The recently released Netflix film I Care A Lot has fanned the flames of several misconceptions regarding the role of conservators. If we depended on Hollywood to give us the truth, we would infer that it is far too easy for bad-faith conservators to abuse their court-appointed role, prey upon the elderly, and abuse a conservatorship system that creates more problems than it solves.
This, we believe, is highly inaccurate and misleading. Not only is the role of a conservator essential for both individuals and estates in need, but these conservators are, by and large, highly responsible individuals and entities bound to ethical, moral, and legal guidelines that are designed to prevent any abuse from taking place.
At the same time, conservators are subject to rigorous and frequent scrutiny from the courts, making it very unlikely—if not impossible—that the types of abuse recently depicted in the media could be carried out without being quickly caught and addressed. Still, the influence of film and television is strong, and many people may have questions or concerns about the safeguards established to provide transparency and accountability for conservators.
With these concerns in mind, let’s answer some of the most common questions you might be asking.
What services do guardians and conservators provide?
Depending on the state, the terms “guardian” and “conservator” may be used interchangeably, or they may represent two different roles with distinct responsibilities.
In California, for example, a guardian is a person or entity claiming legal custody and responsibility for a person under the age of 18. By comparison, a conservator is a person or entity appointed to manage the affairs of an individual 18 years of age or older. But this clear division of roles isn’t the same in other states, where the terms “guardian” and “conservator” may refer to the same role. In the state of Nevada, for instance, the term “guardian” is used, regardless of the age of the person.
In other cases, guardians and conservators may be distinct roles with different responsibilities than those outlined in California. In some states, a guardian may refer to a person or entity managing the needs of an individual, and a conservator denotes a person or entity managing an estate.
If unsure, an attorney can help clarify the definition of these terms as it applies to your state.
Regardless of how these terms are used, one rule of these roles is consistent: When the court appoints a guardian or conservator, that person or entity must have a clear understanding of whether they’re responsible for the care of an individual, an estate, or both.
For the purposes and simplicity of this discussion, we will focus on California and define the role of the conservator according to state law, meaning an entity appointed to manage the affairs of a person 18 years of age or older.
Who determines whether to place an individual in a conservatorship?
Even when the preferences of an individual or family are clear, all conservatorships must be approved by a court. This legal process can be unique to each state. This process starts when a loved one files a petition with the court claiming that the individual is unable to manage their own finances or other aspects of their personal affairs.
The next steps can vary by state, but in California, the proposed conservatee and conservatee’s relatives must be informed after the petition is filed. The state is also required to conduct an investigation through Family Court Services. The investigation can take two to four weeks, and includes an interview with the proposed conservatee and conservators, as well as any other agencies or individuals who may be able to provide information.
In a subsequent court proceeding, the court will hold a hearing to confirm appropriate parties have been notified and review the evidence supporting this claim. This information will be used to determine whether to appoint a conservator, even on a temporary basis. This legal proceeding also provides an important safeguard in the conservatorship process, verifying that the conservatorship is both necessary and in the best interests of the individual or estate—and that the conservator appointed is the prudent choice to ensure those responsibilities are fulfilled.
Are conservators allowed to pay themselves?
According to California Probate Code, conservators are not allowed to pay themselves from a conservatee’s assets without a review from the court to assure the fees are reasonable. During this review, other interested parties are able to review payments and file objections before the court authorizes payment. Although it’s important to remember that professional conservators follow a code of ethics and statutory guidelines, these safeguards are still important to make sure conservatorships aren’t abused.
What happens if a conservator isn’t meeting their responsibilities to the conservatee?
In rare cases in which family members or other interested parties are concerned about inadequate or inappropriate practices by the conservator, those individuals have several ways to raise concerns and request accountability through the courts.
For example, family members are allowed to file petitions requesting a review of a conservator’s performance or their outright removal. Family members are also able to bring specific concerns to the court and request a hearing to review evidence of any claims being made.
Additionally, all conservators in California are subject to annual reviews in which court investigators will interview both the conservatee and members of their family, providing a consistent outlet to raise concerns and have them documented and investigated. Again, the real-life risk of this impropriety is low, but the safeguards are crucial to ensuring integrity in any conservatorship.
What lessons can we learn from I Care A Lot?
The recent release of the Netflix film I Care A Lot has sparked a great deal of conversation and concern around the role of conservators, as well as the laws and regulations dictating what conservators are allowed to do. Unfortunately, this movie misrepresents several aspects of modern-day conservatorship, and may give rise to concerns about conservatorships that are based on fictional exaggerations and fabrications.
Although several crucial events depicted in the movie are not realistic under today’s conservatorship regulations, the movie is still useful for prompting important conversations regarding the roles and duties of a conservator. Friends and family should feel free to consider their options if they believe that a conservator is violating these regulations, because transparency and accountability are the most important features of successful conservatorship. This can offer loved ones peace of mind when an individual or estate is placed in one of these arrangements.
Finally, we’ve worked with many conservators throughout the years. For these conservators, their hope is to help the conservatee ultimately get to a point where the conservatorship can be terminated. They take pride in seeing a former conservatee achieve sustainability and self-reliance.
Conservators play an important role in caring for and preserving the dignity of those who are unable to care for themselves. We hope that Hollywood and the media will eventually tell this more positive side of the story.