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self-study / Family Law

Oct. 25, 2021

Demystifying conservatorships: FAQs

Matthew D. Kanin

Of Counsel, Greenspoon Marder LLP

Recent events have drawn attention to California's conservatorship law with an intensity not seen in many years. The state's conservatorship statutes give both government entities (the public guardian) and private actors (relatives and friends) the power to petition a civil court to deprive another individual of rights and freedoms. When is this power appropriately used, and what procedural safeguards exist to ensure it is not misused?

The objective of this article and self-study test is to review the rules applicable to the appointment of conservators and the procedural safeguards in place to establish due process for the accused subject (the "proposed conservatee"). Readers will learn: What is a conservatorship? Are there different kinds of conservatorships? Who is subject to a conservatorship, and who may initiate such a proceeding? When is a conservatorship imposed and how is it initiated? What is the burden of proof to establish a conservatorship and who decides if a conservatorship is to be established?

1. What is a conservatorship?

A conservatorship is a unique creation of state law in which a court designates a surrogate decision-maker for a person living with specific vulnerabilities that impair the person's independence and ability to provide for their own needs. See Probate Code Sections 2100-2102 (nature of the proceeding and relationship) (all statutory references are to the Probate Code unless otherwise specified). This surrogate decisionmaker, called a "conservator" is empowered with rights and responsibilities on behalf of the other person, the "conservatee." See Board of Regents v. Davis, 14 Cal. 3d 33 (1975) (describing the "protective relationship" of a conservatorship). The conservatee experiences a corresponding reduction of rights and decision-making that redefines the boundaries of the conservatee's liberty. See Conservatorship of Roulet, 23 Cal. 3d 219 (1979) (describing the "deprivation" inherent in the relationship). The conservator, in turn, is responsible for exercising these powers as the conservatee's fiduciary (Section 2101), and does so under the supervision of the court (Section 2102).

2. Are there different kinds of conservatorships?

California law uses the term "conservatorship" to describe proceedings under two different statutory schemes: probate conservatorships, which are governed entirely by Division 4 of the Probate Code (Sections 1800-1849.5, 2100-2113, 2200-2217 and 2300-2313), and Lanterman-Petris-Short Act conservatorships, which are created by Chapter 3 of Part 1 of Division 5 of the Welfare and Institutions Code (Sections 5350-5372, with Section 5350 providing that the procedures for LPS conservatorships are "the same" as probate conservatorships, except as specified). LPS conservatorships are only for individuals who have been judicially determined to be "gravely disabled" which means that by reason of a mental health disorder a person unable to provide for the person's basic needs for food, clothing, and shelter. Welf. & Inst. Code Section 5008(h)(1)(A). Some of the procedural differences between LPS and probate conservatorships will be discussed below, while the differences in administration, and the powers of these two types of conservatorships will be discussed in a subsequent article in this series.

Within all probate and LPS conservatorships, there is a distinction between a conservatorship of the person and of the estate. Section 1801(a)-(b). A conservatorship can be created for a person, for a person's estate, or both. Section 1801(c). In this context, the "'[e]state' means all of the conservatee's ... personal property, wherever located, and real property located in this state." Section 2400. So, a conservatorship of the estate is concerned with management and control of the conservatee's property rights and wealth. Section 2400. A conservatorship of the person is concerned with the "care, custody, and control" of a person. Section 2351. This distinction between conservatorship of the person, and estate, exists in both probate and LPS conservatorships.

Within probate conservatorships, there is a further distinct category: the "limited conservatorship," which exists exclusively for individuals with a developmental disability. Section 1801(d). A "developmental disability" means a disability that originates before a person reaches 18 years of age and continues or can be expected to continue, indefinitely, and constitutes a substantial handicap for the person, one that is not strictly physical in nature. Section 1420. The limited conservatorship is intended to "promote and protect the well-being of the individual, shall be designed to encourage the development of maximum self-reliance and independence of the individual, and shall be ordered only to the extent necessitated by the individual's proven mental and adaptive limitations." Section 1801(d). In a limited conservatorship, the conservatee "shall not be presumed to be incompetent and shall retain all legal and civil rights except those which by court order have been designated as legal disabilities and have been specifically granted to the limited conservator." Ibid. A limited conservatorship can be of the person or estate (ibid.), but all of the specific powers that a court may, for good cause, give to a limited conservator are enumerated in Section 2351.5, which is part of Chapter 5 of Part 4 of Division 4 (beginning with Section 2350), which governs rights-and-duties of conservators-of-the-person. Chapter 6 (beginning with Section 2400) does not contain any provisions that make a limited conservatorship of the estate different than an unlimited conservatorship of the estate.

