Key Takeaways
- A conservator is a person appointed to manage another individual’s affairs when that person is no longer able to do so for themselves due to incapacity.
- A conservatorship may be a conservatorship of the estate, which focuses solely on financial affairs, or a conservatorship of the person, which involves more comprehensive care, such as coordinating living arrangements and medical affairs.
- A conservatorship is different from a power of attorney arrangement, as a conservatorship is an involuntary arrangement initiated by a court where the protected individual does not maintain the ability to make decisions on their own behalf.
- Responsibilities of a conservator range from managing the financial affairs of the estate to coordinating an individual’s medical care and living arrangements.
Introduction
A conservatorship can be a beneficial arrangement in cases where an individual does not have the mental capacity to care for themselves and make informed decisions regarding their own affairs. A conservator may take on several responsibilities to protect the interests of the conservatee, depending on the type of conservatorship arrangement established by the court.
While a conservatorship can be particularly beneficial for preventing the mismanagement of a person’s assets, there are also several key considerations that should be made before committing to the process. From the process of establishing a conservatorship to the costs involved along the way, there are multiple factors to consider.
Understanding Conservatorships
A conservatorship is an arrangement in which a person, known as the conservator, is appointed to manage the specific affairs of another person, referred to as the conservatee or ward. The goal of a conservatorship is to protect the interests and well-being of the conservatee or ward for whom it is being established.
A person may be entered into a conservatorship if they are deemed to be incapacitated by the court. They may be labeled incapacitated if they have a mental health condition or a condition that affects their cognitive function, such as dementia.
In some states, a conservatorship may also be known as a guardianship, but the definition between these two terms can vary by state. For example, in California, a conservatorship refers to an arrangement where an adult is appointed to make decisions on behalf of an incapacitated adult, while a guardianship is an arrangement where an adult acts for a child. Meanwhile, in Texas, the term “guardianship” refers to an arrangement similar to a conservatorship in other states, where an adult is responsible for overseeing the affairs of another adult.
Types of Conservatorships
The responsibilities of a conservator may vary depending on the specific needs of the individual being represented and the areas of support required. There are two types of conservatorship roles that exist:
- A Conservator of the Person involves managing all of the decisions on behalf of the conservatorship, including daily decisions such as housing arrangements and meals.
- A Conservator of the Estate only involves managing the financial affairs for the conservatee, such as paying bills and managing assets.
Understanding these two types of conservatorships and when they are necessary is important for ensuring the adequate care of the protected person based on their level of need and incapacity.
Legal Framework and Jurisdiction
While a conservator is given considerable responsibility in managing a protected person’s affairs, they must still uphold their duties while complying with careful requirements under the supervision of the court. A conservator may have to ask for court approval before taking specific actions, such as selling the ward’s property to manage expenses. The court will review such large transactions to ensure that they are in the best interests of the ward and their estate.
The conservator will also be responsible for providing an annual report to the court to highlight all transactions and expenditures. These reports are mandatory for demonstrating that the conservator is upholding their duties responsibly and continuing to act in the best interests of the ward. Although a conservator may have considerable freedom in managing a ward’s affairs, court oversight is still an essential part of the process.
Responsibilities of a Conservator
The responsibilities of a conservator will depend largely on the needs of the protected person, as well as whether the role is a conservator of the person or a conservator of the estate.
Responsibilities of a Conservator of the Estate
A conservator of the estate’s primary focus surrounds managing the financial affairs of the conservatee. The conservator will be responsible for some of the following ongoing tasks related to the conservatee’s finances:
- Filing an annual accounting of the conservatee’s assets with the court
- Maintaining insurance policies for the conservatee’s assets
- Paying the conservatee’s bills
- Paying the conservatee’s taxes
- Managing the conservatee’s assets in a beneficial manner, such as placing them in investment accounts
- Maintaining detailed records of all financial transactions made on behalf of the conservatee
- Consulting experts like tax professionals or realtors for support in managing the conservatee’s assets
It’s important to note that a conservator of the estate will not have to make any payments out of their own pocket—instead, they will use funds out of the ward’s estate to handle them.
