About Probate Conservatorships

This section tells you about probate conservatorships. Probate conservatorships are only for adults over 18. If you are trying to help a child (minor), see the guardianship section of this website.

Click on a topic to learn more:

1. What is probate conservatorship?
2. If I become conservator of the person, will I automatically become conservator of the estate?
3. Is a probate conservatorship different from a mental health (LPS) conservatorship?
4. Is a probate conservatorship different from a limited conservatorship?
5. Who can file for conservatorship?
6. Who can be appointed as conservator?
7. What if no one is qualified to be conservator?
8. When should the Public Guardian be conservator?
9. Can I make medical decisions for the conservatee?
10. Can I make estate planning decisions for the conservatee?
11. What does the court investigator do in conservatorship cases?
12. Does the court investigator stay in touch with the conservatee?
13. When can I establish a probate conservatorship?
14. How do I establish a conservatorship?
15. How can I learn more about conservatorships?

1. What is a probate conservatorship?
    

   A probate conservatorship is a court proceeding where a judge appoints a responsible person (called a conservator) to care for another adult who cannot care for him/herself or his/her finances (called a conservatee). The person the Court appoints as conservator must be very responsible.

   There are two kinds of conservators:

   • A conservator of the person cares for and protects a person when the judge decides that the person (called the "conservatee") can’t 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 can’t do it.
2. If I become conservator of the person, will I automatically become conservator of the estate?

   No. If you want to become conservator of the estate, you must petition for that. You can do it at the same time as you file your petition for conservatorship of the person or you can file a separate petition later.
    

3. Is a probate conservatorship different from a mental health (LPS) conservatorship?

   Yes. An LPS conservatorship is only for people who are seriously mentally ill and need special care (usually placement in a locked facility and/or very powerful drugs to control behavior).

   But, if a person suffers from dementia and needs special drugs to control the dementia, they may need a probate conservatorship, not an LPS conservatorship. Read more about LPS Conservatorships.
    

4. Is a probate conservatorship different from a limited conservatorship?

   Yes. A limited conservatorship is a type of probate conservatorship for people who are developmentally disabled.

   Developmentally disabled people can usually do many things a conservatee cannot do. So, the Court limits their conservators’ powers. Read more about limited conservatorships.

5. Who can file for conservatorship?

   The person who wants to be a conservator can file. Others can file too, like a spouse, a relative, a state or local government agency (like the county Public Guardian ), or any other interested person or friend. Even the person who will be the conservatee can file, but that is extremely unusual.

   Before you file, find out if someone else is already planning to file a petition.
    

6. Who can be appointed as conservator?

   The law has a system for choosing the conservator. It gives preference to the person at the top of the list, then moves down:

   • Spouse
   • Adult child
   • Parent
   • Sibling
   • Any other person the law says is okay.
   • Public Guardian

   If the person closest to the top of the list does not want to be conservator, s/he can nominate someone else.

7. What if no one is qualified to be conservator?

   Call the Court Investigation Unit of the Probate Department: 408-882-2761 . Ask if you can appoint a private professional fiduciary as conservator. Private professional fiduciaries charge fees. If the person who needs help can’t pay the fees and there is no suitable family friend or relative to serve, contact the Office of Public Guardian . There may be fees charged, but they are based on a person’s ability to pay. They have experienced personal conservators and property administrators who can serve as conservator. If you are not eligible to use the Public Guardian’s services, contact the County Department of Aging and Adult Services on the County's Social Services Agency website.
    

8. When should the Public Guardian be conservator?

   The Court can sometimes appoint the Public Guardian as conservator. This usually happens when someone makes a referral. Referrals can be made by:
    

   • Adult Protective Services (APS),
   • A relative,
   • A neighbor,
   • A doctor,
   • A police officer,
   • The Court, or
   • Another interested person.

   For more information, or to make a referral, call the Public Guardian at: (408) 755-7610 . If you think there is financial abuse, call the APS hotline: 1-800-414-2002 . The State takes financial abuse cases seriously and may file criminal charges or a civil suit. (See Elder Abuse.)

9. Can I make medical decisions for the conservatee?

   It depends.

   If you are a conservator of the estate only, no.
   If you are a conservator of the person, you can supervise the conservatee’s routine medical care unless s/he does not want you to.

   If there is a medical emergency, you can supervise the conservatee’s care even if s/he objects. If the conservatee does not want medical treatment s/he needs, you can ask the Court for the power to give informed consent for the conservatee. This lets you authorize treatment even if the conservatee refuses.

