Guardianship & Conservatorship

The Law Office of Alexandra McIntosh can assist you obtain a guardianship of minor children. The San Diego Superior Court provides the following information:

What is Guardianship?

Guardianship is a court proceeding in which a judge gives someone who is not the parent: Custody of a child under the age of 18. This type of Guardianship is called “Guardianship of the Person”. Power to manage the child’s income, money, or other property until the child turns 18. This type of Guardianship is called “Guardianship of the Estate.”

Guardianship of the Person

A petition for guardianship of the person is filed when a minor child is living with an adult who is not the parent and the adult needs the legal right to make decisions on behalf of the child. When a guardian of the person is appointed, the guardian is awarded custody of the child and the natural parents no longer have the right to determine where the child will live or how he or she will be educated. Instead, the guardian has those rights, including the responsibility to determine medical treatment for the child.

Guardianship of the Estate

A guardianship of the estate is set up to manage a child’s income, money, or other property until the child turns 18. A child may need a guardian of the estate if he or she inherits money or assets. In most cases, the court appoints the surviving parent to be the guardian of the child’s estate. A Guardianship of the Estate is not needed when the child receives social security benefits or TANF/CalWorks (welfare).

What is a Temporary Guardianship?

A temporary guardianship may be requested when a minor needs immediate help. A general guardianship must be set for hearing before or at the same time as the request for a temporary guardianship.

What are the alternatives to a Guardianship?

If the sole purpose of requesting Guardianship is to enroll the minor in school or to authorize medical treatment, a caregiver may complete a Caregiver’s Authorization Affidavit. The affidavit authorizes the caregiver, whether related or unrelated, to enroll the minor in school. If the caregiver is a relative, the affidavit may also be used to consent to medical/dental treatment. * Acceptance of the affidavit is at the discretion of the school and or medical/dental provider.

CONSERVATORHIP

The Law Office of Alexandra McIntosh can assist you in obtaining orders relating to Conservatorships. The San Diego Superior Court provides the following information:

Conservatorship of the Person

In a Conservatorship of the Person, the conservator is responsible for making sure that the conservatee has proper food, clothing, shelter, and health care. Depending on the conservatee’s ability to understand and make decisions, the conservator may need to make important medical choices for him or her.

Conservatorship of the Estate

In a Conservatorship of the Estate, the conservator handles the conservatee’s financial matters. These duties include managing the conservatee’s finances, protecting income and property, paying bills, making investments, preparing and filing taxes on behalf of the conservatee. The conservator is also required to make regular reports of the financial account to the courts and other interested parties.

General Conservatorship v. Limited Conservatorship

General conservatorships are often for elderly people, but can also be younger people who have been seriously impaired, like in a car accident, for example.

Limited conservatorships are for adults with developmental disabilities who cannot fully care for themselves or their finances. Conservatees in limited conservatorships do not need the higher level of care that conservatees in general conservatorships need.

Temporary Conservatorship

A temporary conservatorship may be set up when a person needs immediate help. A judge, upon finding of good cause, may appoint a temporary conservator of the person or of the estate, or both, for a specific period until a permanent conservator can be appointed. A temporary conservator arranges for temporary care, protection, and support of the conservatee and protects the conservatee’s property from loss or damage. A temporary conservator may also be appointed to fill in between permanent conservators, if, for example, the permanent conservator dies or the judge has ordered his or her removal. The authority of a temporary conservator is much more limited than a permanent conservator.

What are the alternatives to a conservatorship?

Before a conservatorship is granted, the petitioner(s) or proposed conservator(s) must first consider less restrictive alternatives to a conservatorship. Below are some common examples.

Supported Decision-Making

Supported decision-making is a process that allows people with disabilities or impairments to enter into a written agreement to receive support from trusted people but maintain the ability to make their own decisions. The person with a disability chooses the people who support them, including family, friends, staff, or professionals.

