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Posts Tagged ‘conservatorship’

Trustee’s Duty to Inform

Rachael Phillips
August 27, 2014

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.

Why Does Someone Need a Conservatorship Attorney?

Rachael Phillips
August 21, 2014

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.

What is a Conservatorship?

Rachael Phillips
June 18, 2014

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.