Under the law of most states, a conservator is a person whom a court appoints to care for a minor child or an individual who is incapacitated mentally by illness or accident. The authority that a conservator has over their conservatee is known as conservatorship.
Conservators are granted many different rights and responsibilities under the law. They can be extremely useful in situations where a person is not legally able to take care of themselves or make certain decisions for themselves. A conservatorship exists for the protection of the conservatee.
What Does a Conservator Do?
A conservator may be a conservator of the “estate,” that is, the property, financial and business affairs of a person. Or a conservator may be a conservator of the “person”, where the conservator takes over supervision of the daily activities of the conservatee, such as health care and living arrangements. A conservator can be a conservator of both the estate and the person. If a conservatorship is for the person only, in most states they will be called a “legal guardian”.
A conservator has legal authority only over those aspects of a conservatee’s life to which the court gives them the conservatorship. For example, the conservator of an estate manages the conservatee’s property and financial affairs and makes decisions regarding the conservatee’s assets.
Or the conservator may have a full conservatorship, in which the conservator essentially has the same rights and responsibilities that a parent does over a child, and makes the same types of decisions for the conservatee that a parent makes for a child.
Are There Different Types of Conservatorships?
In most states, there may be several different types of conservatorships. Each type has different duties and responsibilities. These may include:
- Conservator of the Person: A court grants a conservator of the person the legal right to make decisions about the person’s day-to-day life. This can include a broad range of responsibilities. Thus, the party that is selected to be a conservator of the person should be someone who is familiar with the day-to-day needs of the person they are responsible for supervising. This can include decisions such as:
- Handling any special care arrangements;
- Deciding where the person will live;
- Taking charge of health care decisions; and
- Arranging for personal care, food and other provisions.
- Conservator of the Estate: A conservator of the estate is given legal rights to handle and manage financial affairs and make financial decisions on behalf of the person they are representing.
- The court generally oversees the conservator’s management of an estate, and the conservator needs to obtain authorization for certain transactions, such as selling property or signing a contract. Also, the conservator may be required to purchase a bond that acts as insurance over the assets of the estate they are responsible for.
- Both: Depending on the person’s needs, a conservator can be named either a conservator of the person, a conservator of the estate, or both. If both types of conservatorships are necessary, it would make sense to appoint one conservator with the authority to handle the person and the estate.
How Are Conservators Appointed?
Generally, to establish a conservatorship, someone must file a petition in the appropriate court. In many states, that court would be a probate court. It is best to consult an experienced attorney for conservatorship, which is usually a lawyer who deals with wills, trusts and estates, about beginning the process. The attorney would know in which court to file and what documents are required.
The petitioner for conservatorship must present evidence of the conservatee’s mental capacity. Depending on the law of the state where the proceeding takes place, the petitioner must present evidence to establish the need for the appointment of a conservator. This may require evidence from doctors, psychologists, social workers and others as to the mental condition and capacities of the person who will become the conservatee.
In California, the petitioner for a conservatorship must show by “clear and convincing evidence” that a conservator is necessary and that no less restrictive alternative will protect the conservator. If, after hearing the evidence, the judge concludes that a conservator is necessary, the judge will appoint the conservator. Often it is the spouse or an adult child.
Occasionally, several family members or friends may compete for the job. If this happens, the judge follows preferences established by state law. Most states give preference to the conservatee’s spouse, registered domestic partner, adult children, adult siblings, or adult other blood relatives. But a judge who thinks some other person would be best for the job may pick that person.
However, absent strong evidence of what the conservatee would have wanted, it is unlikely that a nonrelative would be appointed conservator if a relative is available to serve. If no