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self-study / Family Law

The life and times of conservatorships

Beti Tsai Bergman

Founder and Principal, Peninsula Law

Beti is certified in Estate Planning, Trust and Probate Law by the California Board of Legal Specialization.

If you did not know about conservatorships before, no doubt you are acquainted with them now given the public light cast on Britney Spears' conservatorship and the Free Britney Movement that ensued. Britney Spears is not the only celebrity when it comes to conservatorships. She shares the stage with the likes of: Casey Kasem, Zsa Zsa Gabor, Mickey Rooney, and Amanda Bynes, just to name a few. Conservatorships have come under scrutiny in the public, and questions naturally have arisen as to how conservatorships work. This article sheds some light on the nuts and bolts of conservatorships.

When does a conservatorship happen?

A conservatorship (or guardianship, as some other states refer to them) is a legal means of managing those who cannot manage themselves or their financial affairs. In probate court, there are two different types of conservatorships: conservatorship of the person, and conservatorship of the estate.

A conservatorship over the person is needed when a person cannot manage activities of daily living. Commonly, they are not able to attend to tasks such as bathing, dressing, brushing their teeth, going to the bathroom, preparing meals, feeding themselves, or making medical decisions. The person's lack of competency usually is a result of a decline in cognition due to an ailment, such as dementia. It could also be a product of a disability that a person developed as a minor, in which case he or she would be subject to a limited conservatorship, which provides the developmentally disabled conservatee with more independence and freedom than a general conservatorship. Then there are LPS conservatorships for mental health patients. LPS stands for Lanterim Petris Short and describes the type of conservatorships that are heard and overseen in mental health court, rather than probate court. LPS conservatorships come up for renewal annually, whereas probate conservatorships are permanent until terminated.

A conservatorship over the estate is needed when a person needs help managing their financial affairs, such as for a person not paying their bills, not filing their taxes, or not managing their real property. Often times, the person does not know what assets they have, or may not know the whereabouts of their bank accounts.

A conservatorship was needed over Casey Kasem because he suffered from debilitating Parkinson's disease at the age of 81 leaving an $80 million fortune that needed to be managed. Singer and songwriter Joni Mitchell needed to placed under conservatorship after suffering an aneurysm rendering her unable to speak.

In other instances, a person may be cognizant of their assets and properties, but a conservatorship over the estate is needed because the person is vulnerable to undue influence or financial abuse. They may be unusually spending: such as suddenly gifting shopping sprees or monetary gifts to a new person who inexplicably befriended the person.

A person could also consent to a conservatorship. Such was the case for Mickey Rooney. Rooney agreed to allow his lawyer to control his estate under a conservatorship, after Rooney maintained being a victim of misappropriation of funds by his stepson.

How is a conservatorship implemented?

A petition must be filed in probate court to appoint someone as conservator. There is an order of priority as to whom may be appointed as a conservator. Priority goes to the spouse, then an adult child, then a parent, then a sibling, then any other person. Each of these categories of people may also nominate someone, and the nominee will have priority of the nominator, but subordinate to other persons within the same class of people who made the nomination. When there are no persons within these classes of people who can step up to act as a conservator, there are private professional fiduciaries who can act as conservators, or the Public Guardian may be appointed as conservator.

The petitioner can hire a lawyer to help them with the petition process, or services such as Bet Tzedek Legal Services offer pro bono assistance with this process for low-income individuals.

The Probate Court will set a hearing on the petition for conservatorship. The matter may become contested if there are competing petitioners and a dispute over whom should be appointed as conservator. It may also become contested by the proposed conservatee who may object to being placed under conservatorship altogether.

The Proposed Conservatee's Rights

The proposed conservatee is entitled to oppose the conservatorship. They are also entitled to legal representation during the process. As a matter of course, the court will appoint an attorney to represent and advocate for the conservatee. In Los Angeles County, there is a panel of private attorneys who act as court-appointed counsel for proposed conservatees. In other counties, such as Orange County, a public defender will represent the proposed conservatee.

Sometimes, the proposed conservatee will want to retain an attorney of their own choice. The court will then be in the position of determining whether the proposed conservatee is competent enough to retain an attorney on his or her own accord. At the beginning of Britney Spears' case, the court determined that she was not competent enough to retain her own lawyer, and the court appointed an attorney from the court's panel to represent Spears. The court recently cleared Britney Spears to hire a lawyer of her own choice, which she has now done.

The petitioner who is seeking the conservatorship must show that a conservatorship is the least restrictive option for protecting the proposed conservatee. A conservatorship is not allowed to be implemented if there are lesser restrictive alternatives available. A lesser restrictive option may be, but is not limited to, that the proposed conservatee has a power of attorney for financial management or a healthcare directive that gives an agent legal authority to act on behalf of that person.

