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Conservatorships in California

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By: Megan A. Moghtaderi, Esq. 

There has been a lot of talk of conservatorships in the news recently with the #freebritney movement. So what is a conservatorship exactly?

In California the term “conservatorship” addresses a Court proceeding wherein the Court legally adjudicates that someone lacks capacity to take care of themselves physically or financially. In this determination, the “Conservatee” is the adult adjudicated to be unable to care for themselves in some way and the “Conservator: is the adult legally responsible for the care of the Conservatee under the authority and supervision of the Court.

Each conservatorship proceeding breaks down into what we term Conservatorship of the Person and Conservatorship of the Estate. Conservatorship of the Person covers such things in daily living as food, medicine, and hygiene. Conservatorship of the Estate covers such things as paying bills, receiving state support, and signing legal documents.

There are three different types of Conservatorship proceedings in California. Namely General Conservatorship, Limited Conservatorship, and LPS Conservatorship. Each of these types are further described below, but it is important to bear in mind that for each of these three types of conservatorships that the differences between a Conservatorship of a Person and a Conservatorship of an Estate applies.

General Conservatorship

Most of the time, this is the Conservatorship we are using for when mom or dad are unable to take care of themselves, think for example of the issues with someone diagnosed with Alzheimer’s or Dementia. This is typically a cognitive impairment issue that often affects elderly people later in life. However, it is not always the case.

It can also be younger people who have been seriously impaired. The simplest way to think of this conservatorship is as the means to adjudicate the incapacity of someone if the other two types of conservatorships do not apply.

Limited Conservatorship

This is a conservatorship for developmentally disabled adults. The key distinction between this conservatorship and other type of conservatorships is that this conservatorship asks for specific abilities needed to care for someone that the Court is legally adjudicating has a lack of capacity based on a developmental disability. These are called the seven powers for a limited conservatorship and they are as follows:

  1. The right to fix residence or dwelling of the limited conservatee.
  2. The right to access confidential records and papers of the limited conservatee.
  3. To consent or withhold consent to marriage or registered domestic partnerships.
  4. The right to contract for the limited conservatee.
  5. The power to give or withhold medical consent.
  6. The power to control the limited conservatee’s social or sexual contacts.
  7. The power to make decisions concerning the education of the limited conservatee.

In determining which of these powers to request that the Court grant, it is important to bear in mind that it is a balancing effect between what limitations to place on a Conservatee and assistance they require while still trying to allow for the Conservatee to retain as much of their own autonomy in their personhood because each Conservatee has different needs.

Lanterman-Petris-Short (LPS) Act 1967- LPS Conservatorship

This is a conservatorship for those who have mental health issues which are serious mental illness and are gravel disabled- both have to apply. Under a LPS Conservatorship medication can be mandated to the Conservatee. ​It is involuntary treatment, used in particular for those who have no insight into their illness and are non-compliant with treatment and medication.

Conservatorships of this sort are only ordered by the court for adults with a mental disorder as listed in the ​Diagnostic and Statistical Manual of Mental Disorders (DSM IV) and who are gravely disabled. ​The status of gravely disabled is significant. To prove this there ​​only needs to be established fact of the lack of their ability to provide for one of the following basic needs: food, clothing, or shelter.

What is extremely important here is that private individuals, including private counsel, are not permitted at this time to file a petition for a LPS Conservatorship. Instead, this the treating psychiatrist initiates the LPS Conservatorship request with the public guardian’s office. However, packets can be compiled by private individuals in preparing and requesting the treating psychiatrist to initiate LPS Conservatorship.

In all cases, conservatorship proceedings can be quite convoluted and have high standards of reporting to the Court. Our firm is here to help and advise on what type of conservatorship is needed and provide the deft skill in the process.

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