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Probate Conservatorships: What do they do?

Probate Conservatorships: What do they do?. By Aileen Kroll, JD Patients’ Rights Advocate In Santa Barbara Founder of Long Term Care Planning & Resource Center. What does it mean to be “conserved?”. Same word means very different things: Probate Conservatorship vs.

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Probate Conservatorships: What do they do?

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  1. Probate Conservatorships:What do they do? • By Aileen Kroll, JD • Patients’ Rights Advocate • In Santa Barbara • Founder of Long Term Care Planning & Resource Center

  2. What does it mean to be “conserved?” Same word means very different things: Probate Conservatorship vs. LPS Conservatorship vs. Limited Conservatorship vs. Temporary/Permanent Conservatorship

  3. LPS By professional person in charge of facility or his/her designee (W&I § 5352) Probate Anyone may petition (Probate § 1801(a)) How Initiated

  4. LPS Requires mental disorder (W&I § 5350) Probate Unable to provide for personal needs or manage financial resources (Probate § 1801(a) Statutory Requirements

  5. LPS Conservatorships • In a nutshell, LPS conservatorships may be set up to arrange placement and mental health treatment for people who are unable to provide for their food, clothing, shelter as a result of a mental disorder or chronic alcoholism. • An LPS conservatorship is used only when the person needs mental health treatment but can’t or won’t accept it voluntarily.

  6. Limited Conservatorships • Limited conservatorships may be set up for adults with developmental disabilities who cannot fully care for themselves or their property. • Developmental disabilities include mental retardation (or conditions similar to mental retardation or conditions requiring similar treatment), epilepsy, cerebral palsy or autism that began before the age of 18. • A limited conservatorship attempts to encourage further development, wherever possible. • A limited conservator’s duty is to help the limited conservatee develop maximum self-reliance and independence. • Refer to Regional Center

  7. LPS Requires Grave Disability Beyond a Reasonable Doubt (Conservatorship of Roulet (1979)23 Ced 219, 152 CR 424 Probate Clear and Convincing Evidence Probate § 1801(c) Burden of Proof

  8. LPS Right to Court/Jury Trial on Issue of Grave Disability (W&I 5350(b)(1)) Probate Right to Jury Trial on Issue of need for Conservatorship Judicial decision on specific capacities (Prob Code § 1827) Right to a Hearing

  9. LPS Not subject to list of priorities (W&I § 5350(b)(1) Probate Subject to list of priorities: spouse, adult child, parent (Prob § 1812) Who May Be Conservator

  10. LPS Placement in locked facility possible - least restrictive placement (W&I § 5358(a)(c) Probate No such right Persons with Dementia may be placed in a locked facility for the elderly (Prob § 2356.5) Placement

  11. LPS 1 year Must be renewed annually (W&I § 5361) Probate Indefinite (Prob § 1860) Duration

  12. If Probate Conservatorship of Estate exists - cannot have concurrent LPS Conservatorship of Estate If Probate Conservatorship of Person exists - LPS runs concurrently, but is superior to Probate Conservatorship of Person (W&I § 5350) Concurrent existence of Conservatorship of Person and Estate

  13. Case Study • Which type of conservatorship, if any, would best serve this woman?

  14. The Nitty-Gritties of Probate Conservatorship What is a Conservator? A person or organization chosen to protect and manage the personal care or finances of someone who has been found by a Probate Court judge to be unable to do so. Who Can Serve as a Conservator? A family member; A friend; A Private Professional Conservator; A County Agency called the Public Guardian’s office

  15. Case Study • Who Should Be the Conservator?

  16. Who Becomes a Probate Conservatee? • Many are elderly. Others are younger people with temporary or permanent physical or mental disabilities. • Typicially, a conservatee is a person who can no longer shop, cook, clean, dress or access medical care and/or can’t keep track of their money or remember to pay their bills and/or subject to exploitation.

  17. Two Types of Probate Appointment • Conservator of the Person • vs. • Conservator of the Estate

  18. Conservator of the Person • Appointed when someone needs help taking care of their daily needs. • Arranges for the conservatee’s care and protection. • Decides where the conservatee will live. • Makes arrangements for the conservatee’s health care, meals, clothing, personal care, housekeeping, transportation, recreation.

  19. Case Study • Does this person need a Conservator of the Person?

  20. Conservator of the Estate • Manages the conservatee’s finances • Locates and takes control of the conservatee’s assets • Collects income due to the conservatee • Makes a budget to show what the conservatee can afford • Pays the conservatee’s bills • Protects the conservatee’s assets

  21. Case Study • Does this person need a Conservator of the Estate, Person or both?

  22. Temporary Conservatorship • Both forms of permanent conservatorship require notice and a hearing. What if someone needs immediate help?

  23. The “How-To’s” of Temporary Conservatorship • A judge may appoint a temporary conservator of the person or estate. • A temporary conservator arranges for temporary care, protection and support of the conservatee and protects property from loss or damage. • Conservatee may not be moved without a court order. • The Letter of Temporary Conservatorship will show an exact ending date.

  24. Case Study • Does this person need a temporary conservator? • What will be accomplished?

  25. Permanent Conservatorship Process • Who initiates it? • Family • Friends • Neighbors • APS • Hospitals • Anyone!

  26. What are the signs that a Probate Conservatorship may be needed? • Self-neglect • Neglect by Caregivers • Abuse • Exploitation • Dementia/Head Injury but not Mental Illness! • Have less restrictive approaches been exhausted? • Is the behavior a way of life?

  27. The Conservatorship Process • The packet • The MD • Who is seeking to be the conservator? Is it contested? • Is the conservatorship voluntary or involuntary? • Attorney? • Role of Court Investigator

  28. So, you’ve been appointed Conservator . . . • Obtain Letters of Conservatorship (court certified) • Obtain a bond if you’ve been appointed Conservator of the Estate (sometimes waived) • Provide accounting to the Court (if Conservator of the Estate)

  29. Rights Retained by All Conservatees • Right to be treated with respect • Right to have wishes considered • Right to ask questions and express concerns re conservatorship

  30. Rights Usually Retained by Conservatees • The right to: • Marry • Make or change a will • Receive personal mail • Be represented by a lawyer • Ask a judge to change conservators • Ask a judge to end the conservatorship • Vote

  31. Changing Conservators orEnding the Conservatorship • The responsibilities of a conservator ends when: • A judge determines that the conservatee no longer needs to be conserved; • The conservator’s appointment is withdrawn by a judge (or the conservator resigns or dies) and someone else is appointed; • The conservatee dies

  32. Problems/Issues/Concerns re Conservator • Abuse by Conservator • Neglect by Conservator • Exploitation by Conservator • Wrong Conservator? • Out-of-State appointment • Attorney • Personality issues

  33. Problems/Issues/Concerns for Conservatee • “What do you mean I’m conserved?” • “I don’t want to live here” • “I don’t want medical care” • “Who are you to tell me what I can and cannot do?”

  34. In Conclusion . . . • Probate Conservatorship, when in capable, caring, knowledgeable hands, can greatly improve the lives of persons no longer able to manage their daily affairs. . It DOES NOT take the place of an LPS Conservatorship, which often leads to great frustration for family members

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