Responsibilities of a Conservator of the Person
The responsibilities of a conservator of the person will be more involved than those of a conservator of the estate. A person in this role will be responsible for handling various daily tasks in support of the conservatee’s well-being, managing their holistic care rather than just their finances.
A conservator of the person will be responsible for the following tasks:
- Coordinating the medical care of an individual
- Coordinating the conservatee’s living arrangements, such as an assisted living facility
- Ensuring the conservatee has housing and shelter
- Arranging for daily needs, like meals, clothing, housekeeping, and transportation
- Planning for the conservatee’s well-being
Like a conservator of the estate, a conservator of the person will also have access to funds from the ward’s estate so that they are not obligated to pay out of pocket.
Qualifications and Selection of a Conservator
It’s crucial that an appointed conservator is a trusted individual or organization so that the ward’s affairs are handled with meticulous care. When selecting a conservator, consider the factors below.
Who Can Be a Conservator?
Any responsible adult who meets state requirements for age and mental capacity, or a trusted organization, can serve as a conservator. Often, a conservator is a family member or friend who is close to the ward. However, a conservator may also be an attorney, a third-party professional, or an organization. For example, there are organizations that specifically manage financial resources for protected individuals in conservatorships.
Appointment Process
A conservator must be appointed by the probate court to manage a ward’s affairs. A conservator may need to secure a bond to be appointed—this bond acts as collateral insurance to ensure that they manage their role responsibly and within the best interests of the protected person. If the conservator fails to fulfill their obligations, an interested party may make a claim against their bond.
It’s important to note that a conservatorship differs from a power of attorney arrangement, especially when it comes to the appointment process. A power of attorney is a voluntary arrangement, but a conservatorship, generally, is not. While the interested party in a power of attorney arrangement chooses who will serve as the agent, a conservator does not make that final decision. A conservatee may be able to offer input on who they prefer to serve as the conservator, but the final decision is confirmed and approved by court order.
Ethical Considerations
Unfortunately, given the extensive responsibilities handled by a conservator, the position is subject to being taken advantage of. A conservator should be certain that they fully understand their duties and the needs of the individual they are representing to ensure that they are carrying out their role responsibly. Family members interested in the arrangement must also be vigilant to ensure that the conservator is upholding their commitment to the ward’s well-being.
The conservator is also responsible for protecting all of the conservatee’s assets and ensuring that the individual is not taken advantage of. If a family member or friend suspects any acts of wrongdoing by the conservator, they may contest the appointment of the conservator.
Challenges Faced by Conservators
Being a conservator is no small role, and often involves considerable responsibility, which can lead to possible challenges. Between navigating the legal system and possibly contentious family dynamics, a conservator must be aware of the following.
Legal and Financial Challenges
Managing an individual’s affairs is a significant responsibility with serious implications, meaning it can come with several potential challenges. A conservator may face challenges while serving in their role that range from determining the best actions for the conservatee to ensuring legal compliance.
Common challenges include:
- Understanding all necessary responsibilities
- Avoiding a breach of duties
- Accounting for all of a conservatee’s assets
- Determining the right actions for ensuring the ward’s well-being
- Having enough financial resources to carry out the actions needed to support the ward
- Facing potential backlash from family members for actions taken on behalf of the ward
- Ensuring careful compliance with annual reporting requirements to the court
- Disproving allegations of mismanagement of the ward’s estate
It’s advisable to engage the support of a conservatorship attorney who can support you in understanding legal requirements and navigating the various legal challenges that can arise. An attorney can offer guidance in fulfilling essential duties like record-keeping, court filings, and navigating disputes.
