Conservatorships

LPS vs Probate

LPS

 

PROBATE

How Initiated

By professional person in charge of faciity or his/her designee

(W&I 5352)

 

Anyone may petition

(Prob 1801(a))

Statutory Requirements

Requires mental disorder

(W&I 5350)

 

Unable to provide for personal needs or manage financial resources

(Prob 1801(a)

Placement

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)

Duration

1 year

Must be renewed annually

(W&I 5361)

 

Infinite

(Prob 1860)

Burden of Proof

Requires Grave Disability Beyond a Reasonable Doubt

(Conservatorship of Roulet (1979) 23 C3d 219, 152 CR 424)

 

Clear and Convincing Evidence

(Prob 1801(c))

Right to a Hearing

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)

Who May Be Conservator

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)

Concurrent Existence of Conservatorship of Person and Estate

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