Conservatorship

Overview

An individual’s capabilities are prone to change over the span of a lifetime, and while people in general may have an innate desire to maintain their autonomy and independence indefinitely, the realities of aging and illness often create obstacles to autonomy. When the time comes that it is found that an elder loved one is no longer able to make sound decisions regarding their health needs and best financial interests, appointing a guardian or conservator to act on their behalf often becomes the best solution.

We hope this article will serve as a resource for individuals who are in the process of deciding whether to avail themselves of this option, and to shed light on the workings of guardianships and conservatorships.

What is a Conservatorship?

A conservatorship, also referred to as a guardianship of the estate, typically grants one or more court-appointed people the power to make estate planning decisions on financial matters for someone who is found to be unable to manage his or her affairs due to infirmity or impairment.

If the court finds that the conservatee is capable of having some input on these matters then a limited conservatorship will be granted. This allows the conservatee a greater say in certain areas. A conservator’s job in those cases usually involves managing the economic resources of the individual deemed to some degree unfit.

Depending on the circumstances, conservator duties may extend to:

Acquiring and managing assets, such as properties and funds
Buying food and other needs
Securing and paying for placement in a facility to treat a mental illness or otherwise look after the conservatee
Paying other bills
Managing property by paying for property insurance, rent or mortgages, property clean-up, or pay for a property management company to maintain and rent the property

Forms of Conservatorship

Probate

A court-appointed person to care for someone who is unable to care for themseleves or their assets for reasons found sufficient by the court.
Any individual can petition the courts to initiate this process.
Sufficient evidence of the conservative’s inability to manage their affairs is required prior to the appointment of a conservator.

Lanterman Petris Short (LPS)

Gives individual authority over a person with a verified mental disorder.
Commonly used fir people who are incapcitated due to mental illness, and they require involuntary treatment or court-mandated placement into a health care facility.
More power is granted to an LPS conservatorship, so thorough evaluation at the hands of designated professionals is needed.

Individuals to Whom Conservators or
Guardians are Appointed

Guardians and conservators are appointed to individuals who are either too young to be autonomous, as in the case of a child, or are mentally or physically incapacitated and unable on their own to make proper legal, medical, and financial decisions. The authority of the guardian may be limited in accordance with the degree of their ward’s incapacity. Reasons for these appointments include:

Dementia: an illness that is denoted by the progressive deterioration of mental faculties and memory
Alzheimer’s: a neurodegenerative disease that ultimately inhibits one’s ability to perform daily tasks
Coma: a prolonged or permanent state of deep unconsciousness
Mental illness: including numerous disorders that may render individuals unable to perform daily function tasks.

While the particular methods and laws regarding the appointment of a conservator or guardian differ slightly from state to state, they tend to follow these basic parameters:

A petition for guardianship or conservatorship is prepared and filed to the appropriate court.
A request is made prior to the hearing, when needed, for a temporary guardian to act as fiduciary for the ward.
The concerned parties are notified of an upcoming hearing; these would include other potential conservators or guardians, the potential conservatee, family members, partners or spouses, and other interested entities.
A court-appointed investigator reports their findings to the court.
A hearing will then be held approximately two months after the position has been filed to determine if a conservatorship or guardianship has been awarded, and the extent of its powers.
If the conservatee or another interested entity has an issue with the court’s previous decision, and they wish to alter or reverse it, then the necessary documents for an appeal must be submitted to the court of appeals.

Appointing a guardian or conservator can be difficult and costly, and one of the more difficult aspects of this process can be the task of vetting those interested and qualified to hold this position.

Those who tend to be granted the position of guardian or conservator are usually competent and interested members of one’s family or court-appointed attorneys. Given the high potential for exploitation or misuse that such an appointment would afford a guardian or conservator, individuals with outstanding debts or criminal records are eliminated as a matter of course.

he conditions that must be met by potential guardians and conservators have been the subject of federal inquiries. The Government Accountability Organization(GAO) continually look into the prevalence of exploitation, neglect and abuse of seniors in the guardianship system, and why these misuses of authority are possible. GAO investigators focus on instances in which guardians used their power to embezzle or misappropriate, or those who stole or improperly obtained assets from incapacitated victims.

How are Conservators Appointed?

Petition for guardianship or conservatorship is prepared and filled to the approprriate court.
Request a temporary guardian.
Notify concerned parties of the upcoming hearing findings to the court.
Hearing – approximately 2 months after the position has been filed.
Appeals.

Who need them?

Those too young to be autonomus.
Mentally/physicaly disabled or unable to take their own decisions.

Qualifications Needed to become a Conservator

Above 18 years old
Be sound of mind
Understand and be able to execute the duties
Must demonstrate the ability to create a suitable care plan
Agree to have full background checks performed
No felony convictions
Need prior experience of education to perform apointed tasks
Must obtain required licenses and certifications
No history of abuse of neglect

Circumstances that may lead to Termination

If the client is found to be able to manage their own affairs
If a guardian has been found to be either abusing or neglecting their position
If the appointment of the conservatorship is successfully contested by an interested party
The client has reached an age where they can be considered an adult
The client has died
The client moving to another state
Either party has requested termination of the contract