Conservatorship (Guardianship) Litigation

California Conservatorship (aka Guardianship) Litigation

There are cases when are adults are not able to care for their own personal needs or finances due to some type of disability, temporary incapacity, or other reasons. In these cases, another adult can be legally appointed as a temporary or permanent guardian. However, in the State of California, it is called a conservatorship. The role of guardian is referred to as a “conservator.” California conservatorship litigation frequently involves family members engaging in intense disputes with one another. Mr. Gold can help with various key areas of conservatorship litigation.

Types of Conservatorships. There are two main types of conservatorships that are authorized by the California Probate Code. An individual may have both types of conservatorships:

  1. Conservatorship of the person, where the conservatee is unable to provide properly for personal needs. The conservator’s powers may be “limited” or “unlimited.”
  2. Conservatorship of the estate, where the conservatee is “substantially unable” to manage their resources “or resist fraud or undue influence.” This type of conservator’s powers may likewise be “limited” or “unlimited.”

Determining Legal Mental Capacity. The California Probate Code provides a statutory basis for courts to determine whether a person has the legal capacity or competence to make a particular decision or perform a specific act. Probate Code Section 6100.5 addresses mental capacity to make a will.

Petition for Appointment of Conservator. In California, the proceeding is initiated by filing a detailed petition for appointment of a conservator. It may be filed by the proposed conservatee; the proposed conservatee’s spouse, domestic partner, or relative; or other “interested” persons, or government entities.

Appointment of Conservator. Should the court decide a conservator is needed, an appointment will be made, subject to various conditions and limitations that might be imposed on the conservator’s power. California law mandates the court to consider “less restrictive alternatives” to guardianship. For instance, if the individual has their assets in a trust, along with a healthcare directive and durable power of attorney in place, the court may decide against appointing a guardian.

Choice of Conservator. In cases where a conservator is deemed necessary, the court appoints one. If the proposed conservatee has “sufficient capacity . . . to form an intelligent preference,” they may nominate a person to act as conservator. Preference is often given to a capable family member who applies. If there are multiple applicants, an evidentiary hearing is held to identify the most suitable conservator. In the case of a dual conservatorship (of the person and of the estate), the conservator is ordinarily, but not necessarily, the same person. Banks or trust companies frequently serve as convervator of the estate (but never of the person).

Self-Dealing and Financial Abuse by Conservator. California law has protections in place to prevent self-dealing by conservators, with certain types of transactions requiring court approval. California conservators must also submit periodic accountings to the court. Challenges arise when conservators fail to accurately report their activities, leading to instances of self-dealing or theft from conservatorship accounts. Family members or the court can take action against improper conduct by a conservator.

Removal of California Guardian. In cases where a California conservator fails to perform adequately, the court, either independently or upon a family member’s request, may conduct a hearing to determine if the conservator should be removed. Reasons for removal of a conservator under the Probate Code include poor care of the ward, financial self-dealing, theft, inaccurate accountings, and non-compliance with court orders.

Request for Authority to Act. Conservators in California have the autonomy to manage the day-to-day care of the ward. For other actions, such as selling the ward’s real estate or entering into contracts, the conservator must obtain court permission. These actions are subject to challenge if deemed inappropriate.

Please contact me, Andrew Gold, to discuss your conservatorship litigation issues, at (650) 450-9600.

Andrew Gold, Esq.