CONSERVATORSHIPS AND GUARDIANSHIPS
WKBK&Y MAKES CONSERVATORSHIP AND GUARDIANSHIP EASIER TO MANAGE
When conservatorship or guardianship is being seriously considered, it can be a stressful time. If you're in the process of seeking conservatorship for a loved one, you are likely now aware of just how challenging this can be. Even if you seek appointment as conservator with the best of intentions, you can still find yourself unintentionally running into problems because the legal requirements imposed on you. Guardianship proceedings can be just as challenging. When it comes to establishing legal authority over a minor or an estate within a family, it can come during an emotionally difficult moment.
Both of these proceedings can fracture a family over irreconcilable differences. Additionally, the legal costs can become difficult to bear if the involved parties decide to challenge each other over every point of contention. WKBK&Y's attorneys have helped parties on all sides of these proceedings, and understand what it takes to bring them to a successful conclusion.
INITIATING A CONSERVATORSHIP
A conservatorship is initiated when the person desiring to assist the afflicted individual files a petition with the court to be appointed as the conservator of the individual’s person (to assist with providing food, clothing, and other personal needs, such as obtaining medical care) and/or conservator of the individual’s estate (to manage the individual’s financial affairs).
Because a conservatorship circumscribes the conserved individual’s rights to manage his or her own affairs, the court does not grant conservatorships lightly. As a result, a person seeking appointment as conservator must demonstrate the need for the conservatorship to the court by submitting physician declarations and other evidence to the court regarding the proposed conservatee’s impairment and the need for the conservatorship. The person seeking appointment must also undergo a background check to determine whether he or she is qualified and fit to serve as conservator. A court investigator will also perform an independent investigation as to the need for the conservatorship. The proposed conservatee is entitled to counsel in the proceedings, and the court will appoint counsel if the proposed conservatee does not already have an attorney representing him or her.
If the proposed conservatee does not object to the conservatorship, the court will grant the conservatorship once the need for the conservatorship is adequately demonstrated to the court. If the proposed conservatee does object to the conservatorship, a trial may be required before the court can determine if the conservatorship is indeed necessary.
Handle Proceedings Carefully
Conservatorship proceedings can be very involved and oftentimes require a delicate touch, as family relationships can be irrevocably damaged by such proceedings. A qualified attorney in this area will attempt to help his or her client obtain a favorable resolution of the matter in a manner which minimizes distress to the proposed conservatee or his or her family members.
Once a conservatorship is established, there are ongoing duties and reporting requirements for the conservator:
- If there is a conservatorship of the estate, the conservator must file accountings with the court on a regular basis, to show how the conservatee’s assets are being managed.
- If the conservatee’s assets must be sold, the conservator will have to obtain court approval before any sale can occur.
- If the conservatee must be moved from his or her home, the conservator must follow certain legal procedures so that the court can be assured that the move is in the best interests of the conservatee.
While many conservatorships are established because the proposed conservatee has developed dementia or suffered some other significant mental or physical impairment, conservatorships are also required where the conservatee was born with a developmental disability that makes it difficult for him or her to handle personal and financial affairs after reaching the age of majority.
A special type of conservatorship, known as a limited conservatorship, was developed specifically for those situations where the proposed conservatee is developmentally disabled. A limited conservatorship provides the conservatee with specific assistance while promoting the conservatee’s ability to live as independently as possible; its purpose is to ensure that someone else has the legal authority to handle those tasks that the developmentally disabled individual cannot manage on their own.
ESTABLISHING GUARDIANSHIPS
In California, a guardianship is a court proceeding in which someone seeks legal authority to act on behalf of a minor child. Typically, a guardianship is necessary where the minor’s parents have both predeceased the minor, or where someone (the parents or a third party) have died and left money or assets to a minor.
There are two types of guardianships—guardianship of the person and guardianship of the estate.
This person is vested with the legal authority to provide for the personal needs of the minor, i.e. food, clothing, shelter, medical care, etc. A guardian of the person does not have the power, however, to manage any financial assets belonging to the minor. A guardianship of the person is often necessary when both the mother and father of the minor have predeceased the minor. In those cases, absent a guardianship, no one has the legal authority or obligation to provide for the minor’s personal necessities.
If the deceased parents have named a guardian of their minor child in their wills, that person can petition the court to be appointed as guardian of the minor. After an in-depth investigation by the court, the court will appoint the designated individual as guardian if the court believes that the appointment is in the best interests of the minor.
If there is no will nominating individuals to serve as guardians, then relatives have first claim on serving as guardians. However, all guardian appointments must be approved by the court and will be made only after the court is satisfied that the person or persons seeking appointment are fit to serve in that capacity.
If both parents of the minor child are dead and the child owns assets or has inherited property as a result of their deaths, then a guardianship of the estate will also be required. The guardian of the estate may or may not be the same individual who serves as guardian of the person.
As with the guardian of the person, the court will require an investigation of the person seeking to serve as guardian of the estate and will only approve the appointment after the court is satisfied that the person seeking the appointment is fit to serve in that capacity.
It is not unusual for a guardianship of the estate to be needed even where the minor child’s parents are both still alive. For instance, if a grandparent dies and has left a life insurance policy or retirement account payable to a minor grandchild, a guardianship of the estate almost always is required to collect and hold the proceeds until the child has reached the age of majority.
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