Conservatorships
LPS vs Probate
ConservatorshipsLPS vs Probate |
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LPS |
PROBATE |
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How Initiated |
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By professional person in charge of faciity or his/her designee (W&I § 5352) |
Anyone may petition (Prob § 1801(a)) |
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Statutory Requirements |
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Requires mental disorder (W&I § 5350) |
Unable to provide for personal needs or manage financial resources (Prob § 1801(a) |
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Placement |
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Placement in locked facility possible (W&I §5358(a)(c) |
No such right. Persons with Dementia may be placed in locked facility (Prob § 2356.5) |
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Duration |
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1 year Must be renewed annually (W&I § 5361) |
Infinite (Prob § 1860 ) |
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Burden of Proof |
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Requires Grave Disability Beyond a Reasonable Doubt (Conservatorship of Roulet (1979) 23 C3d 219, 152 CR 424) |
Clear and Convincing Evidence (Prob § 1801(c)) |
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Right to a Hearing |
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Right to Court/Jury Trial on Issue of Grave Disability (W&I § 5350 (b)(1)) |
Right to Jury Trial on Issue of need for Conservatorship Judicial decision on Specific capacities (Prob Code § 1827) |
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Who May Be Conservator |
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Subject to list of priorities, unless investigator recommends otherwise (W&I §5350(b)(1) (Prob Code § 1812) |
Subject to list of priorities: spouse, adult child, parent (Prob § 1812) |
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Concurrent Existence of Conservatorship of Person and Estate |
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If probate conservatorship of Estate exists – cannot have concurrent LPS conservatorship of estate If Probate of person exists – LPS runs concurrently, but is superior to probate of person (W&I § 5350) |
Probate conservatorship of Estate permitted even if LPS conservatorship of Person exists |
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