Conservators have court-ordered power and responsibility to oversee the affairs of those that are no longer able to make their own decisions concerning finances or healthcare. If the debilitated individual planned in advance and signed durable powers of attorney concerning finances and healthcare, that individual is not going to require a conservator since the person named in those documents can take control. Nevertheless, when no planning has taken place — a general situation — then members of their family must petition a court to name a conservator or guardian.
Conservatorships vs. Adult Guardianships
In many states, conservatorships are referred to as adult guardianships, but the terminology means somewhat the same thing. For the rest of this post, it is going to use the terminology “conservatorship” in reference to conservatorships and adult guardianships.
When a court appoints an individual to take care of financial affairs, that person is typically known as a “conservator of the estate,” whereas an individual in charge of medical and personal decisions is a “conservator of the person.” A debilitated individual might need just one kind of representative, or both. The same individual can be appointed to take both duties. Both kinds of conservators are overseen by and held responsible to a court.
Typically, conservatorships are arranged for people that are in comas, suffer from progressive Alzheimer’s disease, or have other serious ailments or injuries.
Pros and Cons of a Conservatorship
Conservatorships are lengthy and costly; they usually require court hearings and the continual assistance of a lawyer. The documents can also be a hassle, since the conservator is required to keep detailed records and file court papers regularly.
All court proceedings and documentation are a matter of public record, which can be an unwanted encroachment for those that value their independence and privacy.
Conservators are dependent on court supervision, which offers a powerful safeguard for a debilitated adult’s property. To hinder conservators from mishandling the property or otherwise exploiting the individual they are assisting, a lot of courts require conservators to present regular reports describing their actions. A lot of courts also require the conservator to seek consent prior to making significant decisions, like selling a property (for financial conservators) or ending life-support (for conservators managing healthcare decisions).
Additionally, a financial conservator is required to frequently post a bond (a type of insurance policy that safeguards the conservatee’s estate from mismanagement). The bond premiums are paid from the assets of the conservatee — and are a needless cost when the conservator is capable and dependable.
From time to time, nevertheless, a conservator is going to mishandle a conservatee’s assets or make poor decisions concerning the conservatee’s healthcare. Even though each state has regulations and procedures designed to hinder such abuses, few have the resources to keep tabs on conservators and follow up when they spot problems. A lot of cases of ignorance or mistreatment go overlooked.
Avoiding a Conservatorship
The leading way for avoiding a conservatorship is for an elderly individual to prepare durable powers of attorney prior to a health emergency happening. In this manner, someone pre-selected is going to get involved for making medical and financial decisions when required.
The Court Process
Anybody – including the suggested conservatee, relatives, and friends — may disapprove of the conservatorship generally, or to the particular choice of conservator. Anyone that wants to block a conservatorship is required to file paperwork with the court, give notice to all interested parties (the suggested conservatee, relatives and most likely trusted friends), and be present at a legal hearing.
When someone starts conservatorship proceedings, a judge must hear testimony on the person’s mental ability. Should the judge determine that a conservator is required, they are going to appoint one — usually, a spouse or an adult child.
It’s unusual, but sometimes numerous relatives or friends may contend for the role. If that occurs, the judge follows predilections established by state law. A lot of states give priority to the conservatee’s spouse, adult brothers and sisters, registered domestic partner, grown children, or other blood family members. However, a judge that determines another person is best for the role may choose that individual.
Lacking strong evidence of what the conservatee would have wished for, it is doubtful that a non-relative would be named conservator should a relative be available to serve. Consequently, conservatorship processes may cause great distress should an estranged family member be chosen as conservator over the conservatee’s partner or trusted friend. When no one appropriate is available for serving as conservator, the judge might name a public or other professional conservator.
How Conservators Are reimbursed
Conservators are compensated for costs, and are paid for their services, out of the assets of the individual they are caring for. Payments are required be “rational” through the court. Usually, payments are just made to public or professional conservators, but a relative that has been named conservator may also seek reimbursement by petitioning the court.
Financial Support for an Individual Under a Conservatorship
A conservator does not need to support the conservatee, just to oversee the conservatee’s own assets and for making personal decisions on their behalf. However, the financial conservator has the responsibility to pursue all financial benefits and coverage for which the conservatee may be eligible for. These benefits might include Social Security, AV benefits, medical insurance, pension and/or retirement benefits, disability benefits, welfare, and Supplemental Security Income. When required, close relatives (including the conservator) frequently use their own funds to help support their conservatee.
Terminating a Conservatorship
A conservator must act until the court issues an order terminating this responsibility. This usually occurs when:
- the conservatee passes away
- the conservatee no longer requires this degree of assistance
- in cases of financial conservatorships, the conservatee’s assets are depleted, or
- the conservator resigns or can no longer manage the duties. In this case, the conservatorship itself does not get terminated, but another individual takes over the conservator’s responsibilities.
Nolo. (2016, August 17). Conservatorships and Adult Guardianships. www.nolo.com. Retrieved August 31, 2022, from https://www.nolo.com/legal-encyclopedia/conservatorships-adult-guardianships-30063.html
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