Deficits Must Impair Ability to Act; Isolated Incidents Are Not Enough for Conservatorship

The court may consider a deficit in mental functioning as evidence that the proposed conservatee lacks capacity only if the deficit “significantly impairs the person’s ability to understand and appreciate the consequences of his or her actions with regard to the type of act or decision in question.” Prob C §811(b). For example, to establish a deficit in alertness and attention, it would not be sufficient to allege that the proposed conservatee is drowsy all day and inattentive to his or her surroundings. Instead, the petition must show that the proposed conservatee fails to bathe and eat for days at a time or that, due to lack of attention, he or she routinely wanders into unfamiliar neighborhoods and becomes lost or disoriented.
Incapacity cannot be established by evidence of isolated incidents of negligence or improvidence. Prob C §1801(b). For instance, if the proposed conservatee fails to pay her utility bills for several months, but pays them when the utility company sends a notice of nonpayment, the evidence is insufficient to establish incapacity. By contrast, if several utility companies terminate service for nonpayment, the petitioner seeking a conservatorship of the estate may use this to prove that the proposed conservatee is substantially unable to manage his or her financial resources.
It is important to note that the test is whether the person can handle his or her own financial resources. In some cases, the proposed conservatee may be able to handle simple financial matters but has significant assets and a complicated financial picture. The court cannot rule out a conservatorship of the estate in such cases.

What power does the conservator have?

Under a conservatorship of the person, the conservator has the “care, custody and control” of the conservatee, which includes the power to determine where the conservatee will live. The conservatee, however, is presumed to have the capacity to make medical decisions (Prob C §2354) unless the court finds, pursuant to a petition requesting that the conservator have exclusive medical powers under Prob C §2355, that the conservatee lacks the capacity to give informed consent to any form of health care.

Effect of Establishment of a Conservatorship

The establishment of a conservatorship shifts the responsibility for making financial and personal care decisions from the conservatee to the conservator; the relationship of conservator and conservatee is a fiduciary relationship. P

A conservatorship imposes significant limitations on the conservatee’s ability to act on his or her own behalf. Under a conservatorship of the estate, a conservatee is presumed to lack capacity to contract; to sell, transfer, or convey property; to make gifts; to incur debts (except in limited circumstances); to delegate powers; to waive any rights; or to serve as a fiduciary.