Probate Court

Probate Court

Probate Court covers primarily Decedent Estates, Trusts, Conservatorships  and Guardianships.  In California, conservatorships are set up for care of adults, and guardianships are set up for care of minors.  This section covers Conservatorships and Guardianships only:

Notice to parties of Guardianships, Conservatorships, and Personal Representatives of Estates

You may wish to seek legal advice before applying to represent yourself in the above matters.  Failure to take timely and appropriate action in these cases may result in serious legal consequences.

Probate Court Investigators

Court investigators primarily assist the Court in cases involving conservatorships and guardianships.  Court investigators have specialized training in social work, accounting, mental health and criminal justice.  There is a fee for most investigations.

Under California law, the court uses an investigator to assist in determining if a conservatorship or guardianship is really necessary and to determine if the proposed conservator or guardian is the person most suitable to act in the best interests of the proposed conservatee or minor.

Conservatorships

California law requires court investigators to carefully assess the living situations, general health and well-being and finances of conservatees or potential conservatees to ensure that conservators are acting in the best interests of conservatees. Investigators must visit conservatees regularly, review health and medical records, examine financial accountings prepared by conservators, and prepare reports for the Court on their findings.

Guardianships

Court investigators review and report on the qualifications of people who are seeking court appointment as guardians for children. These investigations include site visits and interviews with proposed guardians and others to determine the potential impact of the physical, emotional and social environment on the children.
 

Conservatorships

A conservatorship is a court proceeding to appoint a qualified person to manage the personal care and/or the financial affairs of an individual who is either physically or mentally unable to handle his or her own affairs.  A person or organization the Court appoints to do this is known as the "conservator." A conservator can be a family member, friend or professional person. The person who is unable to care for him or herself is called the "conservatee."

A conservatorship of the person ends when the conservatee dies or the conservatee regains the ability to handle his or her own personal affairs. A conservatorship of the estate ends when the Court terminates the conservatorship of the estate, typically when the conservatorship estate funds are depleted or when the conservatee dies or regains the ability to handle his or her own financial affairs.

General or Limited Conservatorships

A Limited Probate Conservatorship applies when the conservatee is developmentally disabled. In this type of conservatorship, the powers of the conservator are limited so that the disabled person may live as independently as possible.

A General Probate Conservatorship is for all other adults who are unable to provide for their personal needs due to physical injury, advanced age, dementia, or other conditions rendering them incapable of caring for themselves or making them subject to undue influence.

Once a Petition for Conservatorship has been filed, the Court will set the matter for hearing. Court investigators are assigned to interview all persons who are the subject of a petition for conservatorship before the first hearing is held. The court investigator may interview numerous family members, neighbors and others to provide as much information as possible to the Court to assist in making a determination as to whether to grant the conservatorship. When interviewing the proposed conservatee, the purpose of the interview is to determine whether the person understands the proceedings or has any objections to them.

After a conservatorship appointment has been made, court investigators regularly interview both the conservator and the conservatee and report to the Court about the well-being of the conservatee and whether the conservatee's estate is being properly managed. Investigators carefully review the accountings submitted at regular intervals by the conservator to ensure that the accountings appear reasonable and accurate and that all disbursements are made exclusively for the benefit of the conservatee.

Temporary Conservatorships

On occasion, a temporary conservatorship may be appropriate if there is an emergency that requires an immediate appointment prior to the conservatorship hearing date. A petition for temporary conservatorship must be filed at the same time as the petition for limited or general conservatorship. It may not be filed separately from a general conservatorship. A Petition for Appointment of a Temporary Conservator should have all information supporting the need for emergency orders, including copies of any relevant medical, police, or Adult Protective Services reports.

Lanterman-Petris-Short Act (LPS) Conservatorships

LPS conservatorships are established under the Welfare and Institutions code to provide help for persons who are gravely disabled as a result of their mental disability. These conservatees may be a danger to themselves or others. The conservator is responsible for helping to find a placement and mental health treatment for the conservatee who is gravely disabled. An LPS (mental health) conservatorship makes one adult responsible for a mentally ill adult. This type of conservatorship is only for adults with mental illnesses listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM).

An LPS conservatorship is only for people who are seriously mentally ill and need special care (usually placement in a locked facility and/or very powerful drugs to control behavior).

An LPS conservatorship is used only when the person needs mental health treatment but cannot or will not accept it voluntarily. Because the person subject to an LPS conservatorship may be placed in a locked facility, there are special protections to ensure that the conservatee's civil rights are protected. LPS Conservatorships are investigated by the Office of the Public Guardian/Conservator.
 

 Guardianships

Guardianship is a court process in which someone other than a parent is given custody of a child or when a parent or other person is given authority over a child's property. The child, called the "minor" or "ward," must be under the age of 18. A legal guardian is an adult the Court chooses to be responsible for and care for a child, manage the child's property, or both.   It differs from adoption in that, among other differences, guardianships may be terminated, guardians may be removed or replaced, and certain restrictions regarding residence are enforced.  An adoption is treated as a natural birth with all of the rights of a parent/child relationship.

