FAQ: What Is A Conservatorship And When Is It Necessary?

What are conservatorships? In California and other states, all adults are considered capable of handling their own affairs unless a Judge determines otherwise. In California, this legal arrangement is called a conservatorship.  Conservatorships are established for impaired adults, mot often older people. Adults who are developmentally disabled or the victims of a catastrophic illness or accident may also have a conservatorship. We work with families in filing for conservatorship, opposing meritless petitions and other litigation surrounding conservatorships. We also work on the planning stage to address these issues in advance.

Conservatorship of the Person

A conservatorship of the person is a court case in which a Judge appoints a responsible person or organization (known as a conservator) to care for another adult who cannot care for him or herself (known as a conservatee). Anyone - a parent, spouse, child, other relative, or friend of the adult - can apply for a conservatorship. The two most common type of probate conservatorships are general and limited. LPS conservatorships are used to care for adults with serious mental health illnesses and they must be started by a local government agency. 

Once you are appointed conservator, it becomes your legal responsibility to provide care for the conservatee's daily needs. Therefore, it is important to consider less demanding alternatives to conservatorship. The convservatorships must be filed in the county in which the person resides.  

When Conservatorship is Necessary

Establishing a conservatorship is a formal legal proceeding and involves several steps. Some adults who are concerned about possible future mental and physical incapacity decide to establish a power of attorney or a trust, in part so they can avoid the court action. They choose an individual or an institution to make decisions for them if they become impaired. These are private arrangements and must be made while the person has full mental capacity. 

In California, courts do not routinely monitor powers of attorney or trusts. Most people do not make these arrangements probably because it is difficult to think about becoming incapacitated mentally or physically. For those who have not made prior arrangements, or if the person handling the power of attorney or trust is incapable, or a controversy arises as to their services, a conservatorship may become necessary.

After a Conservatorship is Established

Management of Wealth and Property

When a conservatorship is established, the Judge will require that a bond be obtained equal to the combined value of the liquid assets and annual income in the person's estate. Liquid assets include bank accounts and stocks. A bond is like an insurance policy. If the conservator mishandles the money or takes it, the person in conservatorship can be reimbursed.

The Judge also schedules the case for Court monitoring of the finances and property of the person in conservatorship as well as his or her welfare. The law requires that an Inventory and Appraisal of all assets be filed within 90 days of the appointment of the conservator. The conservator must also file a General Plan for the conservatorship. If the conservatee has any real property, the conservator must record evidence of the conservatorship with The Recorder of the City and County of San Francisco.

One Year Review

One year after the appointment of the conservator and every two years thereafter, an accounting of the assets, including the income and the expenditures must be filed with the Court. The accounting is reviewed in detail by a probate examiner. An investigator personally interviews the individual in conservatorship periodically and determines if the conservator is acting properly.

Non-Family Conservators

There are times when family members are unavailable or incapable of serving as conservators. Occasionally, the person who is thought to need a conservator does not want a family member to be the conservator. In those situations, there are agencies and individuals that can serve. The Public Guardian is an agency of the City and County of San Francisco and is the conservator in the largest number of non-family cases. There are also non-profit agencies that have complied with the law and can be appointed to serve as conservators. In addition there are individuals who are available to serve. They are called private professional conservators. As of July 1, 2008, they must be licensed by the State of California and meet ongoing educational requirements. All professional conservators are expected to keep a case and provide services even if the money runs out, especially if they have been appointed to serve as conservator of the person.

All conservators and attorneys in a conservatorship case are entitled to request the Court for fees for their work. The fees are carefully reviewed and granted by the Probate Court only if they have been properly justified. Conservators and attorneys cannot take money without a formal court order.

Those Most in Need of Conservatorship

Conservatorships affect mainly older people, especially those over 85 years of age. Coincidentally, the fastest growing age group in the United States is the one over 85 years of age. In California, that age group will increase by 143 percent between 1990 and 2020. Some counties will experience even higher rates, up to 400 percent. The influence of the 85 and older age group will emerge most strongly between 2030 and 2040 as the first of the baby boomers reaches 85 years of age (http://www.aging.ca.gov).

With the right genes, healthy living, and luck, most people will escape being incapacitated. However, many Californians will have impairments and will need help with daily living. Most likely the number of conservatorships will increase over time. Fortunately, the California legislature has mandated many court safeguards for those who need conservatorships.

Posted by Henry (Hank) J. Moravec, III, a partner at Moravec, Varga and Mooney, A Partnership. For a free 30 minute consultation (telephonic or in person), you can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210 or (818) 769-4221.
The firm website is http://www.moravecslaw.com/. The firm has two offices and consultations and meetings can be held at either office. There is ample free parking adjacent to the firm's offices.

The San Gabriel Valley office is located at 2233 Huntington Drive, Suite 17, San Marino, California 91108.

