LIMITED CONSERVATORSHIP GUIDE LOS ANGELES CALIFORNIA BY: MINA SIRKIN, ESQ. SIRKIN LAW GROUP, PC 818.340.4479 MSIRKIN@SIRKINLAW.COM Copyright 2020 Mina Sirkin
What is a Limited Conservatorship?
A California Limited Conservatorship is a court procedure that provides an adult with powers to make certain types of decisions for the benefit of a developmentally disabled adult.
Mina N. Sirkin, Esq. 818.340.4479 SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
Purpose of a Limited Conservatorship THE MAIN GOAL is that persons with developmental disabilities "receive services resulting in more independent, productive, and normal lives." Prob C ยง1801(d) TWO PURPOSES: A. Provides a Protective Proceeding; B. Encourages the limited conservatee's maximum self-reliance and independence, the law of limited conservatorships divests the limited conservatee only of those rights, and grants the limited conservator only those powers, that the limited conservatee is unable to exercise capably. Mina N. Sirkin, Esq. 818.340.4479 SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
What Rights Does the Limited Conservatee Maintain, If the Conservatorship Court Does Not Curtail Them? ◦ The right to vote if he or she has capacity to vote; ◦ The right to marry; ◦ The right to give informed consent for medical decisions (unless ordered otherwise). ◦ There is also a presumption that the conservatee has the capacity to make a will ◦ Right to control an allowance and his or her wages and enter into transactions to provide the necessaries of life. Cal Rules of Ct 7.1059(b)(16). Mina N. Sirkin, Esq. 818.340.4479. SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
What are the prerequisites to a limited conservatorship? ◦ A Capacity Declaration is needed which is completed by a physician or psychologist so we can determine if the conservatee needs the conservatorship. NOTE: Just because someone has a developmental disability, it does not presume him or her to be incompetent in California. ◦ A Limited Conservatorship can only be established for a person with a developmental disability which disability started before he or she turns 18. ◦ On the date of the conservatorship hearing, the person conserved must have already turned 18. You can file a couple of months in advance of the18th birthday of the child. Mina N. Sirkin, Esq. 818.340.4479. SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
Who can become a Limited Conservator in California? ◦ A competent adult who may be a parent, relative, spouse, a friend, a professional fiduciary, the Regional Center, Department of Developmental Services, and the Public Guardian. ◦ It is very common to have an older parent nominate a professional fiduciary as a conservator. ◦ In some counties, the Public Guardian will accept to act as a limited conservator. ◦ In Los Angeles County the Public Guardian generally declines to act as a limited conservator. ◦ The DDS and/or Regional Centers may serve as limited conservators if no person with higher priority is willing to act. Prob C §1812(b)(5). Mina N. Sirkin, Esq. 818.340.4479. SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
Why is it called a Limited Conservatorship? It is called a limited conservatorship because the court generally orders only a few specific powers, and its goal is to allow the developmentally disabled person to be able to exercise more control over his or her own life.