A guardianship of the estate allows the guardian to make financial decisions for a child, and is often filed when a minor is to receive a large monetary gift or inheritance. Both parents and non-parents can become guardians of the estate for children. In guardianships of the estate, the guardian may be required to obtain a bond or the Court may require the funds to be placed into a blocked account in which withdrawals are allowed only with prior court approval.

The law requires that the Court conduct an investigation of anyone seeking to become a guardian. A court investigator performs this investigation and there is a fee for this investigation.

Temporary Guardianship

Temporary guardianship enables a person to have legal guardianship of a minor prior to the general guardianship hearing. It cannot be filed separately from a guardianship. There must be an urgent need to justify a temporary guardianship.

Forms

Guardianship forms are available in the Civil Clerk's Office. Required forms may include both Judicial Council forms and local forms.  Judicial Council forms may be downloaded from the Court's web site through the SHARP (Self Help Assistance and Referral Program) link or by accessing the Judicial Council Forms.

Probate Court Conservatorship FAQs


No. If you want to become conservator of the estate, you must petition for that. You can do it at the same time as you file your petition for conservatorship of the person or you can file a separate petition later.

Yes. An LPS conservatorship is only for people who are seriously mentally ill and need special care (usually placement in a locked facility and/or very powerful drugs to control behavior).

But, if a person suffers from dementia and needs special drugs to control the dementia, they may need a probate conservatorship, not an LPS conservatorship.

Yes. A limited conservatorship is a type of probate conservatorship for people who are developmentally disabled.  Developmentally disabled people can usually do many things a conservatee cannot do. So, the Court limits their conservators’ powers. Read more about limited conservatorships.

The person who wants to be a conservator can file. Others can file too, like a spouse, a relative, a state or local government agency or any other interested person or friend. Even the person who will be the conservatee can file, but that is extremely unusual.

Before you file, find out if someone else is already planning to file a petition.

The law has a system for choosing the conservator. It gives preference to the person at the top of the list, then moves down:

  • Spouse
  • Adult child
  • Parent
  • Sibling
  • Any other person approved by the Court.
  • Public Guardian

If the person closest to the top of the list does not want to be conservator, s/he can nominate someone else.

A private professional fiduciary may be appointed as conservator. Private professional fiduciaries charge fees. If the person who needs help can’t pay the fees and there is no suitable family friend or relative to serve, the Public Conservator/Guardian may be appointed.


The Court can sometimes appoint the Public Guardian as conservator. This usually happens when someone makes a referral. Referrals can be made by:

  • Adult Protective Services (APS),
  • A relative,
  • A neighbor,
  • A doctor,
  • A police officer,
  • The Court, or
  • Another interested person.

It depends.

If you are a conservator of the estate only, no.
If you are a conservator of the person, you can supervise the conservatee’s routine medical care unless s/he does not want you to.

If there is a medical emergency, you can supervise the conservatee’s care even if s/he objects. If the conservatee does not want medical treatment s/he needs, you can ask the Court for the power to give informed consent for the conservatee. This lets you authorize treatment even if the conservatee refuses.

If the conservatee is clearly unable to give informed consent, because of a stroke, dementia or some other problem that makes communication with the doctor impossible, the doctor will probably fill out a declaration for you to submit to Court. If the Court approves your request, you will be able to make most medical decisions without the Court’s permission.

But, if the conservatee has dementia and needs to be in a secure long-term care or residential care facility, or needs special drugs to treat the dementia, you must ask the Court for permission to have the conservatee confined, or to administer these drugs.

To ask the Court for these special medical powers, a physician or licensed psychologist must fill out the Capacity Declaration - Conservatorship form GC-335, which you must then file with the Court. This is a state Judicial Council form. If the conservatee’s needs change, you can always file a new petition to ask for the powers you need.

If you are the conservator of the estate, you control the conservatee's finances. But, the conservatee still has the power to make a Will.

The Court will let you make a Will if:

  • the conservatee is too sick to make a Will or estate plans, or
  • the conservatorship was established because someone was taking advantage of the conservatee or exerting undue influence on him/her.

The court investigator gives neutral information about your case to the judge. The investigator will call you and set up a visit with you and the proposed conservatee. Sometimes, s/he will meet with you and the proposed conservatee more than once.