The San Fernando Valley office is located at 4605 Lankershim Boulevard, Suite 718, North Hollywood, California 91602-1878.

What Is Undue Influence In California Probate Courts?

As a law firm that focuses on probate and estate and trust litigation, we are seeing an increase in the number of allegations of undue influence in our cases. What do you do if you think a loved one is the victim of undue influence? Or what do you do if you are accused of exercising undue influence? Or what can you do to help prevent allegations of undue influence in the future?

Claims of undue influence can be difficult to understand and prove, both because of the lack of a definition in the Probate Code and because it occurs behind closed doors without witnesses. Increasingly, though, probate courts have staff such as investigators or visitors who go out and interview proposed conservatees and determine their circumstances, including the presence of apparent undue influence. Probate courts are also receiving more information from community practitioners such as Adult Protective Services social workers, physicians, and hospital discharge planners.

In California, the definition of undue influence is contained in California Civil Code §1575. This statute was enacted in 1872, a date which calls into question its application in the 21st century. Thus, probate judges in California lack probate statutory support when they must consider imposing a conservatorship on an elder who is allegedly being victimized by someone using undue influence. Additionally, we see that cases are not always handled consistently.

Complicating the picture is traditional thinking that mental capacity and undue influence are intrinsically linked. In other words, undue influence occurs only if there are deficits in mental functioning. Even though California law is clear that soundness of mind and body does not imply immunity from undue influence, the perception that undue influence cannot exist without mental deficits persists. Thus, if your loved one does not have mental deficits it may be more difficult to prove undue influence.

The first and most commonly invoked statute regarding undue influence is California Civil Code §1575, which was enacted in 1872 and is commonly cited as a definition of undue influence. The elements are:

1. The use, by one in whom a confidence is reposed by another, or who holds real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him;

2. In taking an unfair advantage of another’s weakness of mind; and

3. In taking a grossly oppressive and unfair advantage of another’s necessities or distress.

Pressure of some type is always a part of undue influence situations. In a seminal California case, Odorizzi v Bloomfield, undue influence was used against a person who was not an elder and had mental capacity. The court cited factors that indicated excessive pressure:

1. Discussion of the transaction at an unusual or inappropriate time;

2. Consummation of the transaction in an unusual place;

3. Insistent demand that the business be finished at once;

4. Extreme emphasis on the untoward consequences of the delay;

5. Use of multiple persuaders by the dominant side against a servient party; and

6. Absence of third-party advisors

More recent law is contained in California Welfare and Institutions Code §15610.30 et seq., which address financial abuse of an elder or dependent adult. In 2009, that section and others in the Welfare and Institutions Code were amended. The term u"ndue influence" was added. Section 15610.30(3) of the California Welfare and Institutions Code now states that financial abuse of an elder or dependent adult occurs when a person or entity does any of the

following:

“Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriate, obtaining, or retaining, real, or personal property of an elder or dependent adult when the elder or dependent adult lacks capacity pursuant to Probate Code §812, or by undue influence, as defined in Civil Code §1575, or both.”

Thus, undue influence is legally related to financial abuse. Section 15657.6 of the Welfare and Institutions Code—which references an elder lacking capacity (pursuant to California Probate Code §812) or being of unsound mind, but not entirely without understanding—states that a person or entity must return real or personal property if the elder or the elder’s representative demands it. Failure to do so in a timely fashion subjects the perpetrator to the same remedies available for financial abuse, namely, damages, attorney’s fees, and costs.

Although the California Probate Code does not contain a definition of undue influence, it does contain specific information as to determining deficits in mental functions in §811 and the capacity to make decisions in §812.

What do you do with this information regarding undue influence? If you or your loved one are in the planning stage, it may be wise to take steps to avoid such allegations in the future by involving an experienced attorney to guide you through the process. If you suspect undue influence, before you jump to allegations consult an attorney so you can make an objective assessment of whether you can prove your case. Probation litigation can be costly and a case should be evaluated by an objective attorney before you decide on a course of action. As our population ages, we can expect to see an increase in undue influence allegations in probate court.

Posted by Henry (Hank) J. Moravec, III, a partner at Moravec, Varga & Mooney, A Partnership. For a free 30 minute consultation (telephonic or in person), you can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210 or (818) 769-4221.

With respect to probate, Hank Moravec has over 20 years' experience as one of the best Los Angeles probate attorneys and Los Angeles probate litigation attorneys and is available should you need legal advice regarding your own or a family member's situation. For a consultation, You can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210 or (818) to request a consultation.

The firm website is http://www.moravecslaw.com/. The firm has two offices and consultations and meetings can be held at either office.

The San Gabriel Valley office is located at 2233 Huntington Drive, Suite 17, San Marino, California 91108. There is ample free parking adjacent to the firm's office.