Options for People Who Are Incapacitated

A comprehensive estate plan designates who is to handle a person’s affairs and medical decisions if that person becomes incapacitated. A durable power of attorney and an advance health care directive can usually accomplish this. But if a person becomes incapacitated before executing such documents, it may be necessary for a court to appoint one or more conservators to act on the person’s behalf.

The Santa Clara conservatorship attorneys of Temmerman, Cilley & Kohlmann, LLP have helped numerous families throughout northern California establish conservatorships for their elderly or otherwise disabled loved ones. Serving Fremont, Walnut Creek, Danville, Santa Clara, San Mateo, Alameda, Contra Costa, Santa Cruz, Monterey, San Francisco, and other counties, our conservatorship lawyers in San Jose help individuals file the required documents and provide the evidence necessary to have a conservator appointed by the court. A conservatorship attorney can also help appointed conservators file the necessary accountings with the court and cooperate with periodic court reviews and investigations.

The Conservatorship Process

The courts generally consider the creation of a conservatorship to be a last resort. Therefore, a person petitioning for the appointment of a conservator must provide clear and convincing evidence not only that the conservatee is unable to provide for their own physical needs or manage their financial resources, but also that no less restrictive alternative is available.

To begin the process, a Santa Clara conservatorship lawyer files a petition for the appointment of a conservator in a California Superior Court. That petition must contain information regarding the proposed conservator, a statement of why the conservatee is unable to handle their own affairs and care, and information regarding the spouse and relatives of the conservatee, as well as additional information depending on the circumstances.

Once a Santa Clara conservatorship attorney files the petition, the court schedules a hearing. At the hearing, the petitioner must provide evidence that the grounds for establishing a conservatorship exist. The conservatee may oppose the petition, retain his or her own conservatorship lawyer or have one appointed, and even demand a trial by jury.

The proposed conservatee’s spouse or domestic partner, relatives, friends, and other interested persons may support or oppose the conservatorship petition. The court also conducts an independent investigation, including interviews of the conservatee, petitioners, all proposed conservators, the spouse and relatives of the conservatee, and any other individuals the conservatee wants interviewed.

If, after the hearing and investigation, the court is satisfied that the conditions for conservatorship exist, it appoints a suitable conservator and grants that individual authority to manage the property and affairs of the conservatee. Conservatorships, except temporary conservatorships, continue until the death of the conservatee or until the court orders otherwise.

Attorneys offering incapacity planning and conservatorship assistance in San Jose

The Santa Clara conservatorship lawyers of Temmerman, Cilley & Kohlmann, LLP have experience helping clients deal with the multitude of legal issues that can arise concerning incapacitated adults. Our attorneys are available to consult with clients at our Santa Clara estate planning law firm — located at 2502 Stevens Creek Boulevard, San Jose, CA 95128 and 140 Town and Country Dr, Danville, CA 94526 — or at any other convenient location. Call our San Jose office at 408-290-7210 or our Danville office at 925-233-4399 or contact Temmerman, Cilley & Kohlmann, LLP online today.