Mina N. Sirkin, Esq. 818.340.4479. SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
When can you file a Limited Conservatorship Petition in California? You can file a Limited Conservatorship Petition in California about 2 months before your child turns 18. However, on the date of the hearing, he or she must have already turned 18. You can filed a Limited Conservatorship anytime after the child turns 18. There are no restrictions as to when you may file, once the child has turned 18. Mina N. Sirkin, Esq. 818.340.4479. SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
What types of Limited Conservatorships are there? ◦ There are two types: A Conservatorship of the Person and a Conservatorship of the Estate. ◦ The Conservatorship of the person is most common in Limited Conservatorships and deals with the physical needs of the Conservatee plus a few other things. ◦ The Conservatorship of the estate deals with the assets of the Conservatee and sometimes used to bind the conservatee who is a party to a lawsuit, and when specifically requested, the conservator can sue on behalf of the Conservatee under this type of power. Other uses are in 1st Party Special Needs Trusts where the beneficiary is incompetent. Mina N. Sirkin, Esq. 818.340.4479. SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
Where must the Limited Conservatorship Petition be filed? ◦ Prob C § 2201 The proper county for the commencement of a guardianship or conservatorship proceeding for a resident of this state is either of the following: ◦ (a)The County of residence of the Conservatee. OR ◦ (b)Such other county as may be in the best interests of the proposed ward or proposed conservatee. There are different rules if the Conservatee is a non-resident of California. PC 2202 Mina N. Sirkin, Esq. 818.340.4479. SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
Powers that normally come with a Limited Conservatorship outside of the 7 powers? ◦ Probate Code 2351.5 states that these are the general powers a limited conservator. ◦ (a) Subject to subdivision (b): ◦ (1) The limited conservator has the care, custody, and control of the limited conservatee. ◦ (2) The limited conservator shall secure for the limited conservatee those habilitation or treatment, training, education, medical and psychological services, and social and vocational opportunity as appropriate and as will assist the limited conservatee in the development of maximum self-reliance and independence. Mina N. Sirkin, Esq. 818.340.4479. SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
Emergency Medical Powers if Conservator is Appointed But No Specific Medical Power Given ◦ If a conservator has been appointed but has not been granted medical powers, the conservator may consent to medical treatment in emergencies (Prob C §2354(c)) or may petition the court for an order authorizing specific medical treatment (Prob C §2357).
Mina N. Sirkin, Esq. 818.340.4479. SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
What are the seven powers commonly requested by a limited conservator of the person? ◦ (1) To make decisions to fix residence or specific dwelling of the limited conservatee. Fixing a residence means deciding where the conservatee lives. ◦ (2) Access to the confidential records and papers of the limited conservatee. ◦ (3) To consent or withhold consent to the marriage of, or the entrance into a registered domestic partnership by, the limited conservatee. ◦ (4) The right of the limited conservatee to contract. ◦ (5) The power of the limited conservatee to give or withhold medical consent. ◦ (6) The limited conservatee’s right to control his or her own social and sexual contacts and relationships. ◦ (7) Decisions concerning the education of the limited conservatee. Mina N. Sirkin, Esq. 818.340.4479. SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
Powers of Limited Conservator of the Estate ◦ YOU HAVE TO SPECIFICALLY ASK FOR THESE POWERS TO CONTROL THE FOLLOWING: ◦ Handle the properties of the conservatee to which the limited conservator is entitled to possession and management, described sufficiently to identify those properties; ◦ Handle debts, rentals, wages, or other claims due to the conservatee that the limited conservator is entitled to collect, possess, and manage; ◦ Obligate the Conservatee’s Estate: The contractual or other obligations that the limited conservator may incur on behalf of the conservatee; ◦ Handle the claims against the conservatee that the limited conservator may pay, compromise, or defend; and ◦ Any other powers, limitations, or duties that the court grants with respect to the care of the limited conservatee or the management of the property that the limited conservator will control. ◦ To the extent that a power is granted to a limited conservator of the estate, the provisions of the conservatorship law (Prob C §§2400–2595) governing that power in a general conservatorship apply. Prob C §2400(a). ◦ ***Credit CEB
Mina N. Sirkin, Esq. 818.340.4479. SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
How can I tell if my child needs a Limited Conservatorship? ◦ Talk to the Regional Center Case Worker ◦ Have the Physician complete the Capacity Declaration ◦ Determine if a developmental disability existed before the age of 18
Mina N. Sirkin, Esq. 818.340.4479. SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
Are there available alternatives to Limited Conservatorships? ◦ Depending on the cognitive competency level of the disabled individual, there are some alternatives, but each alternative has limitations. ◦ A Power of Attorney and an Advance Health Care Directive can be alternatives to a limited conservatorship, if the signor is competent and if the limitations and the detriments don’t matter to you. (see next page) ◦ There are times when a Representative Payee, or Regional Center, or an authorized representative designated by a regional Area Board is sufficient. Those are rare circumstances. Mina N. Sirkin, Esq. 818.340.4479. SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
