The movie I Care a Lot has raised a lot of interest and questions surrounding Conservatorships (which in some States are referred to as “Guardianships”), as well as the role of Professional Conservators (also known as Professional Fiduciaries). The most common question being asked is: “could this really happen, and, if so, could it happen to me?”
We have compiled a list of frequently asked questions about the Conservatorship process to which California attorneys, experts in the field of California Conservatorship law and procedure in the State of California. Hopefully this information will be helpful and provide some assurance that the Conservatorship process in reality is not as depicted in the movie.
A Guardian and a Conservator are similar, but not exactly alike. In California, a “Guardian” refers to a person appointed by the Court to manage the affairs of a minor under the age of eighteen. (California Probate Code Section 1500.) A “Conservator” refers to a person who is appointed to manage the affairs of an adult eighteen and older. (California Probate Code Section 1800.3.)
A “Conservatorship” is a Court proceeding (often referred to as a “Guardianship” in other states) that is usually initiated by a family member of an individual who lacks the ability to manage his/her personal, medical, and/or financial affairs. In such a proceeding, if sufficient medical evidence is offered to establish that a Conservatorship is warranted and there is no other less restrictive alternative, the Court will appoint an individual to manage these affairs on behalf of the disadvantaged individual.
The State of California has, both through the Courts and County agencies, safeguards in place that would make what is depicted in the film I Care a Lot impossible. These protections would never allow an elderly person to be placed in a Conservatorship without notice, without the ability to object, or without any Court oversight of the Professional Conservator. Notice to the Proposed Conservatee is required, Court Investigators interview the Proposed Conservatee and the Proposed Conservatee is given the opportunity to have their own attorney.
If you have a Durable Power of Attorney and an Advance Healthcare Directive designating an Agent (also referred to as an “attorney-in-fact”) to manage your affairs if you are unable, a Conservatorship should not be necessary. The existence of a Durable Power of Attorney for financial affairs, or an Advance Healthcare Directive for healthcare and medical affairs, would be considered by the Court as a less restrictive alternative to a Conservatorship and thus, unless unusual circumstances exist, the Court would deny the appointment of a Conservator. (California Probate Code Section 1800.3(b).)
California Probate Code Section 1820(a) provides that the following people, in the following order of priority, can file a petition for the appointment of a Conservator or can nominate someone to act as Conservator:
1) The proposed Conservatee.
2) The spouse of domestic partner of the proposed Conservatee.
3) A relative of the proposed Conservatee.
4) Any interested state or local entity or agency of this state or any interested public officer or employee of this state or of a local public entity of this state.
5) Any other interested person or friend of the proposed Conservatee.
Both family members and friends may be appointed by the Court as your Conservator. In fact, you have the right to nominate someone to be your Conservator provided you have sufficient capacity. (California Probate Code Section 1810.) Often people indicate who they would prefer to have as their Conservator, should the need arise, as part of their estate planning documents. The Court will appoint your nominee as Conservator unless the Court finds that the appointment of your nominee is not in your best interest.
If you do not or cannot nominate a Conservator, and the Court determines that you need a Conservator, California Probate Code Section 1812 sets forth the priority of those who can serve as your Conservator, or can nominate a Conservator for you, as follows: (1) spouse or registered domestic partner; (2) adult child; (3) parent; (4) sibling; (5) any other person the law says is okay; or (6) the County Public Guardian. Generally, a Professional Conservator is not appointed as your Conservator unless someone from your family specifically requests it or, due to a conflict between your family members, the Court determines it would be in your best interest to have a neutral party serve as your Conservator. Ultimately, it is the Court that makes the decision who to appoint as the Conservator, and, in making the selection, the Court is to be guided by what appears to be for the best interest of the Proposed Conservatee. (California Probate Code Section 1812.)
Sometimes a Professional Conservator (also known as a Professional Fiduciary) may be the best choice. The need for a Professional Conservator might come up if there is an unresolvable conflict between your relatives or friends about who should serve as your Conservator, or there is no one able or willing to act. Perhaps your family members do not get along and it may be wise for a neutral person to serve as your Conservator to avoid further conflict. Or, due to their own life events, your relatives or friends are unable to devote the time and effort required to act as your lifelong Conservator. Your relatives and friends may not feel comfortable or have experience managing your finances and specific assets. Or they may not be able to qualify for a fiduciary bond (which is an insurance policy that protects your assets under the Conservator’s management). There are any number of circumstances that might arise that would make it preferable for the Court to appoint a Professional Conservator, who is trained and well qualified, to be your Conservator.