   If the conservatee is clearly unable to give informed consent, because of a stroke, dementia or some other problem that makes communication with the doctor impossible, the doctor will probably fill out a declaration for you to submit to Court. If the Court approves your request, you will be able to make most medical decisions without the Court’s permission.

   But, if the conservatee has dementia and needs to be in a secure long-term care or residential care facility, or needs special drugs to treat the dementia, you must ask the Court for permission to have the conservatee confined, or to administer these drugs.

   To ask the Court for these special medical powers, a physician or licensed psychologist must fill out the Capacity Declaration—Conservatorship form GC-335 , which you must then file with the Court. This is a state Judicial Council form.
    

   If the conservatee’s needs change, you can always file a new petition to ask for the powers you need.

10. Can I make Estate Planning decisions for the conservatee?

    If you are the conservator of the estate, you control the conservatee's finances. But, the conservatee still has the power to make a Will.

    The Court will let you make a Will if:

    • the conservatee is too sick to make a Will or estate plans, or
    • the conservatorship was established because someone was taking advantage of the conservatee or exerting undue influence on him/her.

    Section 2580 of the Probate Code says the Court can have the conservator use “Substituted Judgment” to make a Will, a trust, or both, to make sure the conservatee has an estate plan. The Court may also let you use this power to change or revoke a trust, make gifts, change insurance policies or annuities, and sign contracts for the conservatee.

    You or any other interested person, like a family member, can present a petition asking for Substituted Judgment. You must send a copy of your petition and the notice of hearing to the same people you gave notice to for the conservatorship hearing. You must also give notice of the hearing to all beneficiaries in the conservatee's current estate plan, and anyone who would inherit from the conservatee under the laws of intestate succession.

    Read Probate Code Sections 2582 and 2583 to learn how to fill out the petition. Remember, it is important to show that if the conservatee could act for him/ herself and could act as a reasonable person, s/he would want to do what the petition is asking for. If your petition asks for big changes, you must explain to the Court why these changes are needed. You must also file the existing trust and/or Will and a draft trust and/or Will.

    We recommend you have a lawyer prepare these documents. You can find a probate lawyer from the membership list of the Silicon Valley Bar Association’s website . You can also get a referral to a lawyer from the Santa Clara County Bar Association . Their phone number is 669-302-7803 .

    You cannot petition the Court for Substituted Judgment at the same time as your conservatorship hearing. But, if the proposed conservatee may be dying, and you need to take action quickly, you can ask the Court to consider your petition even before it appoints a permanent conservator.

11. What does the court investigator do in conservatorship cases?

    The court investigator gives neutral information about your case to the judge. The investigator will call you and set up a visit with you and the proposed conservatee. Sometimes, s/he will meet with you and the proposed conservatee more than once.

    The Court wants the investigator to:
     

    • Have a private interview with the proposed conservatee.
    • Explain how the conservatorship will change his/her life.
    • Explain what will happen at the hearing.
    • Explain about the proposed conservatee’s right to fight the conservatorship, to have a lawyer, to have a different conservator and to have a trial by jury if s/he wants it.
    • If the proposed conservatee does not have the ability to understand or to give an opinion, the investigator will decide if a lawyer should be appointed to represent him/her
    • Review the petitioner’s Confidential Supplemental Information form and get more information if needed
    • Find out if the proposed conservatee is willing and able to come to the hearing. The investigator is allowed to look at the proposed conservatee’s confidential medical records.
    • See if the proposed conservatee is able to fill out an affidavit of voter registration.
    • Write a confidential report for the Court and send a copy to the conservator and the conservator’s lawyer.
    • Make recommendations to the judge about your case.

    For more information on the investigator’s duties, see Probate Code 1826 .

12. Does the court investigator stay in touch with the conservatee?

    Yes. In a year, the investigator will review your case again to make sure you are fulfilling your responsibilities as conservator and that the conservatee’s rights are being upheld. After the first year visit, the investigator will visit the conservatee every 2 years, or as often as the investigator feels necessary.

    If the investigator thinks there may be a problem, s/he will write a report and ask the judge to appoint a lawyer for the conservatee. This starts the legal process to remove you as conservator.

    The investigator will also visit the conservatee and make a report if:
     

    • The temporary conservator wants to move the proposed conservatee out of his/her residence.
    • The conservator petitions for exclusive authority to make medical decisions for the conservatee, especially if s/he is asking for special powers to take care of the needs of a demented conservatee.
    • The conservator wants to sell the conservatee’s home (or former home).

