A conservatorship is a legal right given to a person to be responsible for the assets and finances and/or the physical care of a person deemed fully or partially incapable of providing these necessities for himself or herself. In some jurisdictions, a conservatorship may be referred to as a “guardianship of the estate” or by some similar alternative name. It may be necessary to petition a court to appoint a conservator for persons:
- Who have physical or mental problems that prevent them from managing their own financial affairs;
- Who have no person already legally authorized to assume responsibility for them; and
- Where other kinds of assistance with financial management will not adequately protect them.
A conservatorship can be set up after a judge decides that a person (called the “conservatee”) can’t take care of himself or herself or his or her finances. Often, this is because the person is in a coma, is suffering from advanced Alzheimer’s disease, or has some other serious illness or injury. Sometimes, a conservator only manages a conservatee’s financial affairs. This is a conservator of the “estate.” However, a conservator may also manage a conservatee’s daily activities. This is a conservator of the “person.”
In the sections that follow, we will be addressing some of the most common questions that our clients ask us when they seek legal document preparation assistance from We The People.
1. What Is Conservatorship?
Conservatorship is a legal concept and a type of court case in which a judge appoints either a person or an organization to be responsible for the care of another adult. This adult is someone who is deemed unable to care for himself or herself and/or his or her finances. There are a few different types of conservatorships, and the duties of a conservator can vary widely based upon the capacity of the adult who requires care. Various people and entities can file for conservatorship, and at We The People, we can help you complete the paperwork you need to establish this type of legal relationship.
2. What Are the Steps for How to Get Conservatorship?
As with many legal processes, setting up a conservatorship is often a long and complex endeavor. This is why so many people trust We The People to assist them with their conservatorship needs. The process can be initiated by a person’s family member, relative, friend, an interested person, a public officer, or a government agency. After filing the necessary paperwork with the court, the petitioner must file a petition with the court clerk and inform the proposed conservatee. The next step is informing the conservatee’s relatives in writing. From there, a court investigator conducts an investigation of the circumstances, and a hearing takes place for a judge to make a decision about the conservatorship.
3. How Does Conservatorship Work?
A probate court can appoint a person to be a conservator of a person, of the person’s estate, or both. The role of a conservator of a person is to ensure that the person has the food, shelter, clothing, and medical care that he or she needs. This may include making medical decisions for the incapacitated person. Other duties may include arranging for housekeeping, transportation, and recreation. On the other hand, a conservator assigned to only handle a conservatee’s estate will only address financial matters, such as paying bills and collecting income. Other conservator duties may include investing the conservatee’s money and managing his or her budget.
4. Does Conservatorship Override Power of Attorney?
While a power of attorney arrangement is formed before a person becomes incapacitated, a conservatorship is formed after it occurs. Even with a conservatorship in place, a durable power of attorney may continue to be in effect. The court will consider the current existence of a power of attorney before appointing a new conservator, and both relationships can coexist. However, the court may approve a conservatorship to handle aspects of care that a power of attorney does not address. While conservatorship can, in fact, override a conflicting power of attorney arrangement, a power of attorney often eliminates the need for a conservatorship altogether.
5. What Is the Difference Between Guardianship and Conservatorship?
Guardianship and conservatorship are both ways to assist persons with the additional care they need. Guardianship involves having full control over a person’s life, including making legal, financial and healthcare decisions. Meanwhile, a conservatorship may be more limited and only include handling the financial matters of another person. The legal implications of what a guardian or conservator can do vary from state to state, but in general, the role of a conservator is more limited, specific, and perhaps even only temporary. Both legal arrangements require a significant amount of paperwork and filing fees.
6. Does Conservatorship End at Death?
Although conservatorships are considered to be permanent arrangements, death is one reason why a conservatorship may end. It is important that a relevant party inform the court immediately upon a conservator’s death because it may be necessary to file a final account of his or her financial matters. Other reasons that a conservatorship may end include a situation in which the conservatee regains his or her abilities to reassume personal control. The arrangement may also end if the conservatee expends all financial assets, if the court removes the conservator for inadequately upholding obligations, or if the conservator resigns for personal reasons.
7. What Is Court Appointed Conservatorship?
All conservatorships in the U.S. must go through a stringent legal process and be approved by a judge. A spouse, domestic partner, relative, state or local entity, friend, or the proposed conservatee himself or herself can initiate a conservatorship. After going through the steps for how to get conservatorship describe above and getting to the hearing phase, a judge will grant the petition and appoint a conservator. This involves filing an order and issuing Letters of Conservatorship. In many cases, a surety bond must also be filed if there is an estate. Once the court appointed conservatorship is in place, the conservator may assume the powers authorized by law, but he or she must also report back to the court for ongoing reviews.
8. What Are the Different Types of Conservatorship?
There are a few different types of conservatorships that may be relevant to your particular situation. For example, a general conservatorship is a type of probate conservatorship that often involves an elderly adult or a younger person who has been seriously injured. Another type of probate conservatorship is the limited conservatorship, which is often used for adults who have developmental disabilities. The level of care in this type of conservatorship is lower than in a general conservatorship. Meanwhile, Lanterman-Petris Short (LPS) conservatorships are utilized to care for adults who need extra care because of serious mental illnesses and often include provisions for restrictive living arrangements, mental health treatments, and are initiated by a government agency.
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