Introduction to Conservatorships
A conservatorship is a proceeding where court appoints a responsible person (called a conservator) to care for another adult who cannot care for him or herself physically or financially (called a conservatee).
There are two kinds of conservators. A conservator of the person cares for and protects a person when the court decides that the person can no longer do it. A conservator of the estate handles the conservatee’s financial matters, such as paying bills and collecting a person’s income. The court can order a conservator of the person or estate or both.
If there are existing valid and undisputed power of attorneys for health decision making and financial a management, a conservator is usually not necessary. The conservator once appointed is responsible to the court and must act in the best interests of the conservatee.
When Is A Conservatorship Needed?
If someone has an illness, such as Alzheimer’s disease or an accident that leaves them mentally or physically incapacitated, they may need to have a conservator make caregiver decisions or manage their affairs. Typically, a conservator is appointed when a court decides that a person is physically or mentally incapable of managing their own affairs or unable to resist undue influence or fraud.
In a conservatorship of the person, the conservator arranges for the conservatee’s care and protection. The conservator determines where the conservatee will live and is in charge of health care decisions. Some decisions by the conservator require prior court approval.
In a conservatorship of the estate (money and property), the conservator is responsible for the management of the estate. One reason the court will step in and appoint a conservator is to prevent elder financial abuse. The court will examine all of the financial decisions made by the conservator which must account for all financial transactions.
Who Can File To Become Conservator?
There is statutory preference for the court to choose a conservator who is a person nominated by the prosed conservatee, the spouse, adult child, parent, or sibling. In some cases, the court appoints a professional fiduciary if there is a dispute as to who should be appointed.
How Is A Conservatorship Established?
A petition for conservatorship is filed with the court. Notice is given to relatives and a hearing is held to determine if the proposed conservatee needs someone to handle his or her affairs. A court investigator will interview the proposed conservatee, family members and sometimes other people. The investigator reports their findings to the court and makes a recommendation concerning whether or not a conservatorship is needed. Legal counsel is appointed for the proposed conservatee as well. If the court determines that the proposed conservatee is not able to manage their physical or financial needs or cannot resist undue influence, a conservator is appointed.
The court usually appoints a relative to be conservator. Once appointed, the conservator will submit a list of assets of the estate and debts to the court. The conservator will develop a plan of conservatorship. The court must approve the conservator’s accounting and acts of the conservator.
What Rights Does A Conservatee Have?
A conservatee does not lose all rights. They can still have a say in important decisions. They have a right to be treated with understanding and respect, have their wishes considered, and be well cared for. In general, unless a court determines otherwise, conservatees keep the right to make or change their will, get married, get mail, have an attorney, have an allowance, and make their own health care decisions.
What Is The Duty Of The Conservator?
The conservator has a duty to make reasonable investments, keep assets separate from anyone else’s property, and use interest-bearing accounts and other investments. The conservator is not allowed to pay himself or an attorney from the conservatee’s funds without court approval. However, the conservator is entitled to request the court order reimbursement of attorney fees form the conservatee’s assets to establish the conservatorship and act as conservator. The conservator is not allowed to give away the estate or borrow money without court approval.
What Is A Temporary Conservatorship?
If there is an emergency such as to protect the conservatee from elder neglect, abuse and financial exploitation, the court orders a temporary conservatorship. The temporary conservator has the same duties and powers that a regular conservator has except that the conservatorship will end on the date that a permanent conservator is appointed. A temporary conservator should not make irreversible decisions without informing the court.
What Happens When The Conservatee Dies?
Upon the death of the conservatee, the conservator must account to the court and distribute any proceeds of the estate to an administrator of a probate or to a trustee of a trust.
Are There Alternatives To A Conservatorship?
One option to conservatorship proceedings is a durable power of attorney. A durable power of attorney is an arrangement whereby one person authorizes another to take action on the first person’s behalf as his or her agent. This agent has the authority to conduct business and make health care decisions.
Another option is the living trust. With a living trust, one can decide in advance and appoint the person who would manage assets should one become incapacitated. The trustee has the right to manage assets for the trust without court supervision.
*This booklet is published as a service to our clients. It is merely a summary of the law and is not intended to provide legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon investigation of specific facts.