If your family has a loved one with a developmental disability you might be in need of a limited conservatorship so you can make decisions for them.
Setting up a limited conservatorship can be a confusing process. That’s why we put together this step-by-step guide to help you understand the process and make it less stressful.
What Is a Limited Conservatorship?
A limited conservatorship is a legal decision-making authority awarded to a person who is caring for another adult who has a developmental disability. The adult awarded rights to care for another is called a limited conservator. The person they care for, who has a developmental disability, is a limited conservatee.
Part of the court’s role in awarding a limited conservatorship is deciding whether or not the person being cared for qualifies as a person with a developmental disability and whether or not the person seeking appointment as the conservator is qualified.
A limited conservatorship can award the limited conservator the right to make personal and/or financial decisions for the limited conservatee.
The Differences Between a Conservatorship and a Guardianship
This can be tricky. A guardianship is for people under the age of eighteen, and a conservatorship is for people eighteen and older. However, states other than California, often call a conservatorship a guardianship. Therefore, if you’re interested in caring for an adult in your family in the state of California, you have the option of a conservatorship. A guardianship is different than a conservatorship and it’s important to understand the differences and when you might need both.
A guardianship allows you to make healthcare and other non-monetary decisions for a loved one with an illness, injury, or disability.
In comparison, a conservatorship allows you to make financial decisions for a loved one with a developmental disability.
To fully care for your loved one, you might need both a conservatorship and a guardianship. The two combined would allow you to make healthcare, financial, and non-financial decisions for that person.
If you don’t need to make financial decisions for the person but do need to make healthcare decisions, then you may only need a guardianship.
Understanding The Role of a Conservator
The role of the conservator is to make personal decisions for the conservatee. Sometimes it can include making financial decisions if the individual has assets, but often the limited conservatorships are of the person only. The court will decide exactly which decisions a conservator can make at the hearing.
There are 7 powers the proposed conservator can request over the proposed conservatee. If granted, the court essentially takes these powers away from the limited conservatee and grants them to the conservator.:
- To fix the residence or specific dwelling place of the proposed Conservatee.
- To gain access to and limit access to the confidential records and papers of the proposed Conservatee.
- To control the right of the proposed Conservatee to contract.
- To give or withhold medical consent.
- To consent or withhold consent to the marriage of the limited Conservatee.
- To make all decisions concerning the education and training of the proposed Conservatee.
- To control the proposed Conservatee’s social and sexual contacts and relationships.
How to Establish a Limited Conservatorship Step-by-Step
Establishing a limited conservatorship requires many different steps and a court hearing.
There’s a step-by-step process that we follow at Kam Law Firm and it’s the process I recommend to all of our clients.
Step 1: Find a good conservatorship attorney
The first step you take in establishing a limited conservatorship is to find a conservatorship attorney who can help you navigate this complicated and confusing process.
There’s a lot of paperwork to be filled out and you will have to go to court at least once, if not multiple times. Having a conservatorship attorney by your side can make the process more comfortable and less stressful than navigating it by yourself.
Step 2: Decide the type of conservatorship
There a few types of conservatorships. Before you get started, it’s important to decide which one is right for your family.
These are the most common types of conservatorship:
- Limited conservatorship
- Temporary conservatorship (for emergencies)
- General conservatorship (if the proposed conservatee is so disabled that a limited conservatorship would be inadequate)
Once you know which type of conservatorship is right for your family, you can move on to the next step. If you’re not sure which is the correct type of conservatorship, a conservatorship attorney can help you decide.
Step 3: Fill out your forms
There are lots of forms that must be filled out and submitted to the court before you can move forward with your application for a conservatorship for your family.
Those forms include:
- GC-310 Petition for Appointment of Probate Conservator
- GC-020 Notice of Hearing
- GC-312 Confidential Supplemental Information
- GC-320 Citation for Conservatorship
- GC-348 Duties of Conservator
- GC-314 Confidential Conservator Screening
- GC-340 Order Appointing Conservator
- GC-350 Letters of Conservatorship
- GC-335 Capacity Declaration
- GC-320 Citation for Conservatorship
- Local Forms (depending on which county you are filing)
Step 4: Get your hearing date and case number
Once you have filed all of your forms to apply for a conservatorship, the clerk will give you a date and time for your conservatorship hearing.
If your situation is urgent, you can also apply for a temporary conservatorship. This allows you to become a conservator on a temporary basis and in an emergency, pending the initial hearing. You must request a permanent appointment simultaneously with your request for a temporary.
These are the additional forms you need to fill out for a temporary conservatorship:
- GC-110 Petition for Appointment of Temporary Conservator
- GC-140 Order Appointing Temporary Conservator
- GC-150 Letters of Temporary Conservatorship
Step 5: File your forms
Your next step is to file your completed forms. Before you submit your forms to the court, make sure that you make two copies so that you retain a copy for your records.
Step 6: Get a Conformed Copy
The other reason it’s important to make two copies of your forms is that when you submit the copies to the clerk, she will stamp the originals and both copies as filed. Without those stamps and copies, you may face issues later on if the court loses one of your documents (it happens more often than you would think).
Step 7: Court Appointed Attorney
During your court hearing, the person who might become the conservatee must be present. The potential conservatee will meet with a court-appointed attorney prior to the hearing. This court-appointed attorney will explain to them what is going on and will advocate for their position. The court-appointed attorney must advocate for their position even if they know it isn’t in their best interest.
Step 8: Probate Examiner Notes
These notes are created by the probate examiner and will summarize your petition for a conservatorship and will let you know if you have any defects (mistakes or missing documents). These notes will be available online prior to your conservatorship court hearing, typically about two weeks before.
Step 9: Attend the hearing
To receive a limited conservatorship you must attend the conservatorship court hearing. Unless the Capacity Declaration completed by the doctor provides that due to medical reasons the proposed conservatee cannot attend, they will have to be present in court.
Step 10: Obtain Order and Letters
Your final step in the process is to obtain the Order and Letters. Getting the final documents back can take two to three weeks depending on the court. They should be filed in advance of the hearing but you should bring extra copies with you to court.
How Much Does it Cost to Set Up a Conservatorship in California?
The cost of filing for a conservatorship will vary depending on a few factors. If you hire a conservatorship attorney, you’ll need to pay those lawyer fees. It is important to point out that while lawyer fees may seem like an extra expense, it will definitely save you time and emotional energy in the long run.
The court cost to file for a conservatorship is $435. However, if the proposed conservatee has limited income, receives Medi-Cal or SSI, the fee can typically be waived but you will need to fill out specific forms and file them with the initial paperwork. You won’t get a refund after the fact.
Find the Best Conservatorship Attorney in San Diego
If you have questions about establishing a limited conservatorship you can get a free consultation with an estate planning attorney from Kam Law Firm to answer your questions.