Limited conservatorship Guide California

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 §1801(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.

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).

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.

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.

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.

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

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.

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).

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.

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

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

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.

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.

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.

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.

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.

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 non-
emergency 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.

Should I have a Co-Conservator in a Limited
Conservatorship?
◦ There are pros and cons of having a co-conservators. Logistics
require two signatures on all documents where there are co-
conservators 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.
◦ 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.

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).

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.

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.

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.

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.

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,

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.

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.

No End of Life Powers
◦ 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.

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.

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/wp-
content/uploads/2019/03/RC_ServicesDescriptionsEnglish_20190304.pdf
◦ Conservatorship Handbook
◦ GENERAL CREDITS: CEB on Conservatorships

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.

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

Limited conservatorship Guide California

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