Conservatorship & Guardianship
A conservator is appointed by the Court in California when an adult cannot care for themselves and/or manage their own finances. A conservatorship is a formal and complex process whereby the conservator who is usually a spouse or domestic partner, family member, close friend, or hired professional is granted a Court Order over the person and/or estate to make decisions for the benefit of the protected person (the “conservatee”). It restricts the conservatee’s powers over their personal care and/or financial decisions and is essential when the protected person is vulnerable to persons who might take financial advantage of them. The conservatorship process is highly scrutinized by the Court in order to protect the rights of the individual being conserved. The Court has many systems in place to ensure that the best interests of the conservatee are considered. There are numerous types of conservatorships instituted by our Courts and the team at Bohm Wildish & Matsen, LLP has expertise in obtaining appointments in the complex areas of associated with California conservatorship laws. Careful consideration is first always give to any possible conservatorship alternatives but when necessary, Bohm Wildish & Matsen, LLP has the legal experience and knowledge to thoughtfully guide and support you through the conservatorship process and transition.
A guardian is an adult, other than a biological parent, who is legally responsible for the needs of a minor child. A guardian can only be appointed in California by the Court. There are two types of guardianships in California: guardianship of the person and guardianship of the estate. A guardian of the person has legal custody and responsibility for the minor, and a guardian of the minor’s estate has legal responsibility to manage the minor’s assets. A guardianship is not an adoption and is not as permanent a relationship. However, by obtaining a guardianship, you will have the responsibility of caring for all of the minor’s needs including: food, shelter, health care, education, and emotional and physical well-being until age 18. The guardianship appointment process is complex and is heavily scrutinized by the Court in order to protect the personal and financial interests of the minor. At Bohm Wildish & Matsen, LLP, we have had the opportunity to handle numerous guardianship appointments throughout California and take great care and skill in handling the delicate issues involved and in making the process and transition for the minor as smooth as possible.
- Adult Conservatorship
- Conservatorship of the Estate
- Conservatorship of the Person
- Minor Child Guardianship
- Power of Attorney
- Special Needs
WHAT IS A CONSERVATORSHIP?
A conservatorship is a court case where a judge appoints a responsible person or organization (called the “conservator”) to care for another adult (called the “conservatee”) who cannot care for himself or herself or manage his or her own finances.
A conservatorship may cover the conservatee’s personal needs such as health care, social contacts, residence, etc. This is referred to as a “conservatorship of the person.” A conservatorship may also give the conservator control over the conservatee’s finances. This is referred to as a “conservatorship of the estate.”
IF I HAVE A POWER OF ATTORNEY, DO I STILL NEED A CONSERVATORSHIP FOR MY MOTHER?
A Power of Attorney is an extremely useful tool in caring for the needs of an incapacitated adult, and it may make a conservatorship unnecessary. On the other hand, the Power of Attorney may not grant you broad enough powers to cover your mother’s financial needs, or there may be disagreement between you, your mother, or other important people in your mother’s life that necessitate court involvement in the form of a conservatorship proceeding. You should discuss your mother’s specific needs with an experienced attorney to determine whether your existing documents for incapacity planning are sufficient or whether a conservatorship is a wise step.
WHAT ARE MY DUTIES AS A CONSERVATOR?
If you are conservator of the person, you are responsible for that person’s care and protection. You must arrange for the conservatee’s heath care, meals, clothing, personal care, housekeeping, transportation, and recreation.
If you are conservator of the estate, you have a duty to manage the conservatee’s finances, protect the conservatee’s income and property, make an inventory of the conservatee’s assets, make sure the conservatee’s bills are paid on time, prudently invest the conservatee’s money, ensure that the conservatee’s taxes are paid on time, keep accurate records, and report the conservatee’s financial condition to the court on a regular basis.
IS THERE ANY WAY TO AVOID A CONSERVATORSHIP?
There are many ways to avoid a conservatorship for an incapacitated adult, including the thoughtful use of trusts, powers of attorney, and opportunities for care. Much of this planning must be done in advance of the adult’s incapacity, and much of it requires the willing agreement and cooperation of the incapacitated person. Consult with an estate planning attorney to determine what your options are to plan for your own incapacity or the incapacity of your family members.
WHAT IS A GUARDIANSHIP?
A guardianship is when a court orders that an adult, who is not the child’s parent, to have custody of and be responsible for taking care of the child or the child’s property (called “estate”); or both. A legal guardian must be over the age of 18 and a legal resident or a citizen of the United States. In California, these two types of guardianship are called “Guardianship of the Person” or “Guardianship of the Estate.” A guardian of the person can be anyone such as a relative, friends of the family, or other people suitable to raise the child. A guardian of the estate is a person appointed by the court to manage a child’s income, money or other property until the child turns 18. In most cases, the court appoints a surviving parent to be the guardian of the child’s estate if the other parent is deceased, unsuitable or absent. In many cases the same person can be the guardian of the person and estate.
HOW DO I BECOME A GUARDIAN?
