Conservatorship

What is a Conservatorship?

 

A Conservatorship is a Court-ordered relationship where one person manages the financial and/or medical decisions of another.  The manager is called a Conservator.  The person who needs help is called a Conservatee.

What is a Conservatorship of the Person?

A Conservatorship of the Person is where the Court orders someone (the Conservator) to be in charge of the Conservatee's healthcare decisions.  The Court will decide what powers the Conservator has and when the Conservator must ask for the Court's permission.  For example, the power to remove the Conservatee from life support is typically a power that you must ask the Court for if the time comes.  

What is a Conservatorship of the Estate?

A Conservatorship of the Estate is where the Court orders the Conservator to be in charge of the Conservatee's finances.  The Court will decide what powers the Conservator has.  The Conservator of the Estate has a fiduciary duty to the Conservatee.  This means that every decision the Conservator makes with the Conservatee's finances or property must be made with the best interests of the Conservatee in mind.

When is a Conservatorship Necessary?

A Conservatorship may be necessary when someone loses the mental capacity to make medical or financial decisions for themselves.  However, if the person has Estate Planning documents in place prior to losing capacity then a conservatorship may not be necessary.  These documents are a Trust, Power of Attorney, Advanced Healthcare Directive, or a Healthcare Power of Attorney.  However, just because someone has been diagnosed with "dementia" doesn't mean we can no longer do proper Estate Planning.  Great care and time must be taken to determine if a conservatorship is necessary or if there is alternative planning we can implement.

Are there any ways to avoid a Conservatorship?

Yes!  Proper Estate Planning documents in place can avoid a conservatorship.  A Durable Power of Attorney, an Advanced Healthcare Directive, and a Trust can all avoid the need for filing for a Conservatorship.  

Can you object to a Conservatorship?

If you believe a Conservatorship is not necessary, or if you believe the person who filed to be the Conservator is not a suitable candidate, you can object to a Conservatorship.  You can do this by filing an objection with the Court or by filing a competing petition to be the Conservator.  

Who should be the Conservator?

The Conservator should be someone who is willing and able to be responsible for the medical and/or financial decisions of the Conservatee.  Often times this is an adult child or other family member.  If there is no family member that can or should be the Conservator, a Professional Fiduciary may be the best choice.  A Professional Fiduciary is an individual that is a Conservator, Trustee, and Attorney-in-Fact for several individuals.  

What is the process to obtain a Conservatorship?

The process to obtain a Conservatorship first begins by determining if a Conservatorship is the best choice and the least restrictive alternative to helping an individual.  This determination is made by our firm discussing the situation with the family and the Proposed Conservatee as well.  If the determination is made that a Conservatorship is necessary and the best choice, a Petition for Conservatorship is filed with the Court.  The Court will then make a determination whether the Petitioner (the person who filed the Petition for Conservatorship) is appropriate to help the Conservatee.  After this process Letters of Conservatorship, or a Court Order, is issued and the Conservator can now help the Conservatee.  

What are the ongoing duties of a Conservator?

In addition to having a fiduciary duty to the Conservator, meaning keeping their best interests in mind, there are ongoing duties the Conservator has.  First, the Conservator must account to the Court after the first year of being the Conservator.  This means telling the court what has occurred with the Conservatee's finances for the past year.  The Conservator must then account every two years to the Court until the Conservatorship is ended.  The Conservator also must ask the Court for permission to do certain things such as sell the Conservatee's real property, move the Conservatee out of state, remove the Conservatee from life support, as well as other actions.