Let’s look at a few examples of why someone might need a Conservator:
- A minor inherits a large sum of money from an inheritance. If the funds are more than $10,000, the Court will require a Conservator to be appointed to manage those funds on behalf of the child.
- An elderly adult becomes incapacitated due to dementia or Alzheimer’s Disease and needs someone to ensure their bills are paid, seek any benefits they may be entitled to and otherwise manage their financial affairs.
- A perfectly healthy twenty (20) year old is in a severe accident which has left him unconscious and perhaps permanently brain-damaged. The Court will appoint someone to manage his financial affairs and perhaps even brings a lawsuit on his behalf.
Before going further, if you haven’t read our post on Guardians, you might read that first as the two are often confused. While a Guardian manages health care decisions, a Conservator handles financial matters such as managing and protecting assets, paying all legitimate bills and working with the Guardian to pay for the care of the ward. A Conservatorship is established by someone (usually a family member or interested party) filing a Summons & Petition in the Probate Court to be named Conservator. The Court schedules a hearing to determine whether the person over whom the Conservatorship is sought is legally incapacitated.
The medical evidence of incapacity is required and the court will provide a guardian ad litem to represent the interest of the alleged incapacitated party. If the judge decides that the person is legally incapacitated and in need of protection, the Court may appoint a Guardian (personal decision making) or Conservator (financial decision making) or both. The Court then supervises the Conservator and/or Guardian. The Conservator also reports periodically to the court about income and expenses and is often required to create a monthly budget for their ward.
Sometimes, this process can be avoided if the person has executed a General Durable Power of Attorney that names someone who can manage their affairs. Unfortunately, less than 1/3 of our population has taken the time to plan ahead and have this document in place. That being said, situations do arise where court involvement is necessary even when someone has a Power of Attorney in place. The process can also be used to remove someone who is serving as a Power of Attorney but who isn’t acting in the best interest of someone who is incapacitated.
Just like a Guardian, a Conservator is a type of fiduciary. A fiduciary is someone to whom property or power is entrusted for the benefit of another. For example, a Trustee is a fiduciary for the beneficiaries of the trust. A Personal Representative is the fiduciary for the beneficiaries of an estate. A Conservator or Guardian is a fiduciary for their ward. Being a fiduciary comes with both responsibilities and liabilities so it’s very important to understand your obligations before agreeing to become a fiduciary.
If you are considering becoming a Conservator, please search our website and this blog for more information on your responsibilities and how we can help.