    The court investigator will explain the implications of these situations to the conservatee. S/he will then write a report to the Court with his/her recommendations.

13. When can I establish a probate conservatorship?

    You must be sure 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.

    You may not need a conservatorship if the person who needs help:
     

    • Can cooperate with a plan to meet his/her basic needs.
    • Has the capacity and willingness to sign a power of attorney naming someone to help with his/her finances or healthcare decisions. (Read more about Health Care Decisions.)
    • Has only social security or welfare income every month and the Social Security Administration can appoint you Representative Payee. The Representative Payee is the person the beneficiary allows to receive Social Security checks in their name on behalf of the beneficiary.
    • Is married and the spouse can handle financial transactions. The property must be community property or in joint accounts.
14. How do I establish a conservatorship?
     

    Step 1	Fill out your forms. You can download the forms by clicking on the form number below. Or, get them from a stationery store, bookstore, or the Self-Help Center. The state forms are also on the Judicial Council website: www.courts.ca.gov/. Tip: Choose "Probate-Guardianships and Conservatorships" from the drop-down menu. Fill out the state forms listed below: GC-310 Petition for Appointment of Probate Conservator GC-020 Notice of Hearing GC-312 Confidential Supplemental Information GC-320 Citation for Conservatorship GC-348 Duties of Conservator GC-314 Confidential Conservator Screening GC-340 Order Appointing Conservator GC-350 Letters of Conservatorship   There are 2 local forms you must fill out: PB-4002 Referral for Court Investigator & Questionnaire – Conservatorship PB-4003-1 Document Cover Sheet Additional forms you need to fill out:   If you are asking for a conservatorship of the person only (not the estate) you must have a physician or licensed psychologist fill out a Capacity Declaration - Conservatorship GC-335 form . If you are asking for a conservatorship of the estate only (not the person), you must either:   Have a physician or licensed psychologist fill out a Capacity Declaration - Conservatorship GC-335 form and the local form PB 4015 Professional Declarant's Attachment to Form GC-335 , OR   Fill out local form PB 4016 LayPerson's Declaration Re: Legal Capacity yourself. Important: Be sure to read the instruction sheet "Instructions to Counsel and Declarants for Completing GC-335, GC-335A, and Conservatorship of Estate Attachments G(1) and G(2)" (included with both PB 4015 and PB 4016). If you are asking for conservatorship of the person AND the estate, you must have a physician or licensed psychologist fill out a Capacity Declaration - Conservatorship GC-335 form and the local form PB 4015 Professional Declarant's Attachment to Form GC-335 . Be sure to read the instruction sheet included with the form. (See Probate Local Rule 11 ) If you or the proposed conservatee cannot afford to pay the court fees, fill out these forms, too: FW-001 Request to Waive Court Fees FW-003 Order on Court Fee Waiver (Superior Court) If there is an urgent need to establish a conservatorship, fill out these temporary conservatorship forms: GC-110 Petition for Appointment of Temporary Conservator GC-141 Order Appointing Temporary Conservator GC-150 Letters of Temporary Conservatorship There are special rules for temporary conservators. See Probate Code Section 2253 . Read Probate Local Rule 11 so you can fill out your forms correctly. Otherwise, you will have to correct them and file again.
    Step 2	Gather the information you will need to fill out your forms. You will need the proposed conservatee’s: full name; address; date of birth; social security number; doctor’s name, address, phone and fax numbers; and medical record number. If you are asking for a conservatorship of the person, Describe the person's mental or physical health. Say why you feel there is a need for a conservatorship. If you are asking for a conservatorship of the estate, Describe how the person cannot manage his/her finances or is easily influenced. Give examples of things that have happened and name other people who know about these problems. List the person’s assets in as much detail as you can (bank accounts, brokerage accounts, stocks, Savings Bonds, cars, boats, real property, etc). The Court wants to know about how much the assets are worth and how much income the proposed conservatee gets each month. You do not have to do this if you are married to the proposed conservatee and your assets are community property. Probate Code Section 3051
    Step 3	File your forms Make 2 copies of all your forms, including the Proof of Service, and take them to the Probate Clerk’s Office at: Probate Clerk’s Office, Room 104, Downtown Superior Court (DTS) Visit the DTS page for the courthouse address, phone and business hours. Closed court holidays. The clerk will ask you to pay a filing fee. (See the local fee schedule and look for probate filing fees.) S/he will stamp your originals and both sets of copies. The clerk will send one set of the copies to the Court Investigation Unit. They will investigate your case and make a recommendation to the Court before your hearing. The other set of copies is for your records.
