CONSERVATORSHIPS

By KATHLEEN MARIE WHITNEY, LL.M.

Attorney and Counselor-at-Law

1.  WHAT IS A CONSERVATORSHIP?

Conservatorship is a legal proceeding to appoint someone (conservator) to care for the personal needs of an incapacitated person (conservatee) and his or her assets.  The conservator becomes responsible for making decisions for the conservatee when the conservatee cannot make decisions for herself.

There are two types of conservatorships:  LPS and Probate. 

An LPS Conservatorship is initiated by a treatment facility, and a Probate Conservatorship is initiated by a family member or friend of an incapacitated person.

2.  WHEN IS A CONSERVATORSHIP APPROPRIATE?

An LPS Conservatorship is appropriate when a person, as a result of mental disorder or chronic alcoholism, is a danger to himself or to others, or is gravely disabled. 

A Probate Conservatorship is appropriate when a person cannot take care of his personal needs and/or is substantially unable to manage his financial resources or resist fraud or undue influence.

3.  WHAT IS THE PROCESS?

The first step is choosing the person to be the conservator.  If the incapacitated person has a durable power of attorney, that document may designate the person to be conservator, or the person may know she needs help and has the capacity to choose the conservator. 

If the incapacitated person has not or cannot choose a conservator or is unwilling to accept a conservatorship, the incapacitated person’s spouse, adult child, parent, sibling, or close family friend can volunteer to be conservator.  If there are no willing family members or friends, a professional conservator may be retained, or Public Guardian, a county agency, may step in to be conservator.

Next, there is a court process of petitioning for conservatorship.  If there is an immediate need for temporary care of the person or to protect property from loss or injury, it may be appropriate to petition the court for temporary conservatorship, which can be reviewed by the court immediately. 

Unless the conservator is the spouse of the incapacitated person or a professional conservator, a bond will generally be required.  The amount of the bond is determined by the value of the incapacitated person’s assets that will be in the conservatorship.

The court investigator will review the court documents, including medical reports and declarations from people familiar with the incapacitated person, and will interview the proposed conservatee to evaluate the need for a conservatorship. 

If the court grants the petition for conservatorship, the court will issue Letters, documents that the conservator uses to open and close bank accounts and deal with the conservatee’s assets. 

The conservator may also petition the court for exclusive authority to give medical consent on behalf of the conservatee. 

An Inventory and Appraisal will be filed with the court, identifying the conservatee’s assets and their value.  Also, an annual accounting will be completed to apprise the court of all income and expenses related to the conservatorship. 

Except in limited conservatorships, a conservatorship will be terminated upon the death of the conservatee or by court order.

4.  WHAT ARE THE COSTS OF ESTABLISHING A CONSERVATORSHIP?

There is a fee for filing the Petition for Conservatorship, for the court investigation, for issuance of the Letters of Conservatorship, and for an appraisal of the conservatee’s assets. 

An attorney will charge fees either for a fixed fee or an hourly rate.  The amount of the fees will depend on the complexity of the case.  In addition, the conservator may charge for time spent that benefits the conservatee. 

5.  CAN THE CONSERVATORSHIP BE OPPOSED?

The proposed conservatee or another person can oppose the conservatorship or the choice of conservator. 

6.  WHAT ARE CONSERVATOR'S POWERS?

Depending upon the circumstances of the conservatorship, the conservator will have powers to fix the conservatee’s residence; consent to medical treatment; pay conservatee’s bills; manage conservatee’s real property, investments, and other assets; and petition to recover the conservatee’s assets that have been wrongfully taken.

7.  WHEN ARE CONSERVATORSHIPS UNNECESSARY or INAPPROPRIATE? 

A conservatorship may not be necessary or appropriate if the incapacitated person is  accepting assistance from family and friends or social services, is following medical direction regarding treatment and medications, and is not subject to fraud or undue influence; has valid powers of attorney that name a responsible person to manage assets and make health care decisions; has a living trust that names a responsible person to manage assets in the event of incapacity; only needs medical treatment for a particular condition.

8.  WHAT CAN I DO TO PLAN FOR INCAPACITY?

A properly drafted durable power of attorney for health care or financial management can include a provision that if you become incapacitated, you nominate a particular person to be your conservator. 

A living trust, in which you are the original trustee (manager) of your assets, can include a provision choosing a successor trustee to act in your place in the event of your incapacity.  

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