By KATHLEEN MARIE WHITNEY, LL.M.
Attorney and Counselor-at-Law
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.
are two types of conservatorships: LPS
Conservatorship is initiated by a treatment facility, and a Probate
Conservatorship is initiated by a family member or friend of an
WHEN IS A CONSERVATORSHIP APPROPRIATE?
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
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.
WHAT IS THE PROCESS?
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.
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
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
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.
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.
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.
conservator may also petition the court for exclusive authority to give
medical consent on behalf of the conservatee.
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.
in limited conservatorships, a conservatorship will be terminated upon the
death of the conservatee or by court order.
WHAT ARE THE COSTS OF ESTABLISHING A CONSERVATORSHIP?
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.
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.
CAN THE CONSERVATORSHIP BE OPPOSED?
proposed conservatee or another person can oppose the conservatorship or
the choice of conservator.
WHAT ARE CONSERVATOR'S POWERS?
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.
WHEN ARE CONSERVATORSHIPS UNNECESSARY or INAPPROPRIATE?
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.
WHAT CAN I DO TO PLAN FOR INCAPACITY?
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.
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.