In California, there are two different types of Conservatorships: (1) Conservatorship of the person (for personal management and health/medical issues); and (2) Conservatorship of the estate (for asset and financial management). The criteria for establishing each is a bit different.
In order to establish a Conservatorship of the Person, the petitioner is required to prove that the Proposed Conservatee is substantially unable to provide for their physical health, clothes, food and shelter. (California Probate Code Section 1821.) The court must be convinced that the Proposed Conservatee is unable to provide for themselves due to incapacity, either because of a major neurocognitive disorder (e.g. dementia) or another reason. This proof can be provided in the form of medical testimony and other evidence. Additionally, the petitioner must demonstrate that the Conservatorship is the least restrictive alternative that would assist the Proposed Conservatee in meeting their needs. A less restrictive alternative is having an advance healthcare directive in place with an agent who is willing and able to act for the Proposed Conservatee.
In order to establish a Conservatorship of the Estate, the petitioner must prove to the court that the Proposed Conservatee is substantially unable to manage their own finances or is susceptible to undue influence. (California Probate Code Section 1821.) Again, this would usually be because the Proposed Conservatee has a major neurocognitive disorder or they are suffering from some other mental deficiency that prevents them from being able to manage their financial affairs. As with a Conservatorship of the Person, the petitioner will need to show that there is no “less restrictive alternative” such as a durable power of attorney for finances which names an agent who is able to act, or a Trust in place with a named Successor Trustee who can take over responsibility for management of assets held in a Trust.
Under California law you cannot be put under a Conservatorship without first being notified. California Probate Code Section 1824 requires that the person who is the subject of the intended Conservatorship (called the “Proposed Conservatee”) be personally served, at least 15-days in advance of the hearing, with documents informing him or her of the date, place and time of the Court hearing to discuss the need for establishing the Conservatorship. And, unless excused by the Court, the Proposed Conservatee is required to be present at the Court hearing. (California Probate Code Section 1825.) Additionally, all of the Proposed Conservatee’s relatives within the second degree must be notified, at least 15-days in advance of the hearing, of the Court hearing date and time as well. (Cal. Prob. Code § 1822.)
In California, the Probate Code requires that an investigation be conducted by a Court Investigator, and that the Court Investigator file a report with the court before a petition for a permanent Conservator can be approved (California Probate Code Section 1826).
As part of the process for establishing a conservatorship, a Court Investigator will visit with the proposed Conservatee to determine if they want to object for any reason. If the proposed Conservatee expresses a desire to contest the Conservatorship, the Court Investigator will report that to the Court and the Court will arrange for the proposed Conservatee to have their own attorney who will advocate on their behalf.
In addition to the Proposed Conservatee, under California law, anyone entitled to notice, which includes the Proposed Conservatee’s relatives within the second degree, can object to the establishment of a conservatorship.
If a Proposed Conservatee objects to the establishment of a Conservatorship, their appointed attorney is required to advise the court and advocate against the need for a Conservatorship. If the basis for the Proposed Conservatee’s objection is something other than the issue of their capacity, such as who should serve as Conservator, the court would likely make a decision after hearing from those that want to comment. But, if the Proposed Conservatee objects to the establishment of a Conservatorship because they do not believe they are unable to manage their affairs, the Proposed Conservatee would be entitled to a trial.
Conservators (whether Professional Conservators or family members or friends) cannot use the Conservatee’s assets to pay themselves unless and until the Court orders payment after a noticed Court hearing. (California Probate Code Section 2643.) All interested persons will have had a chance to review the request for Conservator’s fees and file objections for the Court to review.
Following the appointment of a Conservator of Person (management of personal/medical affairs) or a Conservator of the Estate (asset or financial management), California law provides that a Court Investigator, who is a neutral employee of the Court, shall meet with the Conservatee on an annual basis to determine if the Conservatee: (1) has any concerns with the Conservator’s actions; (2) would like an attorney appointed for him/her; or (3) would like to request the Court terminate the Conservatorship proceeding. (California Probate Code Section 1850(a)(2).) The Court Investigator similarly consults with the Conservator, the Conservatee’s caregivers, family members, etc. and includes this information in their Report which is filed with the Court. If the Court notes that the Court Investigator raised any significant concerns in the Report, the Court will schedule a hearing to address those issues.
