In California, the need for a guardianship or conservatorship can add another level of complexity to a divorce. While the two terms are often used interchangeably, they are actually two different kinds of actions. Below we examine how a conservatorship or guardianship arises in the context of a California divorce. Here’s what you need to know:
The Difference Between Conservatorship and Guardianship
In the State of California courts, the term “conservatorship” refers to the care of an incapacitated or incompetent adult while the term “guardianship” refers to the care of a minor child. Both conservatorship actions as well as guardianship actions are typically initiated and finalized in the probate, rather than family court.
Why Do You Need a Conservatorship or Guardianship When a Divorce is Pending?
In general, the purpose of a conservatorship or guardianship is to establish the legal authority for a person to take over the support and care for another person.
There are a few situations where a conservatorship may be necessary or related to a divorce action, but the most common is when one spouse is incapacitated while a divorce is pending. The court cannot finalize a divorce – through trial or through settlement – if one party is effectively “absent”. For this reason, the court would appoint a conservator to allow someone to negotiate or represent the conserved spouse’s interests during the divorce action.
The most common way a guardianship arises during a divorce is also related to the incapacity of an adult, but in this instance, neither parent is capable of caring for the child(ren). Reasons for this include the death of one parent or both parents, or substance abuse, mental health issues, incarceration, or abuse allegations raised against the both parents. A guardian would be appointed to take care of the child or children until a parent can care for the child. Any custody arrangements made would be between the guardian and the surviving parent. A legal guardian is often a family member, close friend, or another person that the court feels will act in the best interests of the minor.
What is a Guardianship?
A guardianship gives someone other than a parent custody and authority over a minor child and his or her property, as ordered by the court. Guardianship is defined as a legally established relationship between a minor under the age of 18 and a caregiving person or organization that is not a parent.
The duties of a guardian often include overseeing the personal care of the minor, as well as providing basic life essentials such as food, housing and attending school. A guardian can also collect child support on behalf of the children if one or both parents are still alive.
In legal terms, the minor may be referred to as the “ward” and the responsible adult as the “guardian.”
Most adults seeking a guardianship seek the assistance of an experienced lawyer to go through the process. As a potential guardian, it is important that you clearly understand the duties and responsibilities involved. An experienced attorney can answer any questions or resolve any issues you encounter.
Appointing a Guardian in California
Appointment of a guardian begins with filing a petition with the court – typically, the probate court but a guardianship can also be established through the juvenile dependency court.
Alternatives to Guardianship in California
If guardianship isn’t right for your situation, there are some other options to consider, such as a private agreement between you and the parents of the child. This alternative allows you to line out the specific needs of the minor, including a medical release for emergencies. In this situation, it can be useful to have an attorney involved to make sure all your bases are covered.
A Caregiver’s Authorization Affidavit is a written statement that grants someone other than the child’s parent the right to make decisions on behalf of the minor. The affidavit can be useful for necessary life decisions like medical treatments or enrolling in school. The Caregiver’s Authorization Affidavit is recognized by the established California Family Code.
Unlike in a guardianship, a private agreement or a Caregiver’s Authorization Affidavit may be revoked by the parent at any time.
Terminating a Guardianship
It is important to note that a guardianship does not automatically terminate once a parent “gets back on their feet”. Terminating a guardianship, particularly if the child has been in a guardianship for a long period of time, may require a return to court absent an agreement between the guardian and the parent.
What is a Conservatorship?
A conservatorship is the legally established relationship between a caregiving person or organization and an adult who cannot care for himself or herself or manage their own financial decisions and transactions.
Legally, the caregiving adult may be referred to as the “conservator” and the incapacitated or incompetent adults as the “conservatee.”
The most common reasons for a conservatorship are related to health issues like dementia or Alzheimer’s Disease. Conservatorships are also vital for people living with a permanent disability (like cerebral palsy), are physically incapacitated (such as a coma), or have special needs (like severe autism).
Types of Conservatorship
A conservatorship can focus primarily on a person’s care or for their finances. There are a few types of conservatorships to consider:
- Joint Conservatorship: This is when more than one person is granted conservatorship. For example, if a son and daughter are both named joint conservators for an elderly parent.
- Conservatorship of a Person: This is a type of probate conservatorship that grants the authority to handle a person’s life decisions and personal health. A prime example of this is when a son is granted conservatorship over his elderly mother, granting him the power to place her in a nursing home where she can get the assistance and care that she requires.
- Conservatorship of an Estate: This is probate conservatorship grants a person the authority to manage another person’s finances on their behalf. For example, a daughter living with her elderly father may be given conservatorship of his finances so she can pay the monthly bills that are in her father’s name.
- Limited Conservatorship: In this type of conservatorship, a conservator is granted the authority to make decisions for an adult disabled child. In this scenario, the adult child would retain the authority to make some life decisions (like where they live) while allowing the conservator to manage the adult child’s finances.
There are organizations that, for a fee, will handle all decisions for an incapacitated person. This is most common when a family member or close friend is not available to act as a conservator.
Appointing a Conservatorship in California
Conservatorship can only be created by a court order and is handled in probate court in the county where the conservatee resides. Forms for conservatorship can be found on the California state or county probate court’s website or at the office of the court clerk.
The ward must be served with a copy of the conservatorship papers. The court will then schedule a hearing to decide if conservatorship is necessary or appropriate. It is often necessary to provide a doctor’s report based on an examination to obtain conservatorship of an adult.
The scope of the conservatorship is determined by the court’s order and can vary from case to case. Where a conservatorship arises during a pending divorce, it may be necessary to specifically request special powers from the probate court to address the outstanding issues in the divorce that do not usually arise in a typical conservatorship. A conservator must be appointed in court by a judge. The court has the power to modify or withdraw the conservatorship at any time.
In California, the conservatee does not have to consent to the conservatorship but do have some rights during the appointment process. A judge can rule on which rights will be granted, based on evidence and the current condition of the conservatee.
A conservatorship can be given on a temporary basis and later revoked by the court if the conservatee regains the ability to manage their own affairs.
Terminating a Conservatorship
A conservatorship is a complicated process that has many requirements and obligations assigned to the role of conservator. Stepping in as a conservator for a party to a divorce action is a very difficult situation, and the conservatorship appointment does not necessarily terminate once the divorce is entered. Terminating a conservatorship requires consent of the court and at least one hearing.