A conservatorship is a court proceeding that is meant to protect a person who cannot care for their own person or property. In a petition for conservatorship, the petitioner asks the court to appoint a conservator to make decisions for the conservatee and in the conservatee’s best interest. The court scrutinizes the facts of the case and determines if a conservatorship is necessary and appropriate and in the best interests of the conservatee. The court retains jurisdiction over the conservatorship and periodically reviews the conservator’s actions and the conservatee’s condition until the conservatorship is terminated. Accordingly, a conservatorship is a deeply meaningful legal mechanism meant to protect and support an individual who may not be able to manage their self-care or financial affairs.

Conservatorships may be established for the person, the estate, or both.

In a conservatorship of the person, the conservator manages the personal care of another (the conservatee) who cannot properly provide for their personal needs for physical health, medical care, food, clothing, or shelter. A conservator of the person is responsible for making important, fundamental decisions about the conservatee’s day-to-day life, such as

• The location of the conservatee’s residence;
• The type of residence, e.g., a private residence, a residential care facility, or an institution, as long as it is the “least restrictive available residence to suit the conservatee’s needs” (Prob C §2352);
• Medications and medical treatments given to the conservatee; and
• Whether the conservatee may vote.

In a conservatorship of the estate, the conservator manages the conservatee’s financial affairs –  who is substantially unable to manage their own financial resources or to resist fraud or undue influence. The conservator’s primary responsibility is to conserve, manage, and use the conservatee’s assets for the benefit of both the conservatee and those whom the conservatee is obligated to support.

A few things must be recognized about Conservatorships. First, and most importantly, the conservatee loses some rights and control over their person and/or property. Second, it’s a Court proceeding – expensive and time consuming. Third, the process can be abused.

The establishment of a conservatorship shifts the responsibility for making financial and personal care decisions from the conservatee to the conservator, acting as fiduciary. The conservatee is presumed to lack capacity to contract; to sell, transfer, or convey property; to make gifts; to incur debts (except in limited circumstances); to delegate powers; to waive any rights; or to serve as a fiduciary. This significantly limits the conservatee’s ability to act on their own behalf.

Once established, the conservatorship remains within the court’s continuing jurisdiction for the remainder of the conservatee’s life, or until the conservatorship is otherwise terminated. The court must review the conservatorship periodically to protect the conservatee and determine if the conservatorship continues to be necessary, appropriate, and in the conservatee’s best interests. The on-going proceedings generally involve considerable expense – for the attorney(s), accountants, etc. And court jurisdiction can often be frustrating while trying to get timely review through a crowded court calendar – often waiting months for a hearing date.

While abuse of the system is rare, it can and does happen. I mostly occurs where an elder is weak or incapacitated and family members seek a conservatorship. Once granted, the family member conservator can dispose of property in ways that may be contrary to the conservatee’s wishes – as expressed in a Will or Trust.

A graphically illustration of rampant abuse can be found in the 2020 Netflix film I Care A Lot. It’s a film about a professional fiduciary (played by Rosemund Pike) who is really a con artist making a living by convincing the legal system to grant her guardianship (conservatorship in California) over elders. She places her elder wards into selected assisted living facilities where they are sedated and lose all contact with the outside world. Then she sells their homes and assets, pocketing the proceeds. And all her felonious acts are rubber stamped by the court since she is the only one appearing at the key hearings (i.e., the conservatee is unrepresented) and the judge only hears her side of the story. Court approval gives her immunity and the glow of respectability.

Bottom line, conservatorships are serious and should only be undertaken with care and eyes wide open to the consequences to everyone involved.