A Conservator of the Estate, who manages the financial affairs of a Conservatee, is required to file accountings with the Court one year from the date the Conservator was appointed and no less than every two years thereafter. (California Probate Code Section 2628.) The accountings include a list of all of the Conservator’s assets under management, reflects all income the Conservator received and all expenses the Conservator paid during the accounting period. The accounting is scheduled for a Court hearing and a copy of the accounting, along with notice of the date and time of the Court hearing, is provided to the Conservatee and their relatives within the second degree. In addition to the Court’s review of the accounting, any interested party may bring to the Court’s attention any concern they might have as to what is reported in the accounting or other matters. Based on the Court’s review, and comments from interested parties, the Court has the ability to approve the accounting or to surcharge and/or remove the Conservator if the Court believes that the Conservator has mismanaged the Conservatee’s care and/or their assets or has taken an inappropriate action.
Family members absolutely have the right to complain to the court about a Conservator’s performance. There are several ways that family members can bring their concerns to the court’s attention. (1) As part of their annual review, the Court Investigator will speak to the family of a Conservatee to inquire if the family has any concerns (California Probate Code Section 1851.1). If concerns are raised, the Court Investigator will include those concerns in their Report to the Court, which the court will review and take action on as the court determines appropriate (California Probate code Section 1850). (2) In response to accountings and reports Conservators are required to file with the court, family members (and others) can bring their concerns to the court’s attention as part of the hearing on the Conservator’s accounting (California Probate Code Section 2622); or (3) family members (and others) can initiate a petition requesting that the court remove the conservator from their position as Conservator (California Probate Code Section 2651).
Unless otherwise ordered the by the Court, a Conservator’s authority does not allow them to limit the Conservatee’s personal right to receive visitors, telephone calls and personal mail. (Cal. Prob. Code § 2351.)
Though a Conservator has the authority to manage assets, pursuant to California Probate Code Section 2540 et seq., a Conservator may not sell the real or personal property of a Conservatee without specific authorization from the Court except in limited circumstances for personal property valued at less than $5,000.
California Probate Code Section 2540(b) sets the standards that must be met in order for the Court to authorize the sale of the Conservatee’s current or former home. Specifically, the sale of the personal home may only be permitted after the Conservator has discussed the sale with the Conservatee and notified the Court whether the Conservatee is in favor or opposed to the sale. The Conservator is required to describe the circumstances that necessitate the sale, including why alternatives to selling the home are not available. The sale of the home may only be authorized if the Court finds by clear and convincing evidence that the Conservator has demonstrated a compelling need to sell that is of benefit to the Conservatee.
A Conservator may not keep any of the Conservatee’s property for themselves. However, if the provisions of California Probate Code Section 2403 are met, a Conservator may purchase assets for fair market value but only after obtaining authorization to do so from the Court.
When establishing a Conservatorship in California, the Court requires that the Conservator, whether it is a family member, friend or Professional Conservator, post a bond with the Court that is issued by a bonding insurance company. A victim of a financial crime committed by a bonded Conservator can be reimbursed for the theft through payment by the bonding company. Additionally, Professional Conservators, if guilty of theft, will be stripped of their professional licenses and unable to ever work in the field.
Under certain circumstances a Conservator could move a Conservatee to a senior or locked facility but certainly not in the way depicted in the movie I Care a Lot. Specific court authority is required to move a Conservatee from their home. In order for the court to issue such an order the Conservator must prove to the Court that the move is the least restrictive alternative to address the Conservatee’s needs. As an initial matter, there is a presumption that the Conservatee’s personal residence is the least restrictive appropriate residence (California Probate Code section 2352.5(a)). The Conservator is also obligated to accommodate the Conservatee’s desires with regard to his/her residence, except if doing so could harm the Conservatee (California Probate Code section 2113).
