A Conservator is someone appointed by a court to manage the financial affairs and property of someone who is unfit to manage his or her own affairs due to incapacity, disability, mental incompetence or physical infirmity, called the Conservatee or Incapacitated Person. See power of attorney for financial decisions.The Conservator must file an inventory of the Conservatee’s property and an annual or periodic accounting of the Conservatee’s finances. The Conservator is accountable for any mismanagement of the Incapacitated Person's property. The court may require the Conservator to post a surety bond to protect against any losses to the Conservatee’s property arising from the Conservator’s mismanagement. See executor bonds.
Serving as a Conservator can be very time consuming and stressful due to the number and types of reports and conservatorship forms that must be submitted to the court during the term of the Conservatorship.
A Conservatorship is also sometimes referred to as Guardianship. While Guardianship usually relates to caring for the person and managing all the person’s affairs rather than just finances, some courts use the term Guardianship to refer to an individual appointed to manage the assets and property of the Incapacitated Person. This type of Guardian may be called a Guardian of Property. Ultimately, the court decides the scope of the Conservator’s authority and whether that is to oversee the person, his finances, or both.
Rights of the Incapacitated Person
The Incapacitated Person or Conservatee must be provided notice of the hearing on the petition and can be represented by a lawyer at that hearing. The Incapacitated Person has the right to contest the petition for conservatorship. If the conservatorship is granted, then depending on the scope of the conservatorship order, the conservatee may still retain several rights even during the conservatorship, including the right to:
Have an attorney;
Ask for the conservatorship to be terminated;
Ask the judge to change conservators; and
Decide how to spend any personal allowance.
How to Avoid a Conservatorship
In most circumstances it is possible to avoid a Conservatorship by granting a durable financial power of attorney to someone you trust while you still have capacity. A financial power of attorney costs much less to execute and administer than going through the process of a petition for Conservatorship.Another step you can take to avoid a Conservatorship is to place your assets into a Living Trust and appoint a successor trustee to manage the trust assets in the event of your incapacity. See our free Guide to Living Trusts for more information.
It is also important to make a durable power of attorney for health care or health care proxy to appoint someone you trust to make health care decisions for you if you become incapacitated. See Health Care Power of Attorney.
When is a Conservatorship Used?
If a person becomes incapacitated and unable to properly manage his or her financial affairs, an interested party can go to court to seek authority to have a Conservator appointed to manage the person’s affairs. The individual seeking the Conservatorship must present documentation and evidence to show such person is incapacitated and unable to properly manage his own financial affairs and property.
How is a Conservatorship Granted?
A Conservatorship is initiated by someone filing a petition for Conservatorship with the court. This is usually filed in the jurisdiction where the Incapacitated Person resides, although in some states it can be filed in the jurisdiction where the person’s property is located. Conservatorships are usually filed in probate court, but in some states, Conservatorships come under the jurisdiction of other types of courts.
The petitioner must give notice of the hearing to the Incapacitated Person, the person’s heirs, and any other interested parties. The court may appoint a guardian ad litem to interview the Incapacitated Person. The guardian ad litem may make recommendations to the court regarding whether a Conservatorship is necessary. A report from a physician that has examined the person may also be required to be filed within a certain number of days after the petition is filed.
If the court grants the Conservatorship, the court will issue Letters of Conservatorship or a similar type of order or other legal document outlining the Conservatorship and its terms. For conservatorship requirements by state and information on how to obtain free conservatorship forms, see state-specific info.
Who Can Petition for Conservatorship?
Anyone with an interest in the estate of the Incapacitated Person can petition for a conservatorship. Also, any person who would be affected by the incompetent management of the finances or property of the Incapacitated Person can petition for a conservatorship. A nursing home administrator or a person with a similar relationship to the Incapacitated Person can petition the court for a Conservatorship. An Incapacitated Person can also file for a Conservatorship over his own affairs if he feels he cannot manage them properly due to mental illness, poor health or another type of incapacity.
Who Pays the Costs of a Conservatorship?
The fees, costs, and expenses for a Conservatorship are paid by the Incapacitated Person, out of his or her estate or property. The Conservator may be paid for his services and can consult a lawyer if necessary.
If you become incapacitated and do not have a durable financial power of attorney in place, it can be expensive for both you and your loved ones if a petition for Conservatorship is filed. Conservatorship proceedings can also be extremely time consuming and stressful for all involved. For information on making a power of attorney, see power of attorney forms.
How Long Does a Conservatorship Last?
A conservatorship can be in effect for a very short time, such as until the conservatee’s mental or physical health improves, or it can last the remainder of the conservatee’s life. The conservator can ask the court to review the conservatorship. The conservatee can also petition to end the conservatorship. To determine whether a conservatorship should end, the court holds a hearing and then makes a decision based upon testimony and other information presented. If not terminated earlier by a court, a conservatorship ends when the conservatee dies.
What is a Limited Conservatorship?
A Limited Conservatorship is only partial Conservatorship. For example, if someone is in poor physical health and is capable of managing some of his affairs but not others, the court may grant a Conservator authority to manage a limited scope of matters for the Conservatee.
What is a Temporary Conservator?
A Temporary Conservator is someone granted temporary authority to act until a Permanent Conservator is appointed.