A serious illness, accident, or cognitive decline can leave an adult unable to manage finances or make personal and medical decisions. Without proper planning, family members may need to ask a California court to appoint a conservator.

A conservatorship can be time-consuming, expensive, and emotionally difficult. It also places ongoing responsibilities under court supervision. Although no estate plan can guarantee that a conservatorship will never be necessary, three documents can greatly reduce the risk.

1. Revocable Living Trust

A revocable living trust helps manage assets during your lifetime, including during incapacity.

When you create a trust, you usually serve as the initial trustee and remain in control. You also name a successor trustee. The successor trustee not only steps in when you die, but they may step in if you become unable to manage the trust. The successor trustee may then pay bills, manage investments, maintain property, and handle other trust assets without first seeking appointment as conservator of your estate.

Your trust should clearly address:

• How incapacity will be determined;
• Who will serve as successor trustee;
• What authority the successor trustee will have; and
• How assets should be used for your care and support.

2. Durable Power of Attorney

A durable power of attorney allows a trusted person—called an agent or attorney-in-fact—to manage financial and legal matters for you. The word “durable” means the authority can continue even if you later become incapacitated.

This document is especially important for matters involving assets or transactions outside your trust. Depending on the authority granted, your agent may be able to handle banking, taxes, insurance, government benefits, contracts, retirement accounts, and other financial affairs.

Some powers of attorney become effective immediately. Others become effective only after incapacity is established. Each approach has advantages and risks. The document should also name one or more backup agents in case the first person cannot serve.

A generic form may not address every situation. Financial institutions may also be reluctant to accept documents that are unclear, outdated, or incomplete. Careful drafting and periodic updates can make the power of attorney more useful when it is needed most.

3. Advance Health Care Directive

In California, an Advance Health Care Directive lets you appoint an agent to make health care decisions if you cannot. It can also state your preferences regarding treatment, end-of-life care, pain relief, organ donation, and other medical issues.

Without a clear directive, relatives may disagree about who should speak for you or what care you would want. If the conflict cannot be resolved, court involvement may become necessary.

Choose an agent who will remain calm, communicate effectively with medical providers, and follow your wishes—even under pressure. Name backup agents and discuss your preferences with them before a crisis occurs. Your health care providers and agents should know where to find the signed directive.

Why You Need All Three

These documents serve different purposes:

• A revocable living trust addresses assets held in the trust.
• A durable power of attorney addresses assets outside the trust.
• An Advance Health Care Directive addresses medical and personal health care decisions.

One document generally cannot replace the other two. Together, they create a coordinated plan for financial management, asset administration, and health care decisions.

Do Not Wait for a Crisis

These documents must be signed while you have the required mental capacity. Once incapacity becomes severe, it may be too late to create or revise them. That is why incapacity planning is not limited to older adults. Every adult can face an unexpected accident or illness.

Review your plan after major life events and whenever your chosen agents or trustees are no longer appropriate. Confirm that your trust is funded, your documents are properly signed, and trusted individuals know where the originals are stored.

Planning now preserves more control, gives loved ones clear authority, and reduces the likelihood that a California court will need to intervene later.

If you want to speak with an attorney about estate planning or conservatorships, reach out to Fidelitas Law at (925) 266-3449 or info@fidelitaslaw.com.

If you’re exploring conservatorship options for a loved one in California, you’ve probably come across two distinct types: conservatorship of the person and conservatorship of the estate. While both are designed to help adults who can no longer manage their own affairs, they serve very different purposes. Understanding the difference can help you determine which type—or whether both—might be right for your situation.

What Is a Conservatorship?

A conservatorship is a legal arrangement in which a court appoints someone (the conservator) to make decisions on behalf of an adult (the conservatee) who cannot do so themselves because of physical or mental limitations. Think of it as a safety net that allows trusted individuals to step in and provide necessary care and management when someone is no longer able to handle these responsibilities independently.

Conservatorship of the Person: Daily Care and Health Decisions

A conservatorship of the person focuses on the day-to-day well-being and personal care of the conservatee.

What a conservatorship of the person cover?

• Medical and healthcare decisions: You’ll work with doctors to decide on treatments, surgeries, medications, and therapy. You’ll also ensure your loved one receives appropriate medical attention and follow-up care.
• Living arrangements: You determine where the conservatee will reside—whether that’s at home with assistance, in your home, or in a residential care facility.
• Personal care needs: This includes arranging for meals, clothing, transportation, social activities, and other aspects of daily living that contribute to your loved one’s comfort and dignity.

When is it needed?

This type of conservatorship is appropriate when someone can no longer make sound decisions about their own health or safety. Common situations include individuals with advanced dementia, severe mental illness, traumatic brain injuries, or developmental disabilities that prevent them from understanding their medical needs or living situation.

The conservator of the person doesn’t control the conservatee’s money or property—that’s a separate role. Instead, you’re focused entirely on their physical and emotional well-being.

Conservatorship of the Estate: Managing Money and Property

A conservatorship of the estate is all about financial management.

What does a conservatorship of the estate cover?

