Can You Be Power Of Attorney For Finances And Healthcare California Conservatorships

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California Conservatorships

background

definition. A conservatorship is used in California where a person cannot manage their own financial affairs or take care of themselves physically, so the Court appoints another person to manage these affairs.

Since 1981, in California you can only get a guardianship for someone under the age of 18. However, other states use the term “guardianship” for what California now calls conservatorship.

Terminology. Guardianship must be established by a court. The person who needs help is called the “conservator” and the person who is given the authority to manage financial, medical and/or other affairs for the person who needs help is the “conservator.”

Types of Conservatives. There are two basic types of guardianships, a guardianship of the person and a guardianship of the estate. Often a conservative fills both roles, but it doesn’t have to be that way.

Conservator of the Person. A conservator of the person ensures that the conservatee has adequate food, clothing, shelter, health care, social contact, and sources of enjoyment.

Conservator of the Estate. An estate conservator manages the finances of the conservancy.

An estate conservator must use the ward’s money and other assets to support (and educate, if applicable) the ward and their dependents.

If the appropriate court order is obtained, the conservator can manage not only the conservator’s personal finances, but also their business affairs.

The Process

Starting the Process. A guardianship is initiated by filing documents with the Probate Court and giving copies to the proposed conservator and their next of kin.

Obviously, this can be a painful process for the conservator, who is being forced to give up rights to manage their finances, make their own medical decisions, etc. Still, sometimes a guardianship is unavoidable.

Court Investigator. A forensic investigator should talk to the proposed conservator and others who may know something about the situation.

The Audience. A hearing date is scheduled and at the hearing the judge decides if a conservator will be appointed and, if so, who it will be.

Unless the proposed conservatee is unable to attend for medical reasons, the proposed conservatee must be present at the hearing, as the judge will often want to question them.

Be aware that someone else, usually a family member, may object to the procedure or propose a different conservator.

Inventory and Evaluation. Within 90 days from the date the judge signs the Order appointing the conservator, the conservator must submit a report to the court indicating the assets owned by the conservator.

More specifically, the conservator prepares an Inventory and Assessment form. If there are assets that are not effective, the conservator must send the Inventory and Evaluation to the probate arbitrator, who will be appointed by the Court. The arbitrator will value the non-cash items, complete the Inventory and Valuation by entering the value of those items and return it to the conservator, who must file it with the Court. The referee usually takes four to six weeks to return the form.

The estate charges a fee for the appraisal, usually 1/10 of 1% of the conservator’s total property value, with a maximum fee of $10,000. The arbitrator may also recover expenses, such as mileage, in addition.

Judicial investigations. Once a guardianship exists, the Court conducts periodic investigations to confirm that the guardianship is still necessary and that the ward is being treated appropriately.

Bonds and Periodic Accounting. If the conservator is managing the conservator’s finances (which is usually the case), the conservator must post a bond and must periodically provide itemized accounts to the Court listing all income and expenses.

Amount of the bond. The amount of the bond depends on the conservator’s assets and annual income, as well as whether a professional bond company (versus family or friends) is providing the bond.

Binding companies. Keep in mind that most bail bond companies will not post a bond unless an attorney is handling the guardianship process.

Status reports on conservation. Often, the conservator must also prepare periodic status reports that indicate what the conservator is experiencing and what the conservator is doing in relation to their duties.

cost Usually the cost of guardianship comes from the conservator’s income or other assets.

Fees and Reimbursements for Conservator.

expenses. Generally, the conservator is entitled to reimbursement for reasonable expenses incurred on behalf of the conservator, including expenses to establish the conservatorship and sometimes money spent supporting the conservatee prior to the conservatorship.

With the exception of court filing fees and bond premiums, the conservator must obtain court approval before receiving reimbursements from the conservator’s estate.

It is critical that the conservator maintains receipts and records of all expenses (and reimbursements).

The conservator is allowed to hire help as needed, for example an accountant, provided the expense is reasonable compared to the size of the conservator’s estate.

Generally, the conservator cannot be reimbursed for shipping, photocopying, mileage, or the cost of travel to court.

Compensation for Time.

It is essential that a conservator who wishes to receive compensation for his time keep a detailed written record of the time spent conservatorship, indicating the date, amount of time and work performed for each entry.

Courts often allow a family member to recover only for time spent managing the estate’s finances, and not for time spent acting as a family member (such as visiting conservator) or acting as the person’s conservator.

Courts may not allow compensation for time if little time was spent on financial matters or if the conservator failed to follow court procedures, including timely filing of accounts.

Some courts have schedules that set out the compensation a conservator can receive for their time, often a percentage of the conservator’s estate.

The conservator can only ask the Court for compensation for time after the last of both:

90 days after the Conservation Letters were issued; and when the Inventory and Appraisal is presented.

alternatives

powers Unfortunately, the process of obtaining and maintaining a conservatorship is expensive, so we strongly urge people to sign powers of attorney designating who will take care of their affairs if they become incapacitated. If the proposed protégé is mentally competent, the best approach is by far to have him sign durable powers of attorney. There are two types of powers.

Lasting power for finances. One type of power of attorney is a durable power of attorney for finances, which designates which people can manage the grantor’s financial affairs (such as paying bills) if the grantor becomes incapacitated.

Advance Health Care Directive. The other type is a durable power of attorney for health care. In California, this is now known as an advance health care directive. This is designed to allow the grantor’s designated agents to make health care decisions if the grantor is incapacitated.

agents. Often the spouse (or partner) is the principal agent, and then adult children or friends are the successor agents in the event that the principal (or subsequent) agent is unable (due to incapacity, etc.) or unwilling to act.

Medical Decisions. Often, if a person is incapacitated, medical staff will allow family members to make medical decisions if everyone agrees. It is also possible to obtain court authorization for specific medical procedures, but if authorization is needed on an ongoing basis, a guardianship may be more effective.

Representative of the beneficiaries. Most government agencies allow another person (a “representative payee”) to receive checks for the payee and spend that money on the payee’s behalf. Each agency has its own application procedures and requirements. Many agencies require the payee representative to provide them with periodic accounts.

Community Property. If one spouse becomes incapacitated, the other spouse can usually manage all of the community property they own.

This will not help if action has to be taken with respect to any separate property held by the disabled spouse.

Also, even with community property, the able-bodied spouse may not be able to roll over T-bills, sell stock, or sell or obtain loans against real estate.

Again, it is possible for the court to authorize the spouse to carry out specific transactions, but it may be easier to obtain a conservatorship if continuing authority is needed.

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