Archive for the ‘Conservatorship’ Category
Recently Sarah wrote about choosing a guardian for minor children in the unlikely event that both parents have died, but what happens when one or both parents are alive but are not able to care for their child? This can happen when the parents have a serious illness or injury, or if the court determines that it is detrimental for the child to remain in their care. It is also possible for a non parent to become a guardian if the parents have left the child in their care for a long period of time. In this case, the child may have bonded with the person and come to view that person as a mother or father, making it in the child’s best interest to remain in their care.
All guardians must be approved by the court (even when nominated by the parent). A court must approve the guardianship in order for the person nominated to obtain legal authority to do things, such as, talk to the child’s doctor or enroll them in school. The court process ensures that the named guardian is qualified to safely and effectively care for the minor child.
Sometimes, there may be alternatives to a formal guardianship that would solve the problems presented in a particular case, and guardianship may not be necessary or appropriate. An attorney who specializes in guardianships can help determine the best way to handle each individual situation.
Tell a parent or friend you care, you are here to help, and want to be a part of an ongoing dialogue about their changing needs. Acknowledge past help they’ve given you and express a desire to return the favor. Find a way to frame the issue that is positive, focused on strengths rather than deficits, prevention rather than accusations of decline.
Ask for professional help from doctors, lawyers or financial professionals who work closely with your parent. Reach out to your parent’s network. Identify people they trust who are willing to meet with your family to help introduce topics appropriate to the skills of that particular professional. A trust attorney, for example, can meet to explain how the estate plan works, and who will provide what type of support if the need arose. Some professionals talk with clients about issue spotting, transitions in needs, connecting with community resources and many other important points on a regular basis. Others are uncomfortable with these topics, so scout out resources with a brief phone call ahead of time.
There are many signs that a parent needs help. Financial indicators include overdue utility bills or disruption in utility services. Bounced checks or undeposited income checks laying around the house also show a lack of financial engagement that may indicate financial danger. Engagement in scams or lack of awareness around charitable giving can both show a decline in capacity and may mean your parent has already becomes a target of financial elder abuse.
Personal care indicators are most significantly marked by falls or other critical health events, but there are often earlier, more subtle signs that help with personal care i needed. A lack of unexpired, edible food in the refrigerator and cabinets will prevent proper nutrition, which leads to physical decline. While elders often eat less as they age, excuses such as I’m not hungry, I really only want canned food, etc. often indicate that food preparation is an issue. Hygiene changes may indicate unaddressed incontinence or difficulty bathing, laundering clothes and toileting.
The California Probate Code imposes on a trustee the duty to “keep the beneficiaries of the trust reasonably informed of the trust and its administration.” While the Probate Code specifically requires a trustee to provide certain types of information to the beneficiaries at certain times, it does not include any definition of the phrase “reasonably informed of the trust and its administration.”
In many cases, the more information a trustee provides the better. A trustee is likely to encounter problems with beneficiaries who feel like they are being kept in the dark. The best way to avoid that is to be as open and forthcoming with information as possible. Even where the Probate Code does not require it, the beneficiaries will likely appreciate being informed of any significant actions the trustee plans to take, such as selling or distributing any trust property of significant monetary or sentimental value. On the other hand, it may be more efficient for a trustee to inform the beneficiaries of more routine actions through periodic updates, rather than individual notifications of each and every action taken. The important thing for a trustee to remember is that the beneficiaries have a right to request “information”; therefore, answering questions from beneficiaries is an important trustee responsibility under current California law.
Conservatorships involve a number of steps that can be difficult to manage without experience. There are many different forms that must be completed and filed with the Court to request appointment of a conservator, as well as deadlines that must be met and procedural steps to follow. There are state laws that apply in conservatorship proceedings, contained in the California Probate Code, and there are also local rules which vary from county to county. Many local rules dictate the procedural steps and timeline that must be followed. A conservatorship attorney will be able to help you navigate the process and people involved, such as the Court Investigations Unit, Probate Examiner and ultimately the Superior Court Judge who hears your case. It is his or her job to make sure that you do everything in the correct manner to achieve the best possible outcome.
If you are seeking to have yourself appointed as the conservator, the conservatorship attorney will also help you understand the responsibilities that you will have as a conservator and the rules that you will be required to follow once appointed. Conservators have ongoing requirements to provide information to the Court and to certain individuals. A conservatorship attorney is in the best position to help you keep track of and fulfill these requirements.
The conservatorship attorney can also help you address any concerns of family members, friends or others who might disagree with your decisions or actions. Sometimes the role of conservator can feel like it has a public relations aspect. When communication is planned thoughtfully with the help of your attorney, it can go a long way to keeping all family members, case coordinators, Court Investigators and other interested parties happy with your efforts.
Conservatorship is a Court-supervised process through which an individual obtains the authority to manage the personal care and/or finances of another individual who lacks capacity to handle those matters for himself or herself. The conservator is appointed by the Court, and is required to periodically account for the use of conservatorship funds. The conservator must also obtain Court authorization before taking certain actions.
General probate conservatorship is commonly used in the cases of individuals who have suffered a head injury or stroke, or who have dementia. In addition to general probate conservatorship, there are two special types of conservatorship: limited conservatorship and LPS conservatorship.
Limited conservatorship works similarly to general probate conservatorship, but is used specifically in the case of an individual with developmental disabilities. The authority of the limited conservator is specifically tailored to minimize the restrictions placed on the limited conservatee, recognizing that the developmentally disabled individual may have greater capacity than an individual who would require a general probate conservatorship.
LPS conservatorship is used specifically in the case of individuals who lack capacity due to mental health issues, to the point of posing a danger to himself or herself, or others. This type of conservatorship can allow the conservator to have the mentally ill conservatee committed to a mental health facility, or to force them to take psychiatric medication.
All types of conservatorship are Court supervised, and the conservator can be a family member or friend of the conservatee, or a private professional fiduciary. In cases where there is no family member able or willing to act as conservator, and insufficient funds to a pay a private professional fiduciary, a county official called the Public Guardian can be appointed.