If you’ve recently become a caregiver for an incapacitated family member or for a minor child, you’re probably wondering about what legal protections you have to take care of that person and what steps you need to take to have that legal protection.
In the state of California, you have two options to become the legal guardian and caregiver of a person or their estate: a conservatorship and a guardianship.
It’s important to understand the differences between these two forms of legal protection to know which one is right for your family’s situation.
What is a Conservatorship?
A conservatorship is a court process that grants legal rights and protections to a person to provide personal care and financial management for another adult. A conservatorship is always used when the conservatee, the person needing care, is an adult.
A conservatorship can grant another person the right to provide personal care or to manage their finances, or both. The judge will decide based on evidence which rights will be granted, based on the condition of the conservatee.
A conservatorship is often used when an adult becomes physically or mentally incapacitated and unable to care for themselves or make their own financial decisions. A conservatorship can be granted on a temporary basis and revoked if the conservatee regains their capacity to manage their own affairs.
Who is a Conservatorship For?
A conservatorship is specifically for an adult who is either physically or mentally incapacitated and cannot manage their finances or personal life (health, education, food, shelter, etc.). The conservator is the person granted the legal right to make legal decisions for the conservatee.
If your family member has become physically or mentally incapacitated for any reason, even if only temporarily, a conservatorship is the right step for your family.
What is a Guardianship?
In comparison to a conservatorship, a guardianship is for minors or children. If you are not the parent of a child but need to gain the legal right to take care of them, you need to seek a guardianship. In many states other than California, they call what we call a Conservatorship, a Guardianship.
Similarly to a conservatorship, a guardianship can grant the guardian or caregiving adult the right to manage the child’s personal affairs or their estate or both, depending upon the situation.
Who is a Guardianship For?
A guardianship is specifically for an adult who is seeking to take care of a child whose parents are deceased, incapacitated, or unable to provide adequate care to a child. A legal guardian doesn’t have to be a family member of the child, but often is.
If you don’t think that a guardianship is right for your situation, you can consider other alternatives such as a private agreement between you and the parents of the child, or a Caregiver’s Authorization Affidavit. The Caregiver’s Authorization Affidavit gives someone other than the child’s parent the right to enroll the child in school and seek medical treatment for the child. Both of these options can be revoked by the child’s parent at any time.
After appointment, a guardian assumes the role of caregiver to the child. They’re legally responsible for all of the child’s needs. In some situations, the guardian will also be responsible for managing the child’s financial assets.
Types of Conservatorships
In the state of California, there are two types of conservatorships. You can receive court approval for a limited conservatorship or a general conservatorship.
If you’re not sure which of these options is right for your family, a conservatorship attorney can help you.
A limited conservatorship is intended for someone who is developmentally disabled. This gives the conservator certain rights to care for the conservatee. Those rights are limited so that the conservatee can live as independently as possible.
A general conservatorship is reserved for all other adults, including those needing a conservatorship due to physical injury, advanced age, a form of dementia, or any other reason they may not be able to care for themselves.
A general conservatorship can also be considered if you’re caring for someone who is highly susceptible to undue influence by others and therefore needs more protection and care. A conservatorship of the estate is the only way to restrict access to the conservatee’s accounts from everyone other than the conservator, including the conservatee.
Conservatorship Duties in California
The duties held by a conservator to care for the conservatee depend upon the type of conservatorship that’s granted as well as the rights granted by the court to the conservator.
Some conservatorships allow the conservator to manage the conservatee’s estate, finances, or personal care. Some limit the conservatorship to manage only some of those duties. Here are the potential duties a conservator might take on with a conservatorship.
Arrange for Care and Protection
One of the most important duties that a conservator takes on is to provide the right personal care and protection for the conservatee. The conservator’s main role is to make sure that the conservatee is safe. Other personal care duties might include:
- Providing meals and food
- Purchasing clothing
- Maintaining personal care and hygiene
- Arranging for house cleaning
- Organizing recreation and fun activities
Choose Conservatee’s Living Situation
Another major duty that the conservator takes on is to provide a clean and safe living situation for the conservatee. Some conservatees are able to live independently and just need to be checked on periodically. Others may need constant supervision and require full-time caregivers. If someone needs to be placed in a secure facility or memory unit, a court order is always required, otherwise, it is considered false imprisonment.
Provide Proper Health Care
When you’re caring a for a conservatee, you may also be responsible for their health care. This can include taking them to the doctor, ensuring that they take their prescribed medicine and any other health care items that come up.
Manage the Conservatee’s Estate and Assets
In some situations, a conservator will not only be in charge of a conservatee’s personal well-being but also their financial estate. If this is the case, you will be making decisions for the conservatee’s best interest in regards to their finances and assets. There are certain stipulations on how a conservator can spend a conservatee’s money so if you’re faced with this situation, you should ask for the guidance of a conservatorship attorney. To serve as Conservator of the Estate the court will require you to have bond. Most bond companies will not provide bond unless you are represented by an attorney.
Hire the Best Conservatorship Attorney in San Diego
Questions about whether a conservatorship or guardianship is right for your situation? Get a free consultation from a Kam Law Firm estate planning attorney today.