• Bank accounts and income: You manage checking and savings accounts, deposit income (like Social Security, pensions, or rental income), and ensure funds are available for expenses.
• Paying bills and expenses: You’re responsible for paying rent or mortgage, utilities, insurance premiums, medical bills, taxes, and other financial obligations.
• Real estate and investments: You manage property ownership, handle rental properties, oversee investment accounts, and make decisions about buying or selling assets.
• Protecting assets: You have a duty to preserve and protect the conservatee’s estate, avoiding unnecessary risks or waste.

When is it needed?

This conservatorship becomes necessary when someone can no longer handle financial tasks safely or competently. This might occur due to cognitive decline, mental illness, or vulnerability to financial exploitation. Perhaps your loved one is forgetting to pay bills, making poor financial decisions, or falling victim to scams.

As conservator of the estate, you’ll need to keep detailed records, file regular accountings with the court, and always act in the conservatee’s best financial interest.

Can You Have Both?

Absolutely. In many cases, the same person is appointed as both conservator of the person and conservator of the estate. This arrangement makes sense when one trusted individual can handle both the personal care decisions and financial management. However, the court can also appoint different people to these roles if that better serves the conservatee’s needs—for example, a family member might handle personal care while a professional fiduciary manages complex financial matters.

Which One Do You Need?

The answer depends entirely on your loved one’s specific limitations:

• If they need help with healthcare and daily living but can still manage their finances, you may only need conservatorship of the person.
• If they’re physically and mentally capable of self-care but can’t handle money matters safely, conservatorship of the estate alone might be sufficient.
• If they need assistance in both areas—which is common—you’ll likely pursue both types.

Moving Forward

Conservatorship is a significant legal step that involves court oversight and ongoing responsibilities. Before proceeding, consider whether less restrictive alternatives (like a power of attorney or healthcare directive) might meet your loved one’s needs. When conservatorship is necessary, understanding these two distinct types will help you provide the right kind of support—whether that’s managing daily care, protecting financial assets, or both.

If you want to speak with an attorney about these choices, reach out to Fidelitas Law at (925) 266-3449 or info@fidelitaslaw.com.

Planning for the future is one of the most important steps you can take to protect yourself and your loved ones. Whether it’s ensuring your financial affairs are in order or making sure someone you trust can make decisions on your behalf, understanding the tools available to you is key. In California, two common legal mechanisms for managing decisions when someone is unable to do so themselves are a power of attorney and a conservatorship. While they may seem similar, they serve different purposes and involve distinct processes. Let’s break them down.

What Is a Power of Attorney?

A power of attorney is a legal document that allows you (the “principal”) to appoint someone you trust (the “agent” or “attorney-in-fact”) to make decisions on your behalf. This tool is often used to manage financial, legal, or medical matters.

In California, a durable power of attorney is particularly useful because it remains effective even if the principal becomes incapacitated. This means that the agent can continue to act on your behalf without the need for court intervention. In re Marriage of Caballero, 27 Cal. App.4th 1139 (1994). In my practice, I almost always create a durable power of attorney for my clients.

Importantly, a power of attorney must be created while the principal is still mentally competent, as the principal must have contractual capacity when signing and needs to understand the contents of the document.  

A power of attorney is a proactive planning tool, giving you control over who will act for you in the future.

What Is a Conservatorship?

A conservatorship, on the other hand, is a court-ordered arrangement in which a judge appoints a conservator to manage the personal or financial affairs of an adult who is unable to do so themselves due to incapacity. In California, a conservatorship might involve one or both of the following:

• Conservatorship of the Person: The conservator is responsible for the conservatee’s personal needs such as housing, healthcare management, and food.
• Conservatorship of the Estate: The conservator manages the conservatee’s financial affairs, pays their bills, and ensures their assets are protected.

Unlike a power of attorney, a conservatorship is typically established when no prior planning has been done, or when urgent legal authority is needed to protect someone’s well-being or finances. The process involves court proceedings, clear and convincing evidence of incapacity, and ongoing court oversight.

Key Differences Between a Power of Attorney and a Conservatorship

While both tools allow someone to act on behalf of another, there are significant differences:

1. Initiation:
   • A power of attorney is created voluntarily by the principal while they are still competent.
   • A conservatorship is initiated through a court process, usually when the individual is already incapacitated.
2. Control:
   • With a power of attorney, the principal chooses their agent and retains the ability to revoke the document or change their agent, as long as they are competent.
   • In a conservatorship, the court selects and supervises the conservator, and the conservatee loses significant control over their affairs.
3. Court Involvement:
   • A power of attorney does not require court involvement if properly executed.
   • A conservatorship requires ongoing court oversight, including annual reports on the conservatee’s status and finances.
4. Cost and Complexity:
   • Appointing an agent under a power of attorney is fairly simple and inexpensive.
   • A conservatorship involves court fees, legal representation, and potentially lengthy proceedings.

Takeaways

A power of attorney is the preferred option for those who still have capacity and want to plan ahead for incapacity. A conservatorship should be seen as a last resort when no prior planning has been done or when immediate legal authority is needed to protect someone who is already incapacitated.

Resources

• Types of California Conservatorships
• Handbook for Conservators

If you would like to speak with an attorney about establishing a power of attorney or conservatorship, reach out to Fidelitas Law at info@fidelitaslaw.com or (925) 266-3449.