In addition to limited conservatorships, the Probate Code also provides for "temporary conservatorship." Section 2250. A petition for temporary conservatorship can be filed only with, or after, filing of a petition for appointment of a conservator. Ibid. Temporary conservatorships should have "only those powers and duties ... that are necessary to provide for the temporary care, maintenance, and support of the ... conservatee, and that are necessary to conserve and protect the [conservatee's] property ... from loss or injury." Section 2252. (There are additional rules specific to temporary conservatorships that are beyond the scope of this article.) In a proceeding under the LPS Act, a temporary conservatorship is available only as provided for in Welfare and Institutions Code Section 5352.1, but not under Section 2250. See Section 2250.8.

3. Who is subject to a conservatorship, and who may initiate such a proceeding?

A proposed conservatee is any living person who resides in California, or who has an estate in California, and who is either (a) an adult, (b) an individual who will become an adult on the effective date of the order, or (c) a married minor whose marriage has been dissolved. Section 1800.3. A proposed conservatee can even be a missing person whose whereabouts are unknown in the event that person has an estate in California. Sections 1840-1844.

A probate conservatorship or a limited conservatorship proceeding of the person, or the estate, or both, can be initiated by the proposed conservatee, a spouse or domestic partner of the proposed conservatee, a relative, any other interested person or friend of the proposed conservatee, and any interested state or local agency. Section 1820. Typically, this interested state or local agency is the Office of the Public Guardian. Section 2920 (detailing that the public guardian may be appointed as a conservator of last resort, on its own, or at the request of the court, when a person requires a conservator, but there is no one else who is qualified and willing to act and whose appointment as guardian or conservator would be in the best interests of the person). There are two major exclusions. Neither a creditor (Section 1820(c)) nor a spouse or domestic partner who is a party to a pending action for dissolution or nullity may petition to become, or serve as, a conservator (Section 1813).

When the probate conservatorship has been requested by the proposed conservatee, the court can establish the conservatorship upon a showing of good cause. Section 1802. In this context, good cause can include an allegation that a person is in ill health and does not wish to be burdened by having to manage their own affairs. Section 1802; see Conservatorship of Gray, 12 Cal. App. 3d 513 (1970). Only the Office of the Public Guardian can initiate an LPS proceeding. Welf. & Inst. Code Sections 5114, 5301.

Apart from the aforementioned restriction on creditors, Section 1820 places few a priori limitations on who may initiate a petition for a probate conservatorship. The legislature has introduced enhanced pleading requirements to Section 1821 in cases where private professional fiduciaries (as defined in Section 2340 and Business and Professions Code Section 6501) are involved. (Stats 2014, Ch. 553 (SB 940)). Subdivision (c) of Section 1821 now requires, among other things, an allegation identifying who engaged the private professional. Section 1821(c)(2)(B).

4. When is a conservatorship imposed and how is it initiated?

The answer depends on whether it is a conservatorship of the person or their estate. A conservatorship of the person may be established for any person who is unable to provide properly for their own personal needs for physical health, food, clothing, or shelter. Section 1801(a). A conservator of the estate may be appointed for a person who is substantially unable to manage their own financial resources or resist fraud or undue influence. Section 1801(b). A conservatorship of the person and their estate may be established for a person to whom both of these conditions apply. Section 1801(c).