In order to become a guardian you must file papers with the court and go through a number of steps leading up the court hearing. It is advisable to have an attorney to guide you through the rigorous paperwork, filing ad service requirements. The court does not require and attorney but mistakes completing the court forms and giving “formal notice” to all relatives is common without an attorney, as the forms and rules for notice are complicated. If not followed carefully it can result in having to go back to court and taking longer to process your case. An attorney can help you present your case to the court, especially if one or both parents object to the guardianship.
WHAT ARE MY RESPONSIBILITIES AS GUARDIAN?
A guardian of the person duties are as follows:
- You must provide a home for the child. You must obtain court permission before you can move the child to a residence outside of California and tell the court in writing right away
- You decide where the child goes to school. You must stay involved in the child’s education, and help the child get any special services, like tutoring, that they need.
- You must take care of the child’s medical and dental needs, making sure the child gets proper care. In most cases, you can also make decisions about any medical treatment the child needs.
- At least once a year, you will turn in a status report to the court. You must also meet with any court investigators or social workers sent by the court and come to court when required.
- You may also have some liability for a child’s actions for any harm or damages the child causes, including graffiti or getting in a car accident. Like a parent, a guardian is responsible for the intentional acts of the minor, and also for negligent supervision of the minor or allowing a child access to a car when unlicensed or not capable of handling the responsibility.
- You cannot let the child live with his or her parents or anyone else. The child must live with you unless the judge says otherwise. You can let the child stay with other people for visits or short periods of time without a court order, as long as the child continues to primarily live with you, the guardian.
- The parents may be able to visit and see their child, but you (or the court) decide when and how often. The parents may get custody of their child back in the future if the court decides that the child no longer needs to have a guardian.
- You may give the child permission to enlist in the military. If the child enters into active duty with the armed forces, the guardianship will end. California law will consider the child to be an adult.
- Both you and the court must give permission for the child to get married. If the child gets married, the guardianship will end. California law will consider the child to be an adult</p> <p>A guardian of the person duties are as follows:
- Within 90 days after being appointed guardian, you must file financial reports with the court, together with an inventory and appraisal showing the value of the assets in the estate.
- You must collect and make a list of all the child’s property and find, get, and protect all money and property that are part of the estate. All property must be in the estate’s name.
- Record copies of your appointment as guardian “Letters of Guardianship” with the County Recorder in every county where the child owns real property (land, houses or buildings).
- Keep all the child’s money and property separate from everyone else’s money and property, including your own.
- Unless there is a court order, a guardian cannot pay him or herself or his or her attorney with the estate’s funds; give away any part of the estate; borrow money from the estate, or spend the estate’s money.
- Keep complete and accurate financial records, including records of every transaction that has to do with the estate. Write down all of the money that comes in and all money that goes out, and keep receipts for everything you buy using estate money.
- Get and/or keep insurance coverage on the child’s property.
- Prepare a financial report which is filed with the court, called an “accounting”. The accounting is filed 1 year after you become guardian and after that, you must file a report every 2 years. If you do not file the accounting, the court could order you to do so or could remove you as the guardian.
- During the guardianship period you must maintain adequate bond and if the assets increase or decrease substantially, you must adjust the amount by going to court for an order allowing the change in the amount of bond.
DO I HAVE TO GO TO COURT TO BECOME A GUARDIAN?
To become the legal guardian of a child or a child’s estate court approval is required. After filing the Petition for Appointment of Guardian of Minor the court will issue a hearing date to consider your guardianship application. You will need to attend this hearing either on your own if representing yourself or together with your attorney if you are legally represented.
MY CHILD HAS SPECIAL NEEDS – CAN I PLAN FOR HIM AND PROTECT HIS GOVERNMENT BENEFITS?
Yes. There are a variety of options to provide for your child’s needs now and in the future, and many of them can be arranged so that his needs-based government benefits can continue throughout his lifetime.
MY DAUGHTER WAS INVOLVED IN AN ACCIDENT THAT LEFT HER INCAPACITATED. CAN WE PLACE HER SETTLEMENT INTO A TRUST?
Yes, but you will need to move quickly. There is a particular form of a special need’s trust that is ordered by the court involved with the settlement. This type of trust is established pursuant to 42 U.S.C. §1396p(d)(4)(A), and the document must include very specific language and terms. This type of trust should be prepared by an attorney and submitted to a court for approval.
MY CHILD HAS A DISABILITY WHICH MAY OR MAY NOT AFFECT HER INDEPENDENCE. DO WE STILL NEED SPECIAL NEEDS PLANNING FOR HER?
You should discuss your particular concerns with you attorney. It is common to draft trusts for children with disabilities that give the trustee discretion to consider the child’s needs, wishes, and financial independent prior to making a distribution.
CAN MY CHILD LOSE HIS BENEFITS IF MY PARENTS LEAVE HIM AN INHERITANCE?
Yes. If your children receives an inheritance outright from any source, the inheritance may disqualify him from receiving benefits, at least until the inheritance has been completely used and applied to the child’s needs. Special needs trusts can provide ideal solutions in situations like this. Ideally, a special needs trust would be created in advance of your parents’ death, but if your children has already received the inheritance, you may be able to move that inheritance into a “self-settled” special needs trust that will still protect your child’s benefits.