Tuesday, November 21, 2017
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Public Guardian provides Probate Conservatorship services when a conservatorship or guardianship is required and there is no one else willing or qualified to serve as conservator (Probate Code 2920).
Services provided by the Public Guardian include:
To make a referral for investigation by the Public Guardian, please complete the Public Guardian Referral Form and forward it to:
or FAX to (661) 247-8401
Conservatorship is a legal process that appoints a representative to be legally responsible for making decisions regarding the personal and/or financial needs of an individual who is declared to lack the capacity to properly provide for those needs. A conservator is answerable to the Superior Court for the manner in which he or she administers the conservatorship.
The Public Guardian is appointed by the Superior Court to act as conservator of persons who require a conservator when there is no one else who is willing or qualified to act. Legal advice is provided to the Public Guardian by Kern County Counsel.
A conservator is a person or agency appointed by the Superior Court to act in the best interest of the conservatee. The conservator may be a public agency (Public Guardian) or a private person (relative or friend of the conservatee). Priority is given to family members if they are willing and capable of serving as conservator, and if they have no conflict of interest.
One distinct advantage of a conservatorship is the direct supervision by the Superior Court. All conservators are subject to the scrutiny of the Court for the management of both the person and estate of the conservatee. The conservator must report all financial transactions to the Court. Private conservators are required to post bond based on the value of the estate.
Once the conservator has been appointed, he or she is responsible for the care of the conservatee and for safeguarding and managing the conservatee's estate (if he or she has one).
Due to the complex legalities involved with conservatorship it may be best if a private conservator is represented by his/her own attorney, but it is possible for a person to file for conservatorship on his or her own. A packet of the required forms is available at the Probate Examiner's office within the Superior Court. Many forms are also available on the internet.
After appointment the conservator must post bond and have Letters of Conservatorship issued by the Clerk of the Court. Current certified copies of Letters of Conservatorship are proof that the conservatorship is in effect.
The conservator must ascertain the status of the conservatee's estate and take physical control of personal property.
All assets must be reported to the Court by filing an Inventory and Appraisement within ninety days of appointment. The inventory also determines the amount of bond required of the private conservator and sets the initial amount for which the conservator is accountable. Real property, personal property, stocks, bonds, and non-cash items are appraised by the Probate Referee.
An accounting must be filed by the conservator with the Court one year after appointment, and periodically thereafter. The accounting must set forth the beginning balance, income, disbursements, and property on hand.
The conservator of the person has the responsibility for the conservatee's care, custody and control. The conservator determines where the conservatee lives and ensures that his/her daily needs are met. The conservator may fix the residence of a conservatee at any place within the State of California without permission. Conservatees must be placed in the least restrictive, most appropriate placement.
The conservator must provide for the maintenance and support of the conservatee. The conservatee's estate is used for this provision. The conservator may also be required to seek public assistance (Medi-Cal, Supplemental Security Income) in order to properly provide for the conservatee. The conservator is not required to use his/her own financial resources for the care of the conservatee.
The conservator, upon approval of the Superior Court, may sell real or personal property belonging to the conservatee when it is in the best interest of the estate and / or the funds are needed to provide for the care of the conservatee. The conservator may invest funds of the estate in banks or savings and loan institutions money market certificates. All other investments must be approved by the Court.
Compensation to the conservator and to his/her attorney is allowed to be paid from the estate of the conservatee. These fees must be authorized by the Court prior to being removed from the estate.
The conservator cannot be held liable for any action by a conservatee.
Generally, conservatorship does not terminate at the death or incapacity of the conservator. The death or incapacity of the conservator does not change or eliminate the conservatee's physical, mental, or other condition that originally caused the need for conservatorship. It does necessitate the prompt replacement of the conservator, which is usually initiated by the attorney of record (for the previous conservator).
The authority of the conservator, whether of the person or estate, ends upon the death of the conservatee and he/she is powerless thereafter to act as conservator of the estate (Probate Code 2631). This lack of authority prevents the conservator from completing most matters, except that the conservator may pay the expenses of the last illness.
When the conservatee dies, the conservator is responsible for the care and preservation of the conservatee's property until it is delivered to the personal representative of the conservatee's estate or otherwise lawfully disposed of.
If the size and nature of the estate qualified under Probate Code 13101, after accounting to the Court, the conservator may deliver the assets to the beneficiary/heir without the need for probate.
Probate conservatorship of the person is initiated for an individual who is unable to provide for his or her personal needs for physical health, food, clothing, or shelter. Probate conservatorship of the estate can be established for an individual who is unable to manage his or her own financial resources or resist fraud or undue influence. Conservatorship may be for the person, the estate, or both. This type of conservatorship is defined in the California Probate Code and, once established, is in effect until further Court proceedings are initiated to terminate the conservatorship. Probate conservatorship is used primarily for elderly individuals who can no longer function independently and it is frequently utilized by private attorneys to appoint family members as conservators. When there are no family members willing and qualified to serve, the Public Guardian may do so.
A probate conservatorship may be initiated by anyone. In most cases an attorney petitions the Superior Court to appoint a private individual (relative or friend) as conservator.
Where the need exists for the Public Guardian to serve as the conservator, a telephone call should be made to the Public Guardian's office to inform them of the need for assistance. An investigator will be assigned to determine the necessity of a conservatorship. If a conservatorship is required, and there is no one else willing or qualified to act, the Public Guardian staff will proceed with the initiation of the conservatorship. Public Guardian Referral Form (PDF)
The Court may appoint an attorney to represent the proposed conservatee if he/she objects to the conservatorship.
The Superior Court Conservatorship Investigator is appointed to interview the conservatee and to submit a recommendation to the Court as to the status of the proposed conservatee.
One year after the establishment of a conservatorship and biennially thereafter, the Court investigator will visit the conservatee to ascertain whether he/she wishes to petition to terminate the conservatorship, whether one is still required, and if the conservator is acting in the conservatee's best interest. An appointment will also be made to speak with the conservator and to review their records.
A probate conservator may request authority from the Court to consent to medical treatment for the conservatee when the conservatee lacks the capacity to give informed consent for medical treatment.
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