A Conservator is a court appointed person who handles the affairs of someone who is unable to do so on their own. In the Probate Court, a Conservator can be appointed for a minor or an adult.
Let’s look at a few examples of why someone might need a Conservator:
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. 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.
When people hear the term guardian, they often think of guardianship over a minor. As parents, we are the natural guardians of our own children. However, once that child turns eighteen (18), they no longer have a legal guardian.
So, what happens when an adult needs a guardian?
First, why would an adult need a guardian? Unfortunately, this need arises more often than most people realize. The most common examples are a disabled child who can’t care for themselves but has turned 18, an adult is in an accident that causes them to temporarily or permanently be unable to care for themselves or make appropriate decisions, or an older adult is suffering from dementia or Alzheimer’s Disease and can no longer handle their affairs. All of these situations require the appointment of a Court Appointed Guardian.
A Guardianship is defined as court authority to make decisions for another person (often called a “ward”). A Guardian makes decisions such as where the person will live and makes arrangements for his/her care, and handles health care decisions including end-of-life issues.
To establish a Guardianship, someone (usually a family member or interested party) petitions the Probate Court and asks to be appointed. This requires a Summons and Petition filed by the interested party through his or her legal counsel. The Court schedules a hearing to determine whether the person is legally incapacitated and to what extent the Guardian needs to make decisions on their behalf. 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 will appoint a Guardian (personal decision making). They may also appoint a Conservator (financial decision maker) at the same time. The Court then supervises the Guardian who must make yearly reports to the Probate Court regarding the condition of the incapacitated person.
This process can often be avoided if the person has a properly drafted and executed Health Care Power of Attorney in place. If you’re reading this blog, it’s a good time to make sure YOU have that document in place should you become the adult in need of help. Unfortunately, less than 1/3 of the population prepares this document which often makes court involvement necessary. At times, it’s also necessary to use this process 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.
Please search our site for other blog posts related to Guardians, Conservators and Fiduciaries for more details on Court Appointed Guardians and call or text us at 843-871-9500 if you need a consult.