Navigating Family Dynamics
Family dynamics can have several potential effects on a conservatorship, depending on the unique nature of the case and the parties involved. In any case, concerned family members should educate themselves on the responsibilities of a conservator to ensure they can hold the conservator accountable for responsibly carrying out their role.
Ultimately, a conservatorship is an arrangement designed to protect the ward’s well-being and interests. Generally, a family is aware of the importance of this role and will advocate for the protected person’s best interests by appointing a trusted individual as the conservator. If family members have concerns about an individual’s ability to serve in the conservator role, they may contest the conservatorship. A contested conservatorship will likely result in additional court appearances and possibly require expert testimony to provide evidence to resolve the dispute.
Meanwhile, on the other side of the spectrum, malicious actors may resist a conservatorship if they are taking advantage of the incapacitated individual to some degree. In such cases, a conservator will need to demonstrate the necessity of their appointment and provide proof of the individual’s incapacity to the court. A conservatorship attorney can be a valuable resource for resolving conflicts if there are any disputes that arise during the management of a protected individual’s affairs.
Cost of a Conservatorship
Establishing a conservatorship can be particularly costly when factoring in all the associated expenses, from the initial court petition to the attorney’s fees. Arranging a conservatorship often requires several crucial fees from the parties involved, ranging from court filing fees to the need to engage the support of a professional who can assess a conservatee’s mental capacity.
Some of the key costs associated with conservatorships include:
- Filing fees – The court charges an initial fee to petition for a conservatorship. For example, in California, the cost to petition for a conservatorship is an upfront $435 fee.
- Attorney fees – The court typically appoints an attorney to represent the interests of the incapacitated person during conservatorship proceedings.
- Additional professional fees – Other professionals that may require payment engaged in a conservatorship include professionals who determine whether a ward is incapacitated, such as nurses, social workers, and physicians.
Conservators are reimbursed for any expenses they incur, as well as being paid for the services they render. Payments come from the assets of the person they are taking care of, and must be deemed reasonable by the court.
In some cases, courts may be willing to offer a fee waiver for filing costs if the ward has limited assets to pay for them. Unfortunately, though, there may be expenses that must be paid by the guardian without reimbursement. However, the court will often attempt to ensure that any court filing fees are covered from the conservatee’s estate rather than the conservator’s pocket.
Trust RMO Lawyers to Help You With Conservatorship
A conservatorship is a beneficial arrangement that ensures that an individual’s affairs can still be managed responsibly, even when they no longer have the mental capacity to make conscious decisions for themselves. Whether you are a conservator or ward, a conservatorship attorney is a valuable resource for helping you navigate the process, from filing the court petition to managing responsibilities.
At RMO Lawyers, we protect people like you every day. Our team of conservatorship attorneys has decades of experience in helping families navigate these arrangements, and we will take the steps necessary to solidify this dynamic in the courts. If disputes or concerns arise with a conservatee’s estate, our attorneys can support you through the process, helping to resolve them as quickly as possible either through mediation, negotiation, or, if necessary, litigation.
Schedule a consultation with our attorneys at RMO Lawyers to start discussing your case.
Glossary
Conservatorship – A legal arrangement in which a court appoints a conservator to manage the financial affairs or personal care of an incapacitated individual.
Conservator – An individual responsible for managing the affairs of another person, which may include handling the person’s assets, making medical decisions, and ensuring their general well-being.
Conservatee – The protected individual in a conservatorship arrangement whose affairs are managed on their behalf due to mental incapacity
Conservator of the Estate – An individual responsible for managing only the financial affairs of a protected person in a conservatorship arrangement.
Conservator of the Person – An individual responsible for managing all daily affairs of a protected person in a conservatorship arrangement, including finances, medical needs, living arrangements, and more.
Power of Attorney – A legal document that grants someone the authority to act on behalf of another person in financial or medical decisions, either while they are alive or incapacitated.
Ward – Another name for a conservatee, or the protected individual in a conservatorship arrangement.