Conservatorship & Guardianship
A conservatorship is a court proceeding where a person is given authority over another adult’s “person” (meaning their medical care, residence and other personal matters) and/or their “estate” (meaning financial matters). A guardianship is similar, except it is over the “person” or “estate” of a minor. These proceedings are supervised by the court. The duties and authority of conservators and guardians are spelled out by law. Conservators and guardians can be held personally liable for failing to act properly under the law. It is important to know and follow the legal requirements when serving as a conservator or guardian.
When a person has a trust, a power of attorney for finances and advance health care directive in place, many times a conservatorship can be avoided. Because of the strict requirements of the law and the costs involved, it is usually best to avoid a conservatorship if you can. Consultation with an estate planning attorney who practices conservatorship can help you determine your options.
Conservatorships over a person who is developmentally disabled are set up as limited conservatorships. A limited conservatorship is very similar to other conservatorships. The main difference is that in a limited conservatorship the conservator must petition for specific areas of authority over the conservatee. Also the conservator must secure habitation or treatment, training, medical and psychological services and social and vocational opportunities as are appropriate to help the conservatee develop as much self-reliance and independence as possible. There are many factors parents should consider before their developmentally disabled child becomes an adult. Advance preparation can save substantial funds and legal hassles. Therefore, we recommend consulting with an experienced attorney well before there is a need to set one up. (Also see “>Special Needs Trusts)
Lanterman-Petris-Short (LPS) Act Conservatorship
Generally LPS conservatorships are initiated for gravely disabled persons and persons who are a danger to themselves or others by emergency personnel (paramedics, hospital staff and police). A gravely disabled person is one who needs treatment but is unwilling or incapable of accepting it voluntarily. Although initiated by non family members, family members can be appointed as an LPS conservator. The rules and regulations for LPS conservatorships can be confusing and they are typically initiated in crisis situations. The focus will be on the conservatee and loved ones can find themselves confused and frustrated. A consultation with an experienced attorney can make the process less stressful and present options that may not have not been considered.
In today’s society many grandparents find themselves in the position of raising their grandchildren. A grandparent guardianship is legally the same as any other guardianship. A guardianship can be useful when the grandchild’s parent is not cooperating or is unavailable to assist with matters like school registration or obtaining health insurance. Many people begin to initiate guardianships without the assistance of an attorney because the forms are readily available at self help centers. However, there are costs associated with any court process and pitfalls that can be avoided if understood ahead of time. It is best to seek legal advice from an attorney who practices in guardianship before filing paperwork with the court.