HOW AN ATTORNEY EFFECTUATES A LIMITED CONSERVATORSHIP OF THE PERSON
This outline shows the practices and procedures of attorney Grant A. Toeppen (me) when I am petitioning for a Limited Conservatorship of the Person in California.
Please note that these videos and my approach are at best an approximation of what works for me. Each Court is different. Each Judge is different. Each Court Investigator is different. Most importantly, each situation is different. There is no “one size fits all” approach when applying for a Limited Conservatorship of the Person.
That being said, the first key in making sure that all of the documents and procedures are being followed is to be in communication with the Court Probate Clerk and to check the Court’s website to make sure that local rules are complied with and local practices are followed.
The second key is to make sure to check the Court’s probate notes, starting about two and a half weeks before the hearing. Complying with the Probate Notes in a timely fashion is necessary, or else I expect a continuance to give me time to fix the issues the Court wants addressed.
The third key is to make sure to attend the hearing, even if a continuance is expected. Courts have been known to dismiss Petitions when a party fails to appear, even if a continuance is expected.
Before jumping in to all the details, here’s a video whereI give an outline of the process: https://www.advanceplanninglaw.com/blank-2/2020/01/19/Manteca-and-Livermore-Estate-Planning-Attorney-Grant-A-Toeppen-Describes-Limited-Conservatorships
Nothing in this guide constitutes legal advice or creates an attorney-client relationship between me (Grant A. Toeppen) and any person or entity.
Prepare and file initial documents. Recommendation is to hand-file with Court Probate Clerk. Usually I bring in the original and two copies, but check the Court’s Local Rules or call the Court’s Probate Clerk to be sure of the best practice. You can find these forms on the Judicial Council Website (https://www.courts.ca.gov/forms.htm?filter=GC). Forms include:
Request to Waive Court Fees, if applicable, ie Petitioner or Proposed Conservatee can demonstrate financial need (FW-001-GC): https://www.advanceplanninglaw.com/blank-2/2020/01/17/How-an-Attorney-Fills-Out-a-Fee-Waiver-for-a-Conservatorship---Form-FW-001-GC
Order on Fee Waiver, if applicable, ie Petitioner or Proposed Conservatee can demonstrate financial need (FW-003-GC): https://www.advanceplanninglaw.com/blank-2/2020/01/17/How-an-Attorney-Fills-Out-an-Order-on-a-Fee-Waiver-for-a-Conservatorship---Form-FW-003-GC
Petition for Appointment of Probate Conservator (GC-310), Video Link here: https://www.advanceplanninglaw.com/blank-2/2020/01/02/How-an-Attorney-Fills-Out-a-Petition-for-Appointment-for-Limited-Conservator-of-the-Person-CA
Notice of Hearing (GC-020), Video Link Here: https://www.advanceplanninglaw.com/blank-2/2020/01/13/How-an-Attorney-Fills-Out-A-Notice-of-Hearing-and-Proof-of-Service-for-a-Limited-Conservatorship-CA-Form-GC-020
Confidential Supplemental Information (GC-312), Video Link here: https://www.advanceplanninglaw.com/blank-2/2020/01/19/How-an-Attorney-Fills-Out-the-Confidential-Supplemental-Information-Form---Conservatorship--GC-312
Confidential Conservator Screening Form (GC-314) for EACH Proposed Conservator, Video Link here: https://www.advanceplanninglaw.com/blank-2/2020/01/19/How-an-Attorney-Fills-Out-the-Confidential-Conservator-Screening-Form-GC-314---California
Citation for Conservatorship (GC-320), will be stamped with Court’s seal, to be served as described in Video, link here: https://www.advanceplanninglaw.com/blank-2/2020/01/14/How-an-Attorney-Fills-out-a-Citation-for-Conservatorship-for-a-Limited-Conservatorship-GC-320
Capacity Declaration – Conservatorship (GC-335), can be filed up to two weeks before the hearing, Video link here: https://www.advanceplanninglaw.com/blank-2/2020/01/11/Capacity-Declaration---Limited-Conservatorship---How-to-Prepare-Form-GC-335-for-a-Physician
Order Appointing Probate Conservator (GC-340), can be filed up to two weeks before the hearing, Video link here: https://www.advanceplanninglaw.com/blank-2/2020/01/19/How-an-Attorney-Fills-out-the-Order-on-a-Limited-Conservatorship-of-the-Person-Only-Form-GC-340
