How to Declare the Elderly Incompetent in California

By Teo Spengler - Updated July 23, 2018
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"Incompetent" is a word that has several meanings, so don't confuse an "incompetent" employee at the local store with an "incompetent" elderly individual requiring assistance. When a family member, friend or medical provider believes that an elderly person can no longer take care of her own affairs, they may ask a court to judge her mental competency. In California, the proceeding is not called a legal guardianship of elderly parent, but rather a conservatorship.

What is Conservatorship?

While in some states, the procedure resulting from a declaration of incompetence is called a guardianship, in California it is termed a conservatorship. In a conservatorship, the judge determines the mental competency of an adult and appoints a family member, friend or other responsible person, termed a conservator, to make decisions for the incompetent adult , called the conservatee.

California law sets out two types of conservatorships: the conservatorship of the person and the conservatorship of the estate. The former is charged with making sure that the conservatee has appropriate food, shelter, clothing and health care. On the other hand, a conservatorship of the estate focuses on managing the conservatee’s finances.

Seeking a Declaration of Incompetence

In California, a person who believes that an elderly family member cannot care for himself files a petition for appointment of probate conservator. The petition includes information about the elderly person, the person filing the petition, close relatives of the elderly person, and the reasons why guardianship is necessary.

Once the petition is filed, the court assigns a court investigator to the case and, in some cases, appoints an attorney to represent the person at the hearing. The elderly person and her relatives must be informed of the petition as well. When all parties are prepared, a hearing is scheduled.

At the hearing, the judge reviews the petition, the evidence presented and the statements made on both sides. The court ultimately makes the determination of whether the elderly person can or cannot care for himself. Based on the findings, the court decides whether to grant the guardianship petition.

Court Appointed Guardian for the Elderly

The person named conservator has a legal duty to put the interests of the elderly person before his own. This duty is called a fiduciary duty, and imposes one of the highest level duties the law recognizes.

The conservator's responsibilities vary depending on what type of help the elderly person needs. The conservator may have to make important decisions about how and where the elderly person will live, what health care she should get and how to handle her finances.

A conservatorship is considered a last-resort option by California courts. Although the intention is to assist the elderly person, these procedures are expensive, with complex procedural requirements and many forms to fill out. If other family members object, the process is emotionally charged and can be financially draining. Courts are also aware that some conservators do not in fact act in the best interests of elderly people.

It is always a better alternative for an adult to select someone to make decisions for her should she become incapacitated. However, a person can only do this – by making a living trust or appointing a power of attorney – while the elderly person is competent. If the person becomes incapacitated, it is too late, and these alternatives are no longer available.

About the Author

Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.

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