A Conservator is not authorized to move a Conservatee to a locked (also known as “secured”) facility unless the Court first finds that: (a) the Conservatee has a major neurocognitive disorder (previously referred to as “dementia”); (b) the Conservatee lacks the capacity to consent to the move, (c) the Conservatee has deficits in his/her mental functions that impairs his/her ability to understand and appreciate the consequences of his/her actions; (d) the Conservatee needs or would benefit from the locked environment (such as due to wandering); and (e) the Court finds that the locked facility is the least restrictive placement appropriate to the Conservatee’s needs (Probate Code section 2356.5(b)).
The Conservator is responsible for moving or coordinating the Conservatee’s change of residence and does so without the aid of a police officer.
In California, Professional Conservators and Professional Fiduciaries are not exactly the same. A “Licensed Professional Fiduciary” is a term associated with individuals who are licensed by the State of California’s Department of Consumer Affairs. Such individuals may serve as Guardians, Conservators, Administrators/Executors in probate proceedings, and as Trustees of Trusts. Accordingly, all Professional Conservators are Professional Fiduciaries, but “Professional Fiduciaries” is a term which encompasses a much broader range of services.
The formal title of a professional conservator in California is a “Licensed Professional Fiduciary.” A Licensed Professional Fiduciary (“LPF”) is an individual who has been licensed by the State of California’s Department of Consumer Affairs after passing an examination. LPFs often serve as guardians, conservators, administrators / executors in probate proceedings, and as trustees of trusts either when there is no other individual willing or able to do so or when the Court believes that an individual / estate would benefit from having a neutral professional act in these capacities.
Regardless of the capacity in which an LPF is appointed, they are always monitored either by a Court, if there is a Court proceeding, or by individuals who have an interest in the assets being managed (usually family members). Discussions of the specific ways in which LPF’s are monitored by family members and the court is included with answers to some of the other FAQ’s.
Typically Professional Conservators are referred clients by worried family members, concerned friends, lawyers and the Courts. Under California’s conservatorship process, such as family having priority to act as Conservator or nominate a Conservator, Court Investigators meeting with the Proposed Conservatee and the ability of the Proposed Conservatee to be represented by an attorney, it is difficult to imagine that a referral ring, such as that depicted in the movie I Care a Lot could be reality. It would be unethical for a Professional Conservator to participate in an organized ring or pay a fee for the referral of a client. In California, such behavior would result in the Professional Conservator being removed as Conservator as well as the loss of the Professional Conservator’s license.
As both the Conservator and the physician would be risking the forfeiture of their professional licenses, it is unlikely that a Professional Conservator has a financial arrangement with a physician for client referrals.
Nationwide Professional Conservator corporations do not exist. In California individuals, not corporations, are licensed to act as Professional Conservators.
A national association of Professional Conservators (National Guardianship Association www.guardianship.org) has been established. Its purpose is to promote and improve national practice standards for individuals who provide Conservatorship services. However, as the rules for Conservators vary by State, most organizations dedicated to the promotion, improvement and education of Professional Conservators are developed at the State level.
It is unlikely that a Professional Conservator owns or has a financial relationship with a care facility. Regardless, pursuant to California Probate Code Section 2351(d), a Conservator is precluded from referring business to an entity in which the Conservator has a financial interest. To do so would be unethical and would result in the Professional Conservator being disciplined and grounds for their professional license being revoked.
In California, Professional Conservators (more commonly known as Professional Fiduciaries) are required to be licensed through the Department of Consumer Affairs. Initial licensing requirements are set forth in Section 6533 of the Business and Profession Code and include:
In order to qualify for annual license renewal, a Professional Fiduciary must have completed 15-hours of continuing education.
In California, concerns regarding the actions of a Professional Conservator (and any Professional Fiduciary) can be brought to the Court’s attention, by any interested person, at any time. In addition, concerns about the behavior of a Professional Conservator can be brought to the attention of California’s Fiduciary Bureau (part of the Department of Consumer Affairs), which is the agency that issues and oversees the issuance of licenses to Professional Fiduciaries. When deciding to whom to bring your complaint, it should be noted that while the Court has the authority to remove a Professional Conservator or surcharge them based on a determination of mismanagement, the Fiduciary Bureau’s authority is limited to taking actions concerning the status of a fiduciary’s license.
The laws concerning the establishment and continuing administration of a Conservatorship in the State of California can be found in California Probate Code Sections 1400-3925.