January 27, 2005

Devries Column

Court-imposed duties of conservators are important
(Part 1 of 2)

This week’s question:
My parents reside here in the Almaden Valley. They have a living trust, of course, and other related estate-planning documents. One of those documents includes a Nomination of Conservator just in case such a person becomes necessary. I am named as that person. If it becomes necessary that I serve as Conservator, what are my duties and responsibilities?

Scott S.
Almaden Valley

Dear Scott:
Your question is a good one. Hopefully, you will never need to serve as Conservator for one of your parents since they presumably have their estate planning documents in order. If, however, you need to serve for some reason, then these rules may come into play.

The best summary I have seen in plain language concerning duties and responsibilities of Conservators is contained in a court form that you would need to sign when the Conservatorship proceeding begins.

This court form is entitled “Duties of Conservator”, court form #GC-348. It consists of two main parts—Duties of Conservator of the Person and Duties of Conservator of the Estate, since you may need to serve in two different capacities. Obviously, both capacities are very important.

Since space limitations in this column prevent providing the entire form information in one article, the following will be a quotation of the Duties of Conservator of the Person. In my next column, I will provide the information concerning Duties of Conservator of the Estate.

DUTIES OF CONSERVATOR. When you are appointed by the court as a conservator, you become responsible to the court and assume certain duties and obligations. All of your actions as conservator are subject to review by the court. An attorney is best qualified to advise you about these matters. You should clearly understand the information on this form. You will find additional information in the Judicial Council Handbook for Conservators, which you are required by law to possess.

I. THE CONSERVATEE’S RIGHTS. A conservatee does not lose all rights or all voice in important decisions affecting his or her way of life. All conservatees have the right to be treated with understanding and respect, the right to have their wishes considered, and the right to be well cared for by you. A conservatee generally keeps the right to (1) control his or her own salary, (2) make or change a will, (3) marry, (4) receive personal mail, (5) be represented by a lawyer, (6) ask a judge to change conservators, (7) ask a judge to end the conservatorship, (8) vote, unless a judge decides the conservatee is not capable of exercising this right, (9) control personal spending money, if a judge has authorized an allowance, and (10) make his or her own medical decisions, unless a judge has taken away that right and given it to you. Ask your attorney what rights the conservatee does not have and consult your attorney when you are in doubt.

II. CONSERVATOR OF THE PERSON. If the court appoints you as conservator of the person, you will arrange for the conservatee’s care and protection, decide where the conservatee will live, and make arrangements for the conservatee’s health care, meals, clothing, personal care, housekeeping, transportation, and recreation.

1. ASSESS THE CONSERVATEE’S NEEDS. You must assess the conservatee’s needs and decide how to meet them.

2. DECIDE WHERE THE CONSERVATEE WILL LIVE. You may decide where the conservatee will live, but you must choose the “least restrictive,” appropriate living situation that is safe and comfortable and allows the conservatee as much independence as possible. You must not move the conservatee from the state or place the conservatee involuntarily in a mental health treatment facility without permission of the court. You must notify the court of each change of the conservatee’s address and your address. If you are authorized to place the conservatee in a secure facility because of dementia, you must be sure that the placement is appropriate, meets all special needs, and is the least restrictive.

3.PROVIDE MEDICAL CARE TO THE CONSERVATEE. You are responsible for ensuring that the conservatee’s health needs are met. You may not, however, give or withhold consent for medical treatment over the conservatee’s objection unless the court has given you exclusive authority to consent because the conservatee has lost the ability to make sound medical choices. If you have the authority to approve the use of psychotropic medications to treat dementia and the behaviors associated with it, you should be sure that other, less intrusive treatment options are explored first.

4.WORK WITH THE CONSERVATOR OF THE ESTATE. If someone else is handling the conservatee’s assets, the two of you must work together to be sure the conservatee can afford the care you arrange. Purchases you make for the conservatee must be approved by the conservator of the estate or you may not be reimbursed.

5.CONSULT YOUR ATTORNEY AND OTHER RESOURCES. Your attorney will advise you on your duties, the limits of your authority, the rights of the conservatee, and your dealings with the court. If you have legal questions, check with your attorney, not the court staff. Other questions maybe answered better and less expensively by calling on local community resources. (To find these resources, see the Handbook for Conservators and the local supplement distributed by the court.)

As I mentioned above, Scott, in the next issue of the Almaden Times, we will cover the duties of Conservator of the Estate.

Donald J. DeVries
Almaden Valley

Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, fax at (408)268-6502, telephone at (408) 268-9500, or mail at, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Visit his Web site at www.almadenvalleylawyers.com to view Almaden Times columns since 1986. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.