The Court wants the investigator to:

  • Have a private interview with the proposed conservatee.
  • Explain how the conservatorship will change his/her life.
  • Explain what will happen at the hearing.
  • Explain about the proposed conservatee’s right to object to the conservatorship, to have an attorney, to have a different conservator and to have a trial by jury if s/he wants it.
  • If the proposed conservatee does not have the ability to understand or to give an opinion, the investigator will decide if a lawyer should be appointed to represent him/her
  • Review the petitioner’s Confidential Supplemental Information form and get more information if needed
  • Find out if the proposed conservatee is willing and able to come to the hearing. The investigator is allowed to look at the proposed conservatee’s confidential medical records.
  • See if the proposed conservatee is able to fill out an affidavit of voter registration.
  • Write a confidential report for the Court and send a copy to the conservator and the conservator’s attorney.
  • Make recommendations to the judge about your case.
  • For more information on the investigator’s duties, see Probate Code § 1826.

Yes. In a year, or in some cases sooner, the investigator will review your case again to make sure you are fulfilling your responsibilities as conservator and that the conservatee’s rights are being upheld. After the first year visit, the investigator will visit the conservatee every 2 years, or as often as the investigator feels necessary.

If the investigator thinks there may be a problem, s/he will write a report and ask the judge to appoint a lawyer for the conservatee. This may start the legal process to remove or replace a conservator.

The investigator will also visit the conservatee and make a report if:

  • The temporary conservator wants to move the proposed conservatee out of his/her residence.
  • The conservator petitions for exclusive authority to make medical decisions for the conservatee, especially if s/he is asking for special powers to take care of the needs of a demented conservatee.
  • The conservator wants to sell the conservatee’s home (or former home).

The court investigator will explain the implications of these situations to the conservatee. S/he will then write a report to the Court with his/her recommendations.

You must be sure that establishing a conservatorship is the only way to meet the person’s needs. If there is another way, the Court will not grant your petition.

You may not need a conservatorship if the person who needs help:

  • Can cooperate with a plan to meet his/her basic needs.
  • Has the capacity and willingness to sign a power of attorney naming someone to help with his/her finances or healthcare decisions.
  • Has only social security or welfare income every month and the Social Security Administration can appoint you Representative Payee. The Representative Payee is the person the beneficiary allows to receive Social Security checks in their name on behalf of the beneficiary.
  • Is married and the spouse can handle financial transactions. The property must be community property or in joint accounts.
  • If you are asking for a conservatorship of the person only (not the estate) you must have a physician or licensed psychologist fill out a Capacity Declaration - Conservatorship GC-335 form .
  • If you are asking for a conservatorship of the estate only (not the person), you must have a physician or licensed psychologist fill out a Capacity Declaration - Conservatorship GC-335 form .
  • If you are asking for conservatorship of the person AND the estate, you must have a physician or licensed psychologist fill out a Capacity Declaration - Conservatorship GC-335 form .

Probate Court Guardianship FAQs

Answers to the questions listed below, as well as other information can also be found in the Duties of Guardian form, one of the forms provided in the Guardianship Packet at the Civil Clerk’s Office. 


You may wish to seek legal advice before petitioning the court for guardianshipYou will need to petition the court for guardianship and attend a hearing on the matter.  For assistance with the completion of the forms you may contact the Self Help Assistance and Referral Program (SHARP), located on the second floor of the Courthouse. (Telephone 527-8649 for an appointment.)  An investigation by the Court Investigator will be conducted, which will include site visit(s), criminal background history, and may include contacts with schools, employers, relatives, friends and/or neighbors.  (Note: Past law enforcement issues will not necessarily prevent you from being eligible for appointed as guardian.)

You do not have to allow visitation unless there is a Court Order for visitation.  Without such order, visitation is at the discretion of the guardian only and should be allowed only when it is safe and in the best interests of the child, not the parents.  The parents’ rights are suspended for the duration of the guardianship.    If you wish to allow visitation but feel certain restrictions are necessary to protect the minor(s), you may petition the court for a visitation order.

Do not return the minor(s) to the parents without Court approval.  You or a parent may petition the Court to terminate the guardianship, or you may wish to request court approval to continue as guardian while allowing the minor(s) to reside with the parent(s) under certain conditions, through court approval.  Forms to terminate the guardianship are available at the Civil Clerk’s Office.

Yes, but you must inform the court within 30 days of any new street and mailing address.

You do not have the right to move the minor(s) out of the State of California without first obtaining this Court’s permission.  Out of State moves involve the noticing of appropriate parties, petitioning the Court for approval, and possible court investigation.

As guardian you have full legal and physical custody of the minor(s) and are responsible for all decisions relating to the minor.  The parents’ rights are suspended – not terminated- and they no longer have legal authority to make decisions for the child(ren) while a guardianship is in place.

  • You may wish to contact a local attorney familiar with probate guardianships;
  • Read through a copy of the Duties of Guardian included in the guardianship packet;
  • You may visit the Law Library and read the sections in the Probate Code pertaining to guardianships.
  • As mentioned above, Self-Help Assistance & Referral Program (SHARP) is a resource available free of charge.
  • Court clerks or deputy clerks are restricted from providing legal advice (Sections 24004 and 68082 of the Government Code).