The standard of proof for a conservatorship is clear and convincing evidence. This must involve a capacity declaration from a qualified doctor attesting to the proposed conservatee's lack of capacity. When the proposed conservatee contests the conservatorship, then the proposed conservatee needs to show that either a lesser restrictive alternative to a conservatorship is available, or that they have the requisite capacity and ability to care and protect themself.

In the case of Beach Boys' Brian Wilson, his cousin filed for conservatorship over Wilson based on the cousin's claims that Wilson's psychologist and business partner was manipulating him by keeping him overly medicated, such that Wilson was unable to properly attend to his personal needs. Family members also claimed that Wilson's business partner was isolating Wilson from them. Wilson maintained that he did not need to be conserved, was free of additions, and was able to care for himself and manage his estate. A confidential settlement was entered whereby a conservator was appointed for Wilson with discrete powers over Wilson.

When the dispute is not over whether the proposed conservatee should be conserved at all, but rather who should be appointed as the conservator, then the issue to be tried will be which person is the most suitable and qualified to act as the conservator. Sometimes a proposed conservator is the very person being suspected of taking advantage of the proposed conservatee. Such was the case in Zsa Zsa Gabor's conservatorship. Zsa Zsa Gabor's husband ultimately won the battle

over whether he should be appointed as Zsa Zsa's conservator after a challenge over his appointment and accusations of financial mismanagement were made by Zsa Zsa's daughter.

Similarly, in Casey Kasem's case, his wife was appointed as his conservator over allegations from family members that she was isolating Kasem. A confidential agreement was entered for the children's visitation with their father.

Most trials in probate court are bench trials. One of the exceptions is when a proposed conservatee contests being placed under conservatorship. In such a case, the proposed conservatee is entitled to a jury trial.

What are the consequences of a conservatorship?

Once someone is conserved, the conservatee no longer has the legal ability to make decisions for herself. Instead, the conservator will work with healthcare providers to determine what kind of medication should be administered to the conservatee; the conservator will determine where the conservatee should live; and the conservator will be in charge of caregivers to attend to the conservatee's daily tasks.

The conservatee may retain certain rights with a court order. The conservatee also may retain the right to vote if they can communicate whether they want to participate in the voting process. The conservatee also does not necessarily lose their right to make a will, as testamentary capacity for simple wills is relatively low. Similarly, there is not an automatic loss of the right to marry, as the legal capacity required to enter marriage is even lower than the legal capacity to make a will. Indeed, the conservatee is presumed to have the capacity to marry or enter a registered domestic partnership. Any person who wants to challenge the marriage or domestic partnership must show that the conservatee has a specific deficit in their mental functioning that is directly correlated to their decision to marry or enter the domestic partnership.

When there is a conservator over the estate, the conservatee will no longer be able to enter contracts, open bank accounts or credit cards, or buy or sell property (again, unless there is a court order allowing the conservatee to retain certain powers). Britney Spears has been able to sign contracts during her conservatorship, prompting the speculation that she retained certain rights despite being under conservatorship.

The intention of the conservatorship is to protect the conservatee. To that end, the court oversees the conservatee and the conservatorship during the course of the conservatorship. The probate court sends an investigator to make regular visits to the conservatee to investigate and report back to the court on the status of the conservatorship. The probate investigator is neutral. The probate court also requires and reviews regular accountings of the estates.

When does a conservatorship end?

A conservatorship can end one of two ways: when the conservatee dies or by court order. Typically, conservatorships terminate upon the death of the conservatee. The conservator will then retain some powers to wrap up the affairs of the conservatorship, such as, preparing a final accounting of the estate and transferring property to the beneficiaries of the conservatee's estate.

More rarely, a conservatorship will end because the conservatee no longer needs to be conserved because they have regained capacity. Under these circumstances, a petition to terminate the conservatorship must be filed with the court so that the court may issue the order terminating the conservatorship. Such a termination petition may be filed by: the conservator; the conservatee; the conservatee's spouse; domestic partner; relative; friend, or any other interested person. The termination must be based on proof that the conservatee can take care themselves personally and/or financially. The burden of proof is on the person petitioning to end the conservatorship.

This brings us full circle to the Britney Spears case. Under the representation of her new and personally chosen counsel, she has not yet filed a petition to terminate her conservatorship, but has filed a petition to replace her father with her CPA, as the conservator of her estate. She remains under a conservatorship of her person with a private professional fiduciary as her conservator.

#1029

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