Conservatorships and Substituted Judgments | Guardianships
conservatorship is a probate court
proceeding for a living person who does not have the capacity to manage
his or her own affairs. There are two types of conservators. One is
a conservator of the estate, who handles financial matters for the conservatee.
The other is a conservator of the person, who makes decisions for the
conservatee in personal matters, such as medical care, choice of residence
and with whom they may associate.
you want to avoid a conservatorship for yourself
as you get older, and want to save your family
the expense of establishing a conservatorship,
please go to our Estate Planning page
to learn about setting up a living trust.
you are interested in establishing a conservatorship for a family member
who may no longer be able to manage his or her own affairs, read below
for further information.
Inventory and accounting to be rendered by the conservator
File the petition for approval of the accounting with the court
Petition the court to approve all actions taken by the conservator
Petition to terminate the conservatorship and, if necessary, open a
probate estate, upon the conservatees death
Longer life spans have increased the need for conservatorships as many
older people can no longer manage their own affairs, particularly if
they have had strokes or suffer from Alzheimers disease or other
forms of dementia. If a senior in this situation has not established
a trust and durable powers of attorney, it may be necessary to petition
the court to appoint a conservator.
Sometimes elderly people who carefully planned their estates many years
earlier suddenly revoke those documents when they suffer from dementia.
They may believe that their children want to steal their money and put
them away in a nursing home. They may also come under the undue influence
of friends or strangers who seek to take advantage of their diminished
mental capacity. This may result in adversarial proceedings that use
up the last of the seniors resources.
In the case of a conservatorship, the court appoints an independent
attorney from its probate volunteer panel to interview the proposed
conversatee and learn the facts. The court may also ask for a report
from a court investigator. Relying on the investigators and the
independent attorneys reports, the court decides whether a conservatorship
should be established.
Conservatorships usually become necessary when an older individual has
done no estate planning. Estate planning documents in most cases make
conservatorships unnecessary. For example, if an estate planning document
specifies a Durable Power of Attorney for financial and health care
matters, an agent will be in place to make decisions for the individual
once he or she becomes incapacitated. Please go to our Estate Planning
page for further information.
of Substituted Judgment
A substituted judgment gives the conservator the power to execute estate
planning documents on behalf of the conservatee. It allows the conservator
to establish a living trust and pour-over will for an incapacitated
individual, and to execute Powers of Attorney for health care and financial
management. If the conservatorship only concerned financial matters,
it may then be terminated because it is no longer needed.
A substituted judgment can result in significant savings for beneficiaries.
If the conservatee did no estate planning, necessitating the establishment
of a conservatorship, assets will need to be probated upon the conservatees
death at great expense to the beneficiaries. Petitioning the court to
permit the transfer of the assets into a trust while the conservatee
is still alive avoids probate and results in tremendous savings to the
estate, both in terms of attorney fees and estate tax planning relief.
For example, the trustee will be able to use up annual gift tax exclusions
and make larger gifts. Other measures, such as the formation of a family
limited partnership and use of valuation discounts, may result in substantial
tax savings to estates.
Mortensen Law Office
A guardianship is the equivalent of a
conservatorship for a minor. It is a probate court proceeding to appoint
a guardian to handle financial matters for the minor. It usually does
not involve the minors personal matters as those are determined
by parents or family courts.
For example, minors who receives a large insurance settlement may need
a guardian to manage the funds until they turn 18. The guardian renders
accountings to the court every two years. When the minor turns 18, a
petition to terminate the guardianship is filed with the court and the
individual receives the money.
Please contact us
for assistance with the following matters:
Filing petitions for conservatorships and guardianships
Establishing conservatorships and guardianships
Tax, Trust & Probate Attorneys, P.C.
22807 Lyons Avenue
Newhall, California 91321
Please click the links below to get information for your specific needs:
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What is a California Living Trust
Conservatorships and Guardianships
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