A creditor of the proposed conservatee may not file a petition for appointment of a conservator unless the creditor is a person described in paragraph (2), (3), or (4) of subdivision (a).
Given the parameters of Probate Code Section 1827 the court will shall hear and determine the establishment of the conservatorship according to the law and procedure relating to the trial of civil actions, including trial by jury if demanded by the proposed conservatee.
It should be noted that no conservatorship of the person or of the estate will be granted unless the court makes an express finding that the granting of the conservatorship is the least restrictive alternative needed for the protection of the conservatee [Prob. Code § 1800.3(b)].
LPS (MENTAL HEALTH) CONSERVATORSHIP
This type of conservatorship is for individuals suffering from brian disorders such as Schizophrenia, Manic Depression, and other mental illnesses listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM).
LPS Conservatorships are not appropriate for people with brain trauma, dementia, or substance addiction.
WELFARE AND INSTITUTIONS CODE SECTION §5000 Created the Lanterman-Petris-Short (LPS) Act in the 1967 and concerns teh involuntary civil commitment.
WELFARE AND INSTITUTIONS CODE SECTION §5001.
The provisions of this part shall be construed to promote the
legislative intent as follows:
(a) To end the inappropriate, indefinite, and involuntary
commitment of mentally disordered persons, developmentally disabled
persons, and persons impaired by chronic alcoholism, and to eliminate
(b) To provide prompt evaluation and treatment of persons with
serious mental disorders or impaired by chronic alcoholism;
(c) To guarantee and protect public safety;
(d) To safeguard individual rights through judicial review;
(e) To provide individualized treatment, supervision, and
placement services by a conservatorship program for gravely disabled
(f) To encourage the full use of all existing agencies,
professional personnel and public funds to accomplish these
objectives and to prevent duplication of services and unnecessary
(g) To protect mentally disordered persons and developmentally
disabled persons from criminal acts.
Contact a Los Angeles Conservatorship Attorney
A significant portion of our practice focuses on Conservatorships that put in place legal protections for loved ones who are vulnerable due to a disability or illness. If you need legal help with any of these issues, please contact our office today at 310-914-3222 from Los Angeles, or 714-280-0601 from Orange County, 415-465-6566 from Northern California or 714-280-0601 from Orange County. Our knowledgeable attorneys are ready serve your needs clients in Berkeley, Beverly Hills, Calabasas, Culver City, Encino, Glendale, Hidden Hills, Irvine, Los Angeles, Marin County, San Francisco, Santa Ana, Santa Monica, Sherman Oaks, Thousand Oaks, Torrance, Tustin, Westlake Village and throughout Southern California.