Pros and Cons of a Power of Attorney and Advance Health Care Directive ◦ Both require competency in understanding the consequences of signing the power or directive. ◦ A power of attorney and Advance Health Care Directive can be revoked by the disabled person. A Conservatorship cannot end without a court order. ◦ You cannot make decisions against the wishes of the person who gives you the power of attorney. Doctors and hospitals will ask the disabled person, and without having a court order with exclusive medical decision making, they will take the words of the disabled person. ◦ There are several things that an agent in a power of attorney or Advance Health Care Directive cannot do: Commitment to or placement in a mental health treatment facility. Convulsive treatment; Psychosurgery; Sterilization; Abortion; Mercy killing; assisted suicide; ability make a will, or engage in euthanasia. Mina N. Sirkin, Esq. 818.340.4479. SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
Why are the limits on the Conservator’s powers? ◦ There are limits on the Conservator’s powers because the Court balances the civil rights of the disabled person vs. the need of the conservator to protect the disabled person. ◦ The law presumes that a person with a developmental disability is competent and wants to encourage people with disabilities to thrive. ◦ The limitations are: If the Court does not give you the specific power, you don’t have the power. If the Court does not take away the specific power of the Conservatee, he or she may still act despite the existence of the Conservatorship. So, ask for the exact powers you need, even if they go beyond the 7 powers. Mina N. Sirkin, Esq. 818.340.4479. SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
What happens at a Limited Conservatorship hearing? ◦ At the hearing, the judge may ask you some questions. The judge will want to see the conservatee unless a doctor has submitted a declaration that the conservatee cannot attend. The Court-Appointed attorney will present his or her report and ask that he/she be paid by the County. ◦ AFTER the hearing, the Court-Appointed attorney will review and sign off on the order. ◦ You, your lawyer or the conservatorship clinic then submit Letters, after the order is issued. ◦ The Court will set dates by which the conservator will have to file a Level of Care or other form, depending on the type of conservatorship. The form called Determination of Conservatee’s Appropriate Level of Care generally has to get filed with 60 days from when Letters gets issued. Mina N. Sirkin, Esq. 818.340.4479. SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
How long does it take to get a Limited Conservatorship? ◦ In Los Angeles County, it generally takes about 90 days (except in emergencies). Once we file, we get a hearing within 45-60 days and the court then sets it for a hearing at which time, if all procedural issues have been taken care of, the Court will consider the petition. ◦ In an emergency, a Temporary Limited Conservatorship may be obtained within five days, or sooner depending on the urgency. ◦ In Los Angeles County, it takes another 3-4 weeks after the hearing to get the order signed. Once the Order is signed, then you can submit your Letters of Conservatorship which is your authority to act.
Mina N. Sirkin, Esq. 818.340.4479. SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
What are the costs and fees? ◦ Cost payable to the court are as follows: $485 filing fees $650 Court Investigator’s Fees. ◦ You can ask for a court cost fee waiver, if your child is on Medi-Cal. ◦ There is a special form for conservatorship fee waiver requests submitted to the court. ◦ Attorney’s fees excluding court costs in an uncontested limited conservatorship can range $4500-$5000 in an uncontested nonemergency proceeding, depending on the case. Attorney’s fees are generally charged on an hourly basis, and if there are objections, the fees will likely exceed the above amount. Mina N. Sirkin, Esq. 818.340.4479. SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
Should I have a Co-Conservator in a Limited Conservatorship? â—Ś There are pros and cons of having a co-conservators. Logistics require two signatures on all documents where there are coconservators and only ONE decision can be made so co-conservators must agree on decisions. This can create problems if there are disagreements about any issue between the co-conservators. â—Ś If you have a co-conservator and one dies, it does not terminate the limited conservatorship. The remaining one submits a notice of death and in a paper ex parte asks for amended letters of conservatorship via a shortened procedure. Mina N. Sirkin, Esq. 818.340.4479. SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
Financial Considerations in Limited Conservatorships
◦ A Representative Payee designation is an alternative to a Conservatorship of the estate, if the only issue was Social Security. A Social Security payment is generally outside of a conservatorship, and can be handled through the Representative Payee designation form available at the Social Security Office. ◦ A 1st Party Special Needs Trust and a Pooled Special Needs Trust can be used where the disabled person has funds of his/her own, or is entitled to a settlement. Competency is an issue with 1st party special needs trusts, if it is to be created by the disabled person. ◦ A joinder to a pooled special needs trust is a contract which can be controlled by the conservator of the estate in a limited conservatorship. ◦ Lawsuits are handled by any of these: A Guardian Ad Litem, a Conservator, or an agent under a power of attorney with the specific rights to handle litigation (assuming that the disabled person has sufficient capacity to sign one). Mina N. Sirkin, Esq. 818.340.4479. SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
If you don’t conserve your developmentally disabled individual, who can make medical decisions for him or her? If the disabled person is a client of the Regional Center, the Director of the Regional Center can give medical consent to treatment, if there is no parent, guardian or conservator legally authorized to consent to medical treatment. Also, the Department of Developmental Disabilities and the Regional Center both have the ability to file and become the conservator for your child.