A conservatorship cannot be created without a court order and is only effective upon issuance of a document called "Letters of Conservatorship" by the clerk of the court in the county in which the conservatorship action is filed. Sections 1830, 2310-2313. These letters, which are similar in form to the Letters of Administration issued to the personal representative of a decedent's estate, signify the authority of the conservator to act, and state concisely the powers held by, and reserved from, the conservator, and that the conservator has taken the oath required by law. Sections 2300, 2310(a). Without these letters, no one has authority to act as conservator for anyone else. Sections 2300, 2310.

California law codifies other estate planning tools by which one person could choose another to manage his or her assets or affairs without a court order, provided that all parties have capacity. These include: powers of attorney for assets (Section 4120), Advance Health Care Directives (a kind of power-of-attorney for health care) (Section 4670), or a living trust (Sections 15200-15211). These management relationships also come under the jurisdiction of the Probate Code and parties thereto may petition the superior courts for orders. Sections 4500-4545 (powers of attorney); 4750-4771 (health care directives); Sections 17000-17457 and 19020-19030 (trusts). Unlike conservatorships, these are wholly voluntary relationships, and do not require prior leave of court, or ongoing court supervision, as a conservatorship does. Sections 1800.3, 2102; Cf. Section 17209 ("The administration of trusts is intended to proceed expeditiously and free of judicial intervention...").

A conservatorship case can only be initiated by filing a written petition with the appropriate superior court. Section 1821. This section prescribes mandatory allegations that must be set forth in the petition, and the California Judicial Council has created a specific form that can be used. Section 1821(a). In addition to the petition, the petitioner must also file two forms -- a Screening Form and a Supplemental Information, which are treated as confidential and not available for viewing as a public record. Cal. Rule of Court 7.1050. The Screening Form requires the petitioner to make detailed allegations about the conservatee, so that the proposed conservatee and the court can vet whether the proposed conservator is an appropriate person to be entrusted with the responsibility of office, which includes conducting a criminal background check. The Judicial Council and superior court of each county may also prescribe additional required forms, to initiate the case. In many cases, the petitioner must also file a Doctor's Capacity Declaration, a form that was designed by the Judicial Council, in consultation with legal and medical practitioners, to distill and simplify diagnostic information to assist the court in determining whether the requirements for a conservatorship of the person or estate have been met. The superior courts of some counties have specified additional forms to append the Capacity Declaration with more detailed information. See, e.g., Orange County Superior Court Local Form L-3010.

Once the proper paperwork has been filed, and the filing fee paid, or waived, the petition will be set for hearing by the court. At or after the time that the petition is filed, the clerk of the court issues a citation to the proposed conservatee, and it is the petitioner's responsibility to have the proposed conservatee personally served with the citation, and to provide notice of the hearing, using the form prescribed by the Judicial Council to all persons entitled to notice of the proceeding. See Sections 1822-1823.

5. What is the burden of proof to establish a conservatorship and who decides if a conservatorship is to be established?

In any proceeding to establish a conservatorship, other than one brought by the proposed conservatee (a voluntary conservatorship), the petitioner has the burden of proof. For a probate conservatorship, that burden is "clear and convincing evidence," the highest burden used in civil proceedings. Section 1801(e); see Conservatorship of O.B., 9 Cal. 5th 989 (2020) (discussing burden of proof). The burden applies to all elements of the petitioner's case. In addition to proving substantial inability, the petitioner must prove that the conservatorship is the least restrictive means for the protection of the individual. Section 1800.3(b). For an LPS conservatorship, the petitioner must prove the grave disability of the proposed conservatee beyond a reasonable doubt and obtain a unanimous jury verdict. Conservatorship of John L., 48 Cal. 4th 131 (2010).

In any proceeding to establishment a conservatorship, other than one brought by the proposed conservatee, the proposed conservatee has the right to trial by jury, if requested. Section 1827. This includes LPS conservatorships. Welf. & Inst. Code Section 5350(d)(1). The right is waivable, but only by the proposed conservatee -- not by the conservatee's counsel. See Conservatorship of Kevin A., 240 Cal. App. 4th 1241 (2015) (reversible error to accept counsel's waiver of jury, when proposed conservatee expressly demanded jury). 


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