ATTORNEYS FOR CONSERVATORS & GUARDIANS

What is a conservatorship?

When a person becomes unable to competently make their own decisions for any reason, the courts may need to appoint someone else to do it for them. This person is called a conservator. Sometimes called an “adult guardianship,” a conservatorship refers to the legal relationship between the conservator and the person they are acting on behalf of, called the conservatee (or sometimes “the ward”).

California State Probate Code §1801(b) states: 

“A conservator of the estate may be appointed for a person who is substantially unable to manage his or her own financial resources or resist fraud or undue influence. . . . Substantial inability may not be proved solely by isolated incidents of negligence or improvidence.”

Some conservatorships are voluntary, meaning that the conservatee understands and agrees to the arrangement, believing it to be in their own best interest. More often, though, the conservatee is either unable to give consent or unwilling to cooperate, and it becomes necessary for family, friends, or government agencies to petition for conservatorship in court and to litigate the conservatorship petition. 

Common situations requiring the establishment of conservatorships are when an individual is in a coma, has had a stroke, suffers from advanced Alzheimer’s, dementia, or mental illness, or is otherwise being taken advantage of, financially, physically, emotionally, or otherwise.

What is a financial conservatorship?

A financial conservatorship is a legal relationship in which a court appoints someone to manage the finances of someone else who is incapable of doing so. When a financial conservator has been appointed to manage another’s assets and property, they are called a “conservator of the estate.” This may be a different individual than the “conservator of the person,” who is appointed to make personal and health care decisions for the conservatee. Often, a single individual is appointed to act in both capacities.  

Financial conservators have relatively broad powers and direct access to valuable resources. Once appointed, they have a duty to manage all of the conservatee’s financial assets — including bank accounts, real estate, government benefits, investments, etc. Though it usually requires a separate petition in court, financial conservators may even have the power to sell property or cash out other assets, claiming the proceeds are needed to pay for healthcare or other essential expenses. Obviously, these are major decisions that have a huge impact on the conservatee, and potentially his or her intended beneficiaries. 

In any case, a financial conservator is legally obligated to act in the best interest of the conservatee at all times. If you suspect a conservator of violating this duty, consult an experienced probate litigation attorney or conservatorship lawyer near you to see if you have legal recourse.   

Can a conservatorship be contested?

Yes, you can contest a conservatorship. A frequent example is siblings disagreeing over the best course of action in the care of an elderly parent. Perhaps mom has dementia, and one sibling wishes to sell her home and move her into a facility, while another wishes to retain the home and provide for at-home assistance. In some cases, both siblings may petition for conservatorship, battling it out in court for ultimate decision-making power.

A conservatorship may also be contested for the simple reason that it is no longer applicable. Perhaps the conservatorship was necessary at some point in the past, when the conservatee was ill or injured, but now they have recovered or regained their full faculties, rendering them capable of making their own decisions again.

In other cases, a conservatorship is challenged for more insidious reasons. Given their privileged access and authority over assets, it is not hard to imagine how less ethical persons, sometimes even the conservator, might steal or misappropriate funds, inflate the cost of claimed expenses and pocket the difference, or otherwise engage in self-serving practices. While courts create and oversee conservatorships, conservators can and do take advantage during the intervening supervisory check-ins. It is therefore often incumbent upon family members, friends, and loved ones to ensure that a conservator is not abusing their position.

Who can contest a conservatorship?

Virtually anyone may contest a conservatorship if they have an interest in the incapacitated conservatee’s personal welfare or estate assets — including the proposed conservatee. Family members, friends, or even business associates are common contestants, as are designated beneficiaries in the conservatee’s will or trust. 

In any case, it is usually preferable to contest a conservatorship while it is still pending in the petitioning stages of the conservatorship case process. But never assume that you don’t have a legal leg to stand on simply because a conservator has already been appointed. Sadly, conservators are prone to all manner of abuses and lack of due care in these situations. Keep in mind that the court itself appoints conservators, so they tend not to look kindly upon those who have clearly violated their trust.

It may be helpful to review CRC Rule 7.1059: “Standards of conduct for the conservator of the estate.” If the conservator you are challenging has failed to live up to any of these standards, contact a conservatorship attorney near you right away. 

How do I contest a conservatorship and win? 

To contest a conservatorship and win, you need to find a conservatorship attorney with a proven track record in your applicable court. At RMO, we have a proven track record in contested conservatorship cases, because experience has taught us what kinds of evidence and arguments are effective in court. 

Whether you work with us or another of the best conservatorship attorneys near you, be sure to ask if they have experience winning conservatorship cases similar to yours. The first step is always to make sure you select the right representation. The right lawyer can be the variable that makes or breaks your case. That said, you may be more likely to win your case if the following are true:

• If the conservatee is able and willing to testify in support of your position. The law protects a conservatee’s right to represent their own interests in court to the extent they are capable; even if a conservator has already been appointed. 
• If you can show any suspicious financial activity in the conservator’s accounting, or find supporting witnesses to attest to a conservator’s fiduciary offenses. 
• If a rival conservator’s petition has not been granted yet, and your competing petition takes precedence under California law, you will have a better chance of succeeding.  Spouses and domestic partners are generally given preference, followed by adult children, adult siblings, and/or any other blood relatives.  Please note, however, that the court is always going to appoint the person who will serve the conservatee’s interest, regardless of priority for appointment.