Mina N. Sirkin, Esq. 818.340.4479. SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
Things you cannot do without a specific court order: ◦ You cannot commit someone to a locked facility. (You can’t get this right in a Limited Conservatorship for someone below 65 without dementia) ◦ You cannot administer psychotropic medications against their wishes. (You can’t get it in a Limited Conservatorship for someone below 65 without dementia) ◦ You cannot make sterilization decisions without a court order. ◦ No psychiatric surgeries without a court order. ◦ No end of life decisions without a court order. Mina N. Sirkin, Esq. 818.340.4479. SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
Report of the Regional Center and Limited Conservatorships ◦ We have to give a 30 day notice to the Regional Center when we file a Limited Conservatorship Petition because the Regional Center has to prepare a report and give the court their recommendations. ◦ They often do not agree with the powers to control social/sexual contacts, and the power to control marriage. That is done to protect themselves. ◦ We always ask for those two additional powers when there is a need for them, and the court generally grants them over the recommendation of the Regional Center. Mina N. Sirkin, Esq. 818.340.4479. SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
What happens after you file the Petition to Appoint a Limited Conservator? ◦ First, there are many documents to be submitted when we file the petition. ◦ We have to give notice of the hearing to all family members to the second degree, and to the Regional Center. ◦ The court sets a hearing on our case. ◦ Depending on your County, the Court either sends out a Court Investigator or a Court-Appointed Counsel to visit the proposed conservatee and report to the Court. ◦ In Los Angeles County, the Court sends out the Court-Appointed Attorney who will visit and inquire into the suitability of the conservator, and the wishes of the proposed conservatee. Mina N. Sirkin, Esq. 818.340.4479. SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
Can Limited Conservatorships get contested in California? ◦ Yes. ◦ Either the Proposed Conservatee or any family or friend can challenge the conservatorship. ◦ Challenges are based on 1) Suitability of the Conservatorship; 2) Suitability of the Proposed Conservator; 3) Wishes of the Proposed Conservatee. ◦ Objections are common when you have divorced parents of the proposed conservatee. This substantially increases the costs of a conservatorship, Mina N. Sirkin, Esq. 818.340.4479. SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
Differences between a General Conservatorship and a Limited Conservatorship ◦ A limited conservatee is not presumed to be incompetent and retains all rights, civil and legal, except those the court has granted to the limited conservator. Prob C §1801(d). ◦ A limited conservatorship is available only for adults who have developmental disabilities. Prob C §§1420, 1801(d). (There is no corresponding "limited" guardianship for minors with developmental disabilities.) While an individual must have a developmental disability to qualify for a limited conservatorship, a person with a very severe developmental disability may qualify for a general conservatorship. Prob C §1828.5(c)–(d). See §§22.4–22.6. [Credit CEB] Mina N. Sirkin, Esq. 818.340.4479. SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
A limited conservator will be appointed if the court finds that the proposed limited conservatee lacks the capacity to perform some, but not all, of the tasks necessary to provide properly for his or her personal needs or manage his or her financial resources. Prob C §1828.5(c). See §22.4. A limited conservatorship requires notice to the regional center and an assessment by the regional center. Prob C §1827.5(a). See §§22.7, 22.12, 22.25–22.27. A limited conservator can get the Care and Custody powers plus up to 7 powers given to him/her by the Court, unless you can show there is a need for some other power. Some courts will allow a general conservatorship for a developmentally disabled individual. No court will allow a limited conservatorship, where the disabled person does not have a developmental disability which started before 18 years of age.
