Conservatorship

In some jurisdictions, a conservatorship may be referred to as a "guardianship of the estate", or by some similar alternative name.

There are many circumstances where an individual is still able to live an independent life, but may require assistance with their assets due to failing health or disability. Therefore it is not unusual for a petition to be made for the appointment of a conservator, even where the allegedly incapacitated person does not require a guardian.

When is a Conservatorship Required?

It may be necessary to petition a court to appoint a legal conservator for individuals:

  • Who have physical or mental problems that prevent them from managing their own financial affairs;
  • Who have no individual already legally authorized to assume responsibility for them; and
  • Where other kinds of assistance with financial management will not adequately protect them

How is a Conservator Appointed?

The precise procedure will vary to some degree from jurisdiction to jurisdiction. The typical steps are as follows:

  • The individual seeking the appointment of a conservator files a petition with the probate court for the jurisdiction where the allegedly legally incapacitated person resides. This petitioner must be an "interested party" - a relative or another person or qualified agency, seeking to become the conservator. A petition is ordinarily accompanied by medical affidavits or other a sworn statements which evidences the individual's incapacity, and identifies the person/persons who desire to be named as conservator or who requests the appointment of a conservator.
  • If no attorney represents the allegedly incapacitated individual, the court will assign an attorney to represent the individual through the court process. This attorney is to meet with the alleged incapacitated person, inform the individual of their legal rights, review all medical reports and report to the court at the court hearing.
  • If the allegedly incapacitated individual contests the appointment of a conservator, a trial is scheduled during which sworn testimony will be given, and at the conclusion the judge will decide if the petitioner met the required burden of proof for the appointment of a conservator. The allegedly incapacitated individual is represented by counsel throughout this process.
  • If the allegedly incapacitated individual consents to the petition the conservatorship will be appointed.
  • If a conservator is appointed, the judge will issue the conservator legal documents (often called "letters of authority") permitting the conservator to act on behalf of the legally incapacitated individual.

A conservator will ordinarily receive compensation, subject to court oversight, for performing duties for the estate. This is often charged on an hourly basis, and is ordinarily paid from the estate of the legally incapacitated individual's estate.

What are a Conservator's Duties?

The first duty of a conservator is to take an inventory of the legally incapacitated individual's assets and to report these assets to the court.

The conservator:

  • must open a separate custodial checking account reflecting the conservatorship (e.g. in the name of John Doe, as Conservator for the Estate of James Smith);.
  • accept all income for the individual into this custodial account and made all payment for the legally incapacitated individual from this account;
  • collect all debts owed to the legally incapicated individual;
  • manage all investments, business ownerships, insurances and make decisions on the sale of assets (e.g. home) not being used by the individual - with court authority is necessary;
  • file an annual report to the court and all interested parties attaching copies of all beginning and ending banking and investment account.

If the legally incapacitated individual is capable of participating in financial decisions, the conservator is ordinarily required to permit the legally incapacitated individual to participate to the extent they are able.

A conservator may be required to post a bond by the probate court. The fee for the bond is paid out of the legally incapacitated individual's estate.

The Purpose of Court Supervision

The court supervises the conservator's actions by requiring that permission be obtained in advance of certain transactions, and through annual accountings, in order to ensure that the legally incapacitated individual's assets are being properly managed, bills are being paid, nobody is misappropriating funds, and the estate is not being wasted.

How Can a Conservatorship Be Ended?

A conservatorship can be terminated by the court which created it. This ordinarily happens if the legally incapacitated individual recovers from the incapacity that necessitated the conservatorship. A particular conservator's role maybe terminated by the court or by resignation, in which case the court will ordinarily appoint a successor conservator to take over the management of the legally incapacitated individual's asset. The conservator also ends upon the death of the legally incapacitated individual.