    Step 4	Serve your forms You must “give notice by mail” to certain people including: grandparents, parents, brothers and sisters, children, grandchildren, and spouse. This means someone over 18 – not you – must serve (give) copies of the court forms to those people at least 15 days before the hearing. That way, they will know you are asking to be the conservator. You must do this even if you think those people don’t care or may disagree with you. Someone over 18—not you—must also “give personal notice” to the proposed conservatee. You can have a friend or family member do this, or you can hire a professional process server. The server must serve copies of these forms: Notice of Hearing Petition for Appointment of Conservator If you want to, you can also include a copy of the: Capacity Declaration There are rules for giving notice. You must follow them carefully or you may have to go back to Court. The person who serves the forms by mail must fill out and sign page 2 of GC-020 , then give it back to you. This is your Proof of Service. Make copies of both pages of this form and file it with the clerk with your other papers. If you have questions about how to serve your forms, talk to a probate examiner, the probate staff attorney at the court, or contact the court’s Self-Help Center.
    Step 5	Get a hearing date and a case number The clerk can give you a date for the conservatorship hearing about 10 weeks after you file your forms. (It takes the Court Investigation Unit at least 10 weeks to investigate your case.) To ask for a hearing date, call the clerk at DTS (408) 882-2100 extension 2649 . The clerk will give you a case number at the same time. If your situation is urgent, fill out the forms to apply for a temporary conservatorship. (See Step 1).
    Step 6	Complete additional forms If you haven’t done so already, file form GC-340 , your proposed Order Appointing Conservator. File it at least four days before your hearing. You can mail it to the clerk or file it at the Probate Clerk’s Office. If you haven’t done so already, fill out form GC-350 , Letters of Conservatorship. You can take this form to the hearing.
    Step 7	Prior to the hearing Prior to the hearing you must view the video, “With Heart: Understanding Conservatorships.” The video is available to you in two ways: You may make an appointment with the Court Investigator’s Office to view it at the courthouse. To do so call the Probate Court Investigator’s Office at (408) 882-2761 not less than two weeks before the hearing and ask to speak to the Supervising Court Investigator about scheduling a viewing. You may view the video online at https://www.youtube.com/watch?v=A-SX6YkFsP4 Once you have watched the video you must fill out, sign, and file Form PB-4076 with the court. Bring this form with you to Court on the day of your hearing and file it at the Probate Clerk’s Office with the Order appointing you once that Order is signed by the Judge.
    Step 8	Go to the hearing The time and date of your hearing are listed on GC-020 , #4. Allow plenty of time to go through the security screening and locate the courtroom. There will be signs by the elevators. Look at the door outside the courtroom to know when your case will be called. Sit in the courtroom and wait for the clerk to call your case. Watch the other cases so you will know what to do. When the clerk calls your case, step forward with the proposed conservatee (if s/he can be there). The judge may ask you some questions. It will only take a few minutes. If the judge approves the conservatorship, the clerk will give you a signed Order.
    Step 9	After the hearing Take the signed Order to the Probate Clerk’s Office downstairs. Also give the clerk: Form PB-4076 [showing you saw the video], the yellow slip [showing you bought the Handbook for Conservators and the Supplemental Resource Folder], and if you need a bond, file the bond with the clerk. The clerk will give you a filed copy of your Letters of Conservatorship.
    Step 10	Your responsibilities as conservator If you are conservator of the person, you must take care of the conservatee’s food, clothing, shelter, and well-being. If you are conservator of the estate, you must: manage and protect the conservatee’s assets, make a list of all assets, collect the conservatee’s income, and pay the conservatee’s bills. You have many other responsibilities, too. To learn more, talk to a lawyer. Or, read the Handbook for Conservators that you bought from the clerk. You can download the Santa Clara County Supplement to the Handbook from this website . It has practical information and lists resources in our county. You can also see resources listed online on the Probate Resources page.

15. How can I learn more about conservatorships?

    Look for books in the legal section of a bookstore. Or, ask a librarian for help. The rules for conservatorships are complicated. And, they are different for each county. Talk to a lawyer before you try to establish a conservatorship.

    For resources on helping elderly or disabled persons, such as with care in the home, see the Probate Resource page.