How to Declare the Elderly Incompetent in California

By Stephanie Reid
A hearing will be held in a California court to determine if an elderly individual is incompetent. Images

In order for an elderly individual to be placed under guardianship in California, he must first be declared incompetent to manage his own personal and financial affairs. To declare a Californian incompetent, a capacity hearing must be held where a judge will review all facts material to the case and determine if the adult is in fact incompetent. The person seeking the competency hearing must submit a variety of paperwork to the court before the court hearing. Once a person is declared incompetent, he may then receive guardianship assistance from a competent adult.

Understand the conservatorship language in California. Under California law, the elderly are declared incompetent via conservatorship hearings. Known as guardianship in most other states, conservatorship is a legal relationship in which one competent adult cares for the physical and financial needs of another adult declared incompetent by the courts. The person in need of care is known as a conservatee, the caretaker is the conservator and the relationship is known as a conservatorship.

Understand who may file for conservatorship. The role of conversator is not limited to immediate family members, although these are the people most likely to file. A conservator may be appointed solely to the financial or health aspect of the conservatees needs, or both. A petition for conservatorship may be filed by the interested conservator himself, the proposed conservatee, a spouse, relative or friend of the proposed conservatee or an interested state or local agency concerned with the conservatees well-being.

File paperwork with the appropriate California Superior Court. The conservatorship process begins with a filing of a petition for conservatorship within the proper California Superior Court. The person filing the petition is known as the petitioner and should file in the court located in the county or municipality in which the proposed conservatee resides. The petition is available in fillable format on the California judicial website. The form requires financial information as well as information about the petitioner. Once completed, file the form in the Superior Court and the clerk will arrange for the petition to be sent to all interested parties. Interested parties include any social worker involved in the case, the proposed conservatees spouse or his children.

Arrange for a medical examination of the proposed conservatee. California form GC-335 provides parties with a pre-formatted form for a physician to fill out regarding the proposed conservatee's mental cognition. Once completed, this form should be submitted to the Superior Court to be attached with the original petition. Copies of the form should be sent to all interested parties as well.

Attend the conservatorship hearing. Shortly after all parties have received notice of the pending hearing, and the proposed conservatee has participated in a medical examination, the superior court judge will schedule a hearing. At the hearing, testimony and evidence may be presented in opposition to or in support of the proposed conservatorship. At the conclusion of the hearing, the judge will issue a decree for or against the conservatorship arrangement. The decision will be made in light of the conservatee's best interests. The conservator, if appointed, will then be charged with knowledge and understanding of his legal duties with respect to the conservatorship arrangement.

About the Author

Stephanie Reid has been writing professionally since 2007, with work published in the Virginia Bar Association's "Family Law Quarterly" and the "Whittier Journal of Child and Family Advocacy." She received her Juris Doctor from Regent University and her Bachelor of Arts in French and child development from Florida State University. Reid is admitted to practice law in Delaware and Maryland.

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