A conservatorship is a court process wherein a judge appoints a person, known as a conservator, to make decisions on behalf of an incapacitated individual. It is also referred to as an adult guardianship in some jurisdictions.
When a person can no longer make decisions for themselves, most often due to medical reasons, then a conservator may be appointed. There are generally two types of conservatorships: a conservatorship of the estate, which oversees the finances of the incapacitated person, and a conservatorship of the person, which makes the medical choices for that individual.
Depending on the circumstances, the court can either appoint two separate conservators or one conservator to look after both the financial and medical needs.
If an individual is unable to make their own decisions regarding finances and/or their own medical care, then a conservatorship may be necessary. If, however, advance legal plans were made through the creation of legal documents, such as a living will or a durable power of attorney, then the conservatorship may not be necessary.
A family of an individual that is incapaticated may approach the court to assist them in transferring the decision-making away from the person that is no longer able to make sound life choices for themselves. The reasons for incapacitation can vary and may include: advanced stages of dementia, coma, or a altering/permanent mental health condition.
The conservator is the person that the court appoints and puts in charge of the finances and/or medical needs of the incapacitated individual. Often times, the court selects the incapacitated person’s spouse or adult child or children as conservators.
If however, there is disagreement within the family as to who the conservator shall be, then sometimes the court will appoint a neutral party to be in charge until disputes can be sorted either inside or outside of the courtroom.
Appointment of a neutral conservator is especially necessary when the individual has immediate healthcare needs. A neutral conservator may also be appointed when there are no family members that are able to step in to assist.
The conservator must keep a detailed record of all transactions, appointments, spending, etc. made on behalf of the individual. This keeps the conservator accountable to the court should any questions arise regarding their fulfillment of duties as conservator.
A conservator is reimbursed for expenses they get while acting as a conservator (like paying for the person under the conservatorship’s medical bills out of their pocket). The reimbursement comes from the funds of the individual in need of the conservatorship.
Third party conservators are typically compensated for their services as well. While family members that are conservators may also be compensated for services, it is not typically the norm for a family member to request payment under the circumstances.
The conservatorship can end under several circumstances, including:
- The death of the incapacitated individual;
- The need for a conservator is no longer necessary. (For example, the health of the individual improves.); and/or
- If it is strictly a conservatorship of the estate, the funds of the incapacitated individual run out.
A conservator does have the right to relinquish their duties. The court would then assign the duties to a new conservator rather than ending the conservatorship.
It is possible to avoid a conservatorship. As noted above, through prior planning, a person can decide ahead of time who they want to make decisions on their behalf regarding their health and finances should the need arise. A durable power of attorney is a document created, before a person is ever incapacitated, appointing one or more people to have the legal right to make their medical and financial decisions.
It is important to note the difference between a power of attorney and a durable power of attorney. Often times, people create a power of attorney as a convenience. For example, so that their adult child or children can sign off on checks or make other important decisions on behalf of the parent.
If, however, the parent becomes incapacitated, then the power of attorney, in most all jurisdictions, becomes invalid. In order to be valid, a durable (in other words, long-lasting) power of attorney must be created before incapacitation.
No matter if you are looking to the future and pre-planning for yourself or need to assist a loved one with more immediate demands, it is a good idea to speak with an experienced wills, trusts, and estates lawyer. Decisions regarding the best legal approach in caring for an incapacitated loved one can be overwhelming.
An estate planning attorney can assist individuals and families in deciding whether a conservatorship is the best approach for their situation. An estate planning attorney can also assist individuals plan for the future by drafting a durable power of attorney or living will to avoid putting future generations in a difficult decision-making position.