Guardianship and Conservatorship in California
A Guardianship and a Conservatorship is a court process used to establish legal authority for an individual to be responsible for the care and support of another.
There are various reasons why someone might need a guardianship or a conservatorship. In California, a guardianship refers to the situation where the person needing the care and support is a minor. A conservatorship refers to the situation where the person needing the care and support is an adult who is incapacitated or incompetent.
In California you can have a “guardianship of the person”, which gives the guardian the responsibility to care for a minor child, or a “guardianship of the estate” which gives the authority and responsibility of handling the minor’s financial affairs. A guardianship can also be for both the person and the estate.
A conservatorship in California can either be limited or general. A “limited conservatorship” is typically when the person needing assistance is developmentally disabled and the conservatorship is limited in order to allow the disabled person as independent a life as possible. A general conservatorship is typically for any other adult who is suffering from a physical injury, advanced age, dementia, or any other condition preventing them from being able to care for themselves.
In many other states, the guardian and conservator terminology are different and can lead to some confusion. Guardianship in many states refers to a person, the “Guardian”, who is given the authority and responsibility to care for another person, the “ward”. There is commonly no distinction as to whether the ward is a minor or an adult. Also, in may other states, a conservatorship refers to those situations which requires a person, the “conservator” to handle the financial affairs of another, the “conservatee”. Other than clarifying this terminology, this article refers to guardianship and conservatorship in California.
What Are The Duties Involved?
As a guardian, you are required to assume many important duties and obligations. A legal guardian is typically given control over a minor, meaning custody and control over the minor as well as a fiduciary duty to provide for the best interests of the minor, such as providing education and healthcare. The guardian is also liable for the actions of the minor, just as their parents would be.
As a conservator, you also owe duty to act in the best interests of the conservatee, but the specific duties can vary depending on the needs of the conservatee. A conservator may assist with handling things like health care, meals, clothing, personal care, housekeeping, transportation, and anything else the conservatee may require.
Process And Cost?
The initial filing in San Diego county is $435 to petition the court to appoint a guardian or conservator. Attorney fees can be anywhere from $2,000 and up for an uncontested guardianship or conservatorship and much, much more if contested. An investigation is typically required by the court to provide a report regarding the circumstances of the guardianship or conservatorship and usually ranges from $800-$1500. A physician may also be required to provide a report as well for another $200-$500. As you can see, the cost will likely be somewhere around $5,000 and can go up from there.
Once you have finished the process to appoint a guardian or conservator, you will still incur cost and fees as the guardianship or conservatorship proceeds. If the guardian or conservator also controls the estate, they will likely be required to provide an annual accounting. The guardian or conservator may enlist help to complete these accountings requiring additional accountant or attorney fees. The guardian or conservator may also be entitled to payment for their time and effort.
There are inexpensive legal help options available to those without the financial ability to cover the costs, and fee waivers available to waive court costs. However, even when costs are minimal, the process and the duties of a guardian will require long hours and dealing with the courts.
What Are The Alternatives?
Powers of attorney can appoint someone you trust to make medical and financial decisions for you if you become disabled or incapacitated. A child may also have an individualized education plan or (IEP) to develop a specialized plan to assist a child with a disability in participating and advancing in school. An individual program plan or IPP is also a process which puts together a team to assist an individual with meeting their needs when dealing with a disability. Advance planning can save time, cost, and effort in dealing with a future disability or if someone becomes incapacitated.
If a person needs help managing their estate or money, a special needs trust can also be created in order to allow a person designated as trustee to help manage the money without intervention required by the courts. Something as simple as maintaining joint bank accounts may provide the most efficient means to assist in managing money. There is also a form called a Caregiver’s authorization affidavit which authorizes a person to enroll a minor in school and authorize medical care.
Depending on the situation there are various programs and plans to help those with a disability to meet their needs and get the help they need to live as independently as possible. San Diego county, and most if not all counties in California, provide resources specific to the needs of anyone requiring a guardianship or conservatorship.