Rights Retained by a Conserved Person

Rights Retained by a Conserved Person – A “Conservatorship of the Person” is to protect someone who cannot properly provide for his or her own personal needs for physical health, medical care, food, clothing, or shelter. The court appointed Conservator – often a family member or the local public guardian — is granted powers over the care, custody and control of the conservatee (i.e., the conserved person).

The conservatee, however, still retains important rights, including the right to receive visitors, telephone calls and personal mail, unless personally limited by court order, and other personal rights. Moreover, the conservator is required to make sure that the place selected for the conservatee to live is the “least restrictive” appropriate alternative that is available and necessary to meet the conservatee’s needs.

A conserved person can only be denied contact with specific persons when a court order specifically authorizes such restrictions; not simply at the conservator’s discretion. The conservator must either obtain a restraining order against or must modify the conservatorship order to be allowed to prevent contacts with a certain person.

In some conservatorships, the conservator’s duty to protect a vulnerable conservatee against predators conflicts with the conservatee’s retained right to regarding social contacts. There are instances when the conservator legitimately seeks to prevent certain family or friends from contacting the conservatee. There are other instances where the conservator has gone too far.

Recent cases involving family members have drawn publicity to abuses by conservators who unjustly denied family visitations. The family members complained they were even threatened with legal action by the conservator should they persist, and were told to go away by the police. In effect, the family members had no readily available way to regain access to the conservatee.

California law now expressly states that the conservatee retains important rights. Moreover a, “Notice of the Conservatee’s Rights” must be served on certain relatives of the conserved person and to be posted at a skilled nursing home.

Nursing homes may not follow a conservator’s instruction to restrict visitors, phone calls or mail from specified individuals or groups without a court order specifically authorizing the same.

If the conservatee’s retained basic rights are violated, the conservatee and or family may petition the court to replace the conservator. Otherwise, the conservatee can tell the Court Investigator, who reports to the court once a year, that a serious problem exists.

The foregoing, of course, highlights why everyone should use their Advance Health Care Directive to nominate whom they would prefer to act as their conservator, with alternative nominations named, in the event one is needed.