Probate Court: Conservatorships | Guardianships
FAQ's: Conservatorships | Guardianships
Probate Court: Probate Court covers primarily Decedent Estates, Trusts, Conservatorships and Guardianships. In California, conservatorships are set up for care of adults, and guardianships are set up for care of minors. This section covers Conservatorships and Guardianships only:
Notice to parties of Guardianships, Conservatorships, and Personal Representatives of Estates: You may wish to seek legal advice before applying to represent yourself in the above matters. Failure to take timely and appropriate action in these cases may result in serious legal consequences.
Probate Court Investigators. Court investigators primarily assist the Court in cases involving conservatorships and guardianships. Court investigators have specialized training in social work, accounting, mental health and criminal justice. There is a fee for most investigations.
Under California law, the court uses an investigator to assist in determining if a conservatorship or guardianship is really necessary and to determine if the proposed conservator or guardian is the person most suitable to act in the best interests of the proposed conservatee or minor.
- Conservatorships - California law requires court investigators to carefully assess the living situations, general health and well-being and finances of conservatees or potential conservatees to ensure that conservators are acting in the best interests of conservatees. Investigators must visit conservatees regularly, review health and medical records, examine financial accountings prepared by conservators, and prepare reports for the Court on their findings.
- Guardianships - Court investigators review and report on the qualifications of people who are seeking court appointment as guardians for children. These investigations include site visits and interviews with proposed guardians and others to determine the potential impact of the physical, emotional and social environment on the children.
A conservatorship is a court proceeding to appoint a qualified person to manage the personal care and/or the financial affairs of an individual who is either physically or mentally unable to handle his or her own affairs. A person or organization the Court appoints to do this is known as the "conservator." A conservator can be a family member, friend or professional person. The person who is unable to care for him or herself is called the "conservatee."
A conservatorship of the person ends when the conservatee dies or the conservatee regains the ability to handle his or her own personal affairs. A conservatorship of the estate ends when the Court terminates the conservatorship of the estate, typically when the conservatorship estate funds are depleted or when the conservatee dies or regains the ability to handle his or her own financial affairs.
General or Limited Conservatorships
- A Limited Probate Conservatorship applies when the conservatee is developmentally disabled. In this type of conservatorship, the powers of the conservator are limited so that the disabled person may live as independently as possible.
- A General Probate Conservatorship is for all other adults who are unable to provide for their personal needs due to physical injury, advanced age, dementia, or other conditions rendering them incapable of caring for themselves or making them subject to undue influence.
Once a Petition for Conservatorship has been filed, the Court will set the matter for hearing. Court investigators are assigned to interview all persons who are the subject of a petition for conservatorship before the first hearing is held. The court investigator may interview numerous family members, neighbors and others to provide as much information as possible to the Court to assist in making a determination as to whether to grant the conservatorship. When interviewing the proposed conservatee, the purpose of the interview is to determine whether the person understands the proceedings or has any objections to them.
After a conservatorship appointment has been made, court investigators regularly interview both the conservator and the conservatee and report to the Court about the well-being of the conservatee and whether the conservatee's estate is being properly managed. Investigators carefully review the accountings submitted at regular intervals by the conservator to ensure that the accountings appear reasonable and accurate and that all disbursements are made exclusively for the benefit of the conservatee.
On occasion, a temporary conservatorship may be appropriate if there is an emergency that requires an immediate appointment prior to the conservatorship hearing date. A petition for temporary conservatorship must be filed at the same time as the petition for limited or general conservatorship. It may not be filed separately from a general conservatorship. A Petition for Appointment of a Temporary Conservator should have all information supporting the need for emergency orders, including copies of any relevant medical, police, or Adult Protective Services reports.
Lanterman-Petris-Short Act (LPS) Conservatorships
LPS conservatorships are established under the Welfare and Institutions code to provide help for persons who are gravely disabled as a result of their mental disability. These conservatees may be a danger to themselves or others. The conservator is responsible for helping to find a placement and mental health treatment for the conservatee who is gravely disabled. An LPS (mental health) conservatorship makes one adult responsible for a mentally ill adult. This type of conservatorship is only for adults with mental illnesses listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM).
An LPS conservatorship is only for people who are seriously mentally ill and need special care (usually placement in a locked facility and/or very powerful drugs to control behavior).
An LPS conservatorship is used only when the person needs mental health treatment but cannot or will not accept it voluntarily. Because the person subject to an LPS conservatorship may be placed in a locked facility, there are special protections to ensure that the conservatee's civil rights are protected. LPS Conservatorships are investigated by the Office of the Public Guardian/Conservator.
Guardianship is a court process in which someone other than a parent is given custody of a child or when a parent or other person is given authority over a child's property. The child, called the "minor" or "ward," must be under the age of 18. A legal guardian is an adult the Court chooses to be responsible for and care for a child, manage the child's property, or both. It differs from adoption in that, among other differences, guardianships may be terminated, guardians may be removed or replaced, and certain restrictions regarding residence are enforced. An adoption is treated as a natural birth with all of the rights of a parent/child relationship.
A guardianship of the estate allows the guardian to make financial decisions for a child, and is often filed when a minor is to receive a large monetary gift or inheritance. Both parents and non-parents can become guardians of the estate for children. In guardianships of the estate, the guardian may be required to obtain a bond or the Court may require the funds to be placed into a blocked account in which withdrawals are allowed only with prior court approval.
The law requires that the Court conduct an investigation of anyone seeking to become a guardian. A court investigator performs this investigation and there is a fee for this investigation.
Temporary guardianship enables a person to have legal guardianship of a minor prior to the general guardianship hearing. It cannot be filed separately from a guardianship. There must be an urgent need to justify a temporary guardianship.
Forms: Guardianship forms are available in the Civil Clerk's Office. Required forms may include both Judicial Council forms and local forms. Judicial Council forms may be downloaded from the Court's web site through the SHARP (Self Help Assistance and Referral Program) link or by accessing the Judicial Council Forms directly at www.courts.ca.gov .