FAQ: What you need to know about the probate system before you’re entangled in it

Probate courts and conservatorships can be among the most confusing and frustrating components of the justice system. Here are some typical questions you might have when first exposed to California’s probate system, which has the potential to rule your life or the life of a loved one.

Q: Isn’t probate typically associated with contested wills or lack of a will when someone dies? Or is probate more than that? 

A: Yes, probate courts also can be used for appointing conservators and guardians to, in theory, care for the elderly and disabled and protect them from being bullied or taken advantage of.

Q: What is a probate conservatorship?

A: A probate conservatorship is a court proceeding in which a judge appoints a responsible person (called a conservator) to care for another adult who cannot care for himself/herself or manage his/her finances (called a conservatee). There are two kinds of conservators:

• A conservator of the person cares for and protects a person when the judge decides that the conservatee cannot do it.
• A conservator of the estate handles the conservatee’s financial matters — like paying bills and collecting a person’s income — if the judge decides the conservatee cannot do it.

Q: When can I establish a probate conservatorship?

A: You must be certain that establishing a conservatorship is the only way to meet the person’s needs. If there is another way, the court will not grant your petition. In general, you may not need a conservatorship if the person who needs help:

• Can cooperate with a plan to meet his or her basic needs.
• Has the capacity and willingness to sign a power of attorney naming someone to help with his or her finances or health-care decisions, in essence, name his or her own conservator.

Q: Who can file for a conservatorship?

A: The person who wants to be a conservator can file. Others can file as well, such as a spouse, a relative, a state or local government agency (such as a county public guardian) or any other interested person or friend.

Q: Who can be appointed as a conservator?

A: The law provides criteria for choosing a conservator. It gives preference to the first person on this list, and then moves down from there in order: spouse, adult child, parent, sibling, any other person the law says is OK, and the county public guardian.

Q: How can I find a trustworthy conservator to take care of my loved one’s personal needs, such as food, clothing, shelter and medical care?

A: Judges often appoint the conservator. You can research that person online, through the limited resources of the California Professional Fiduciaries Bureau or such consumer services as Yelp. If the judge appoints an attorney, you can look up his or her record at the website of the California State Bar. But there are very few options for researching conservators in depth. Reform groups such as the Coalition for Elder and Disability Rights are available. 

Q: To whom do I report a problem if I suspect a conservator is draining my relative’s assets or otherwise not acting in the best interests of a conservatee?

A: You can report the activity to the judge or to the Professional Fiduciaries Bureau. However, the bureau has only one investigator and a 365-day goal for clearing complaints. Results may come slowly. Meanwhile, the conservator can defend himself or herself in court using your loved one’s money.

Q: What does a court investigator do in conservatorship cases?

A: The court investigator looks into anything the judge deems warranted, from family complaints to a conservator’s accusations, and gives impartial information to the judge.

Q: How can conservatorships be avoided? Is there an alternative?

A: The best way to avoid conservatorship problems is for families to get along and work things out among themselves to stay out of probate court. If you do go to court, try to nominate your own conservator.

Q: What is a guardianship?

A: A guardianship comes into play for minors only if the child is not involved in a Family Court or Juvenile Court action. The probate court will appoint an adult who is not the child’s parent to take care of the child or the child’s property.

Q: What is the public guardian?

A: The office of the public guardian in each county takes on cases in which the client cannot afford a private guardian.

Q: What is a fiduciary?

A: A fiduciary is a financial adviser who must act in the best interest of his or her clients.

Sources: Orange County Superior Court website, Wex legal dictionary.