The conservatorship of Britney Spears has certainly stirred a great deal of media interest in what generally exists as a behind-the-scenes world of lawyers, judges, and well-meaning people trying to help individuals in need of care or assistance with their healthcare and financial affairs. Lost in the media frenzy over the pop superstar’s father being relieved of his duties as conservator for his daughter are the legal issues that everyday people run into when a parent, family member, or loved one can no longer care for themselves.
What is a conservatorship?
A conservatorship is a legal proceeding designed to protect a person who can no longer make decisions regarding their person or property. The person needing care or assistance is a conservatee, and the person or professional fiduciary providing it is the conservator.
Establishing a conservatorship requires filing a formal petition under the California Probate Code with the superior court. The petition asks the court to appoint the petitioner as conservator. Depending on the relief sought in the petition, if the court determines that a conservatorship is necessary and appropriate to protect the proposed conservatee, the petitioner will be appointed as conservator of the conservatee’s person, estate, or both.
Conservators perform their duties under the supervision of the court that monitors them to ensure the conservatee receives proper care and that their finances are properly handled.
Options available to a court in conservatorship proceedings
Conservator of the Person:
- The appointment of a conservator of the person is appropriate when it is shown by clear and convincing evidence that a proposed conservatee cannot attend to their personal needs, such as health, food, clothing, and shelter.
Conservator of the Estate:
- The appointment of a conservator of the estate is appropriate when it is shown by clear and convincing evidence that the proposed conservatee is unable to manage their finances or be, as determined by a judge, susceptible to fraud or undue influence with regard to financial resources. Conservators of the estate have the authority to oversee the conservatee’s finances, but that authority does not extend to the individual’s personal care.
Conservator of the Person and Estate:
- Frequently a petition will be filed because a proposed conservatee cannot take care of their person and finances. The appointment of a conservator of both the person and the estate is typical when the proposed conservatee suffers from dementia or some other malady that causes the loss of their ability to understand, reason, use abstract concepts, or think logically.
Appointing a conservator is much easier when the proposed conservatee acknowledges the need for help and agrees to the appointment of a conservator. However, a person may lack the capacity to understand the nature of the court proceedings and consent to the appointment of a conservator. Sometimes a proposed conservatee may oppose the appointment of a conservator and contest the proceedings, which can result in litigation and even a trial.
When considering whether to file a petition for a conservatorship on behalf of a parent or loved one, individuals should proceed with caution or risk being stuck with a bill for attorney’s fees. An award of legal fees may not be forthcoming unless the court grants the conservatorship.
Be Wary of Probate Code 2640.1
California courts have authority under Probate Code §2640.1 to award legal fees and reimburse costs to the attorney for the petitioner in a conservatorship proceeding. However, the statute does not permit an award of legal fees and costs in situations that do not appoint a permanent or temporary conservator.
A cursory reading of the statute may lead to confusion and result in a good faith effort to help someone resulting in an unsuccessful petitioner forced to pay legal fees and costs rather than having them paid from the assets of the conservatee. The confusion may be due to language in the statute allowing for an award of attorney’s fees and costs to an unsuccessful petitioner in a situation where a court granted the petition of another party.
The courts have now clarified that a petitioner cannot recover attorneys’ fees and costs unless a permanent or temporary conservator is granted. When multiple petitions are filed seeking the appointment of a conservator, the law permits the court to award legal fees and costs to an unsuccessful petitioner as long as the petition was filed in the conservatee’s best interests and a conservator was appointed.
Alternatives to a Conservatorship
Conservatorships can be very expensive, and oftentimes the need for a conservatorship can be eliminated with an effective estate plan. For example, Powers of Attorney and Advanced Health Care Directives allow individuals to nominate others to make decisions for them related to their finances and healthcare in the event they become incapacitated. Powers of Attorney and Advanced Health Care Directives are an effective “least restrictive alternative” than a conservatorship.
Get Sound Legal Advice About Conservatorships
If you believe someone in your family may need help with their finances or personal care, have one of the experienced attorneys at NM Law review the situation. Powers of attorney and other alternatives to the appointment of a conservator may be available options to consider or, if a conservatorship is appropriate, they can provide skilled representation for you. Contact them today to schedule a consultation by calling 949-253-0000.