The Law Offices of Joseph Torri handles a limited number of conservatorship cases in Southern California. California judges can appoint a responsible person or organization (Conservator) to care for another adult (Conservatee) who cannot care for him or herself nor manage his or her finances.
Probate conservatorships can be general conservatorships and limited conservatorships. General conservatorships can be over elderly people who cannot take care of themselves or their finances, but they can be over younger people who have been seriously impaired in some type of accident. Limited conservatorships do not provide the higher level of care that a general conservatorship will provide since conservatees in these circumstances do not need the higher level of care.
Conservator of the Person
When a conservatee cannot protect nor care for himself or herself, the court will appoint a conservator to make sure the conservatee has the proper food, clothing, shelter and medical attention.
Conservator of the Estate
Conservators of the estate will be appointed to handle the conservatee's finances. Conservators can pay the conservatee's bills and collect the conservatee's income.
Who can file for Conservatorship?
Many people can file for conservatorship. Spouses, domestic partners, relatives, interested government agencies, interested persons or friends of the proposed conservatee, and the actual proposed conservatee himself or herself can file. The spouse or domestic partner is the preferred person to file. The next preferred person would be the conservatee's adult child. Parents and then siblings are the next preferred persons to file. Any other person the law will allow is next on the preferred list and then the public guardian. If the person at the top or closest to the top of the preference list does not want to be the conservator, he or she can nominate someone else.
The process includes filing a petition with the court. Informing the family and the proposed conservatee is necessary. The petitioner will have to let the court know if there are less restrictive alternatives. The proposed conservator will also have to pay a filing fee, but it may be waived if he or she qualifies for a fee waiver with the court. There will be a court investigator that will speak with people and assess assets, etc. There will be a hearing that the conservatee must attend unless his or her presence is waived. California conservatorship attorneys that provide representation can explain the process in greater detail.
Emergencies may arise that give need for a temporary conservatorship. The proposed conservator can file a petition in the court with jurisdiction for temporary emergency orders. The temporary conservator will need to provide for the temporary care, maintenance and support of the conservatee. If granted, the authority of the conservator can last for thirty days until there is a hearing on the permanency of the conservatorship.
Why Avoid a Conservatorship?
The process is very long and can last for years, and can be very emotionally draining and embarrassing. Documents filed with the court are visible to the public. Therefore, the whole world has access to what would otherwise be private information. Also, the process is expensive since there are filing fees, investigator fees, accounting fees, conservator fees, attorney's fees, maintenance fees, recording fees, etc.
Least Restrictive Alternatives
The conservatee is the person whose affairs and/estate will be handled by the conservator since a court will find the conservatee has limited mental and/or physical conditions. Conservatorships are the most restrictive method of having a surrogate make decisions for the conservatee. The probate court has jurisdiction over conservatorships in California. The court has to look for less restrictive alternatives before ordering a conservatorship of the person or conservatorship of the estate. Since conservatees generally don't create their own estate plan prior to becoming incapacitated, the path of filing for a conservatorship is sought. Advanced healthcare directives and power of attorneys, and revocable living trusts are forms of less restrictive alternatives to a conservatorship. Advanced healthcare directives allow for medical decisions and treatments to be made along with shelter, clothing and sustenance decisions. Valid advanced healthcare directives help the potential conservatee avoid a conservatorship. Durable powers of attorney address the elderly person's finances, and durable powers of attorney help people avoid conservatorship court. Revocable living trusts control the elderly person's assets during his or her life and after death. Revocable living trusts provide an alternative to conservatorship and probate court since they are less restrictive alternatives to conservatorship.
Unlike probate court, the conservator is not entitled to a statutory fee computed as a percentage of the value of the estate being administered. However, the size of the conservatee's estate is one consideration the court can look at in evaluating the reasonableness of the fee. The court can award to the conservator a fee that is just and reasonable.
Unlike probate court, the attorney for the conservator is not entitled to a statutory fee computed as a percentage of the value of the estate being administered. However, the size of the conservatee's estate can be used in the reasonableness analysis by the court. The Law Offices of Joseph Torri charges a standard hourly rate for conservatorship cases. Although attorney's fees do add up, we believe that our legal fees are reasonable. We aim to provide reasonable attorney's fees and we believe our retainers are reasonable.
Please call our office at (866) 630-5757 for your initial consultation or send us a message via our website.