Duties of Conservator and Acknowledgment of Receipt of Conservator’s Handbook (GC-348), can be filed up to two weeks before hearing, Video link here: https://www.advanceplanninglaw.com/blank-2/2020/01/19/How-an-Attorney-Fills-out-Duties-of-Conservator-for-a-Limited-Conservatorship-Form-GC-348
Letters of Conservatorship (GC-350), can be filed up to two weeks before hearing, Video link here: https://www.advanceplanninglaw.com/blank-2/2020/01/10/How-an-Attorney-Fills-Out-Letters-of-Conservatorship-for-a-Limited-Conservatorship-of-the-Person
The Proposed Conservatee needs to be handed a Citation and Copy of the Petition by someone who is not a Petitioner or Proposed Conservator and is over eighteen years old. Proof of Service needs to be filed with the Court at least two weeks before the hearing.
Notice of Hearing and a copy of the Petition needs to be served on all relatives within the second degree at least fifteen days before the hearing and Notice of Hearing and Proof of Service needs to be filed with the Court at least two weeks before the hearing. It needs to be served on the Regional Center at least thirty days before the hearing.
The Court Investigator will review the documents and interview the Conservatee, the Petitioner and the Proposed Conservator, and possibly other family members, friends, friends and neighbors; the Court Investigator will make a written report and file it with the Court before the hearing;
The Regional Center must also file a written report and file it with the Court before the hearing. Make sure the Regional Center does its duty here as I have had instances where the Regional Center repeatedly did not file its report without prodding.
ATTORNEY FOR CONSERVATEE
In many counties, the Court will automatically appoint a the Public Defender as an attorney for the Proposed Conservatee. In some counties, the Court will appoint a private attorney. This is typically done at the first hearing in these counties and then the Conservator will be appointed at the second hearing. Some Courts allow for an ex parte appointment of an attorney for the Proposed Conservatee. Check the Court’s Local Rules on the Court’s website or call the Probate Clerk in that Court to be sure of the best practice. It's important to note that private attorneys usually charge their hourly rate (~$300/hr+) unless a fee waiver is on file, in which case the Court pays the private attorney.
The Proposed Conservatee does have the right to object to all or part of the Conservatorship. In that instance, the attorney for Conservatee will represent the Proposed Conservatee in the contested proceeding.
Check for the Probate Examiner’s notes about two weeks before the hearing. Most Courts post them online, but for some you might need to call the Probate Clerk. Respond to the Probate Notes if there are any with requested documentation and/or supplemental declarations. If not, your case might be continued for several weeks or several months.
Appear at the hearing. Show up 15 minutes early. Dress as professionally as possible. If the Proposed Conservatee is able to attend, ensure the Proposed Conservatee’s attendance. The Judge may ask questions. Listen to the questions and respond as clearly, directly, and respectfully as possible. If the Probate Notes were not cleared, the Judge may continue your case to a future date. If your case is granted, make sure to pick up a copy of the Order and a Certified Copy of the Letters of Conservatorship either from the Court Clerk or the Probate Clerk.
FOLLOW UP AND MAINTENANCE
Pay attention to the Court’s orders at the hearing as they will tell you what follow up to expect. Typically there will be a status review in a year from the date of the hearing. Typically there is a requirement that a form be filed regarding the Level of Appropriate Care for Conservatee (GC-355). The Court may request more so pay attention at the hearing and review a copy of the order when in doubt!
Make sure that the Conservatee’s primary care physician, Regional Center, and any other medical professional or other professional or institution that requires a copy of the Letters of Conservatorship gets one ASAP.