What are the steps of contesting a conservatorship?

Note that you may object to either the need for the conservatorship, or to a particular person being appointed as conservator. You may also object to an existing conservator continuing to serve as such. 

If you want to block someone else’s petition for conservatorship, you should first consult with a conservatorship litigation attorney and file the appropriate papers with your court. You must also inform all interested parties — the petitioning conservator, the proposed conservatee, family members, and potentially close friends or business colleagues. Your attorney will make sure that proper notice is given to all parties in a timely manner, in accordance with your state’s laws. 

You will then likely need to attend a legal hearing, where the judge will hear evidence pertaining to the proposed conservatee’s incompetence or lack of mental capacity. If, after hearing this evidence, the judge concludes that a conservatorship is indeed necessary, the judge will likely appoint a conservator in the same hearing. The judge’s decision will be based on state laws mandating who gets priority as a conservator. In California, the conservatee’s spouse or domestic partner is generally preferred, followed by any adult children or adult siblings. After that, any other blood relatives are still the most likely candidates, but in special circumstances, judges may grant conservatorship to an interested party who is not a family member. 

If no one to whom the conservatee is familiar is deemed suitable to serve as conservator, the judge may in rare cases appoint a public or other professional conservator, most often a private professional fiduciary.

If a conservator has already been appointed, the conservatorship may still be contested during regular public hearings involving the review of conservatorship reports and independent reports concerning the conservatee. 

Contesting a Limited Conservatorship

Limited conservatorships are generally applied when a person has a developmental disability and only needs help managing certain areas of their lives. Therefore, if someone is petitioning to be a limited conservator, he or she is only seeking the authority to perform certain duties on behalf of the conservatee. If appointed, the limited conservator will have the power to take care of only those aspects of the conservatee’s life specified by the court order. The conservatee retains all other legal and civil rights.

Limited conservatorships are often contested by a conservatee or other interested parties when a limited conservator oversteps his or her specified powers. A limited conservator must never infringe upon the personal autonomy or freedoms retained by the conservatee with respect to the areas of their lives they remain capable of managing on their own.  

Contesting a Conservatorship Report

Contesting a conservatorship report can be one of the most effective ways to prove that an existing conservator is unfit for or abusing their position. While it is usually preferable to contest a conservatorship in the initial petitioning stages, conservatorship reports may provide a concrete evidentiary basis to contest a conservatorship even after one has already been established.

In California, all conservators must file conservatorship reports with the Court one year after being appointed, and every two years thereafter. Such reports must include a full accounting of assets, detailing all income collected and all expenditures paid out on behalf of the conservatee. After the conservatorship report is filed, it is reviewed by a probate examiner. 

Aspects of a conservatorship report are public record. Thus, if you suspect a conservator of embezzling or commingling funds, making inappropriate gifts from estate funds, making risky investment decisions, selling off property intended for a beneficiary without notice, or profiting from any potential conflict of interest, try to obtain a copy of all conservatorship reports filed with your court. They may show discrepancies or unaccounted-for monies that will help you prove your case.     

What is a contested conservatorship?

A contested conservatorship occurs when one party legally disputes the appointment of a conservator or a conservator’s powers to make financial, medical, or personal decisions on behalf of an incapacitated person. A contested conservatorship may sometimes be referred to as a “contested guardianship,” but in both cases, the issue is the same — either no conservatorship is need or the person who has been entrusted to manage someone else’s assets, medical decisions, or personal interests is failing to fulfill or abusing their obligations.

Contested conservatorships are inevitably complex and usually emotionally-charged. It is often family members or closely associated parties who suddenly find themselves in an uncomfortable, adversarial position. However, with the help of competent and tactful counsel, personal conflict can be kept to a minimum while a contested conservatorship is being resolved. 

When should I contact a conservatorship attorney?

You should contact a conservatorship attorney near you if:

• You want to act as a conservator for an incapacitated loved one.
• You want to prevent another party from acting as a conservator for an incapacitated loved one.
• You want to nullify, revoke, or suspend an existing conservatorship because it is no longer necessary or appropriate — or you believe it never was in the first place. 
• You believe a conservator for a loved one is acting in an unethical or self-serving manner.
• You believe a conservator for a loved one is negligent, incompetent, or failing to perform.
• You are a would-be conservator competing against another party for the position. 
• You are an existing conservator defending yourself against legal action by another party.

Do I need a trust litigation attorney near me?

We recommend finding an experienced conservatorship attorney familiar with the county probate court in the county where the conservatorship was established. For example, if the conservator lives in Miami, Florida, yet the conservatorship was established in Los Angeles, California, we recommend working with a probate lawyer in Los Angeles. A Los Angeles probate lawyer will generally be more familiar with the Los Angeles Superior Court Probate Division, versus an out-of-state attorney.