The supporters agree to help the person with a disability understand, consider, and communicate decisions. Supporters also give the person the ability to make their own informed decisions. Supported decision-making does not involve the courts. Additional information on supported decision-making is available from The Arc of California.

Designation of a Healthcare Surrogate

By Individuals With Capacity

For individuals who have not completed an Advanced Healthcare Directive (see below), their health care provider may recommend that they consider who they would like to assist in making health care decisions on their behalf if they become unable to make such decisions themselves. When a designation of a surrogate decision-maker is made, this designation is effective only during the course of the patient’s treatment or illness, during the patient’s hospitalization, or for 60 days, whichever period is shorter.

By Individuals Without Capacity

If an individual has not appointed a surrogate or agent through a valid written or oral directive for health care decision-making, the health care provider may identify an individual to make health care decisions on behalf of the patient. The patient’s surrogate must be an adult who has demonstrated special care and concern for the patient, is familiar with the patient’s personal values and beliefs to the extent known, and is reasonably available and willing to serve. A surrogate may be chosen from any of the following persons:

The spouse or domestic partner of the patient

An adult child of the patient
A parent of the patient
An adult sibling of the patient
An adult grandchild of the patient
An adult relative or close personal friend
Advanced Healthcare Directive (AHCD)

Advanced Healthcare Directive (AHCD)

An AHCD is a legal document that allows a person to specify their medical treatment preferences and appoint a trusted person to make healthcare decisions on their behalf if they become incapacitated. It includes details about medical history, values, beliefs, and end-of-life wishes. This document covers a broad range of situations, such as life-sustaining treatment, pain management, organ donation, and other medical decisions. This sample AHCDPDF is from the California’s Office of the Attorney General.

Physician Orders for Life-Sustaining Treatment (POLST)

While an AHCD is a comprehensive legal document that covers a wide range of healthcare decisions, a POLST is a medical form that is focused on end-of-life decisions that require immediate medical attention. For instance, it may specify whether a person wants to receive CPR, antibiotics, or be put on a ventilator. It also provides information about comfort measures, such as pain relief and hospice care.

Power of Attorney (POA)

A POA allows one person to name another person to make financial or other decisions on their behalf. A POA can be either “durable” or “springing.”

A durable POA means the person who has been named to make financial or legal decisions will be able to continue to do so as long as the POA exists.
A springing POA comes into effect when something occurs, such as a determination of incapacity.
This sample California Uniform Statutory POA is from the Sacramento County Public Library.

Living Trusts

A living trust allows a person to put assets and property, like bank accounts, real estate and life insurance, under the control of a trustee. Most people set themselves up as the trustee and also name a trusted person to be the successor trustee. When they die or become incapacitated or unable to manage the assets, the successor trustee takes over.

Special Needs Trusts (SNT)

An SNT is a way for a person with a disability to maintain eligibility for public benefits, such as Supplemental Security Income and Medi-Cal, even while having assets that would normally make them ineligible. The Department of Health Care Services provides additional information about SNTs.

Representative Payee

A representative payee is an individual or organization appointed by Social Security to manage a person’s Social Security or Supplemental Security Income (SSI) payments. They must use the money in the best interest of the person, often called a “beneficiary.” They will receive the public benefits, ensure that all bills are paid, and provide the beneficiary with money for their personal needs. The Social Security Administration provides additional information on the Representative Payee program.

What type of investigation is involved with becoming a conservator?

When a Petition for Appointment of Probate Conservator is filed, the Court will determine if an investigation is required prior to the hearing. If one is required, a Court Investigator will be assigned to the case and will contact the parties.

In limited conservatorships and general conservatorships where the petition is alleging that the proposed conservatee has Major Neurocognitive Disorder (formerly known as dementia), the Court will appoint an attorney to represent the proposed conservatee. The court-appointed attorney will contact the parties and prepare a report for the hearing.

After appointment, all Conservatorship cases are subject to periodic investigations by the Court Investigator. (Prob. Code §1850)