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Are There Any Alternatives To Guardianship Or Conservatorship?

There are alternatives to conservatorship. One alternative to conservatorship is to have a good solid estate plan in place where all of your assets are held in trust and to have a trustee in place with a durable power of attorney for assets. That person can then administer all of your assets, which would eliminate the need for a conservatorship of the estate. Likewise having a good advance health care directive in place would eliminate any future need for a conservatorship or guardianship. Whether or not there is an alternative to guardianship depends on the level of supervision needed and the length of time that the minor child needs to be under the care of an adult. There is an affidavit that would allow an individual to enroll the child in school and get medical care for the child, and the school would be required to honor that affidavit. There would be a need for a guardian in some situations. For instance, if the child were to need services from the county or the state or if the child needed major medical care such as surgery, that would require a guardian.

What Is The Difference Between Guardianship And Conservatorship?

Guardianship in California is where a person who is not a minor child’s parent basically steps into the role of the parent. Once they become the guardian they would be the person that makes all of the health care, religious, and educational decisions for the child. Guardianship of the person is not always equivalent to being a parent, because many times parents have to get a guardianship of person over their minor children to allow them to collect money on behalf of the minor child after a tragic accident or some other situation where the child is going to receive money, such as an inheritance. Conservatorship, on the other hand, is for anyone over the age of 18 and likewise it’s broken into two components, conservatorship of the person and conservatorship of the estate.

Does A Person Have To Be Mentally Incompetent To Have A Guardian Or A Conservator?

No. Again, guardianship is for minor children, so there’s no need for them to be incompetent – a perfectly healthy child with no parents would most likely need a guardian. Conservatorship is typically used when a person is unable to manage their own health, safety, or welfare or in some cases because they just don’t have the knowledge or the skill to manage their own financial affairs.

Are There Any Requirements Other Than Incapacity To Have A Guardian Or A Conservator Appointed?

No, provided that the court approves the petition to become the guardian or the conservator.

Are There Special Kinds Of Guardianship or Conservatorship?

There is only one kind of guardianship but there is such a thing as a limited conservatorship. This might be used when a person is born developmentally disabled but doesn’t necessarily need a full conservatorship and only needs a conservator in certain areas. The probate code specifies a limited conservator does not have any of the following powers or controls over the limited conservatee unless those powers or controls are specifically requested in the petition for appointment of a limited conservator and granted by the court in its order appointing the limited conservator:

  1. To fix the residence or specific dwelling of the limited conservatee.
  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.

Can A Guardianship Or Conservatorship Be Started On An Emergency Basis?

Yes. A guardianship or a conservatorship can be started with an ex parte application. If the ex parte application is granted, a Temporary Guardianship or Conservatorship is established and then there must be a hearing within 21 days.

Are There Differences Between Powers Of Attorney And Court Appointed Guardians And Conservators?

Yes. Powers of attorney are powers granted by an individual while they are competent for another individual to act on their behalf. They can be as general as allowing them to do everything for you and as specific as allowing them to sell your red Toyota Corolla. A court appointed conservatorship has whatever powers a court determines are necessary for the person’s health, safety, and welfare.

How Long Does It Take To Establish A Conservatorship Or Guardianship?

In Sacramento County it takes about three months to get the final hearing on a conservatorship and longer if there are dementia powers. You would go to the first hearing and then the court would appoint counsel to represent the proposed conservatee if there are issues related to dementia, because the probate Code requires that they have court appointed counsel. Then there would be a follow up hearing which would be another three months later, so it could take a full six months to get that appointment in place.

For more information on Guardianship & Conservatorship In California, a consultation is your next best step. Get the information and legal answers you are seeking by calling (916) 915-8866 today.

California Probate Lawyer Peter Cianchetta

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(916) 915-8866

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