Mina N. Sirkin, Esq. 818.340.4479. SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
Differences between a Mental Health Conservatorship (LPS) and a Limited Conservatorship: Don’t get them mixed up! ◦ A mental health conservatorship is called an LPS Conservatorship, which is entirely different than a Limited Conservatorship. They are handled in different courts in LA County. ◦ In a Mental Health Conservatorship, the Court can order administration of psychiatric drugs and confinement against the wishes of the conservatee. In a Limited Conservatorship there is no order for administration of psychiatric medications or confinement against the wishes of the conservatee. ◦ An LPS Conservatorship Petition cannot be field by parents or relatives, and is only available for filing by the Public Guardian and psychiatrists. ◦ A Limited Conservatorship Petition can be filed by parents, relatives or others. Mina N. Sirkin, Esq. 818.340.4479. SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
No End of Life Powers â—Ś A Limited Conservator does not have the right to end the life of a Conservatee without a prior court order. The court will consider whether or not the Conservatee had the capacity to sign a POLST, Declaration to Physician, or other document re end of life wishes.
Mina N. Sirkin, Esq. 818.340.4479. SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
What ends a Limited Conservatorship in California? ◦ Death of a Conservatee. ◦ Death of a Conservator (unless there is a co-conservator). ◦ Someone will have to file another conservatorship petition. You cannot get a successor conservator before death of the main conservator. ◦ Appointment of a general conservator for the former limited conservatee; or ◦ A court order stating that the limited conservatorship is no longer needed and terminating the limited conservatorship. A conservatee can request that the court end the conservatorship. Mina N. Sirkin, Esq. 818.340.4479. SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
Important Resources ◦ List of Regional Centers: https://www.dds.ca.gov/rc/lookup-rcs-by-county/ ◦ The most important list you will need: THE LIST OF REGIONAL CENTER SERVICES AVAILABLE TO YOU: ◦ https://www.dds.ca.gov/wpcontent/uploads/2019/03/RC_ServicesDescriptionsEnglish_20190304.pdf ◦ Conservatorship Handbook ◦ GENERAL CREDITS: CEB on Conservatorships Mina N. Sirkin, Esq. 818.340.4479. SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
We can file Limited Conservatorships in every California County! Our advantages:
◦ We can file Limited Conservatorships in every California County. ◦ We have over 27years of experience in Limited Conservatorship, General Conservatorships and Special Needs Trusts. ◦ We can conduct our appointments on Zoom and by FaceTime. ◦ You will receive all documents digitally. ◦ Our conservatorship paralegals have over 20 years of experience and each has been with us his/her entire paralegal career. ◦ Ask us about Full Representation and Limited Representation. Mina N. Sirkin, Esq. 818.340.4479. SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
How to contact us: Mina N. Sirkin Los Angeles Conservatorship Attorney SIRKIN LAW GROUP, PC 21550 Oxnard St. 3rd Fl Woodland Hills, CA 91367 818-340-4479 Email: MSirkin@SirkinLaw.com http://Sirkinlawgroup.com Talk to our California Conservatorship Attorneys Today! Copyright 2020 Mina Sirkin Mina N. Sirkin, Esq. 818.340.4479. SIRKIN LAW GROUP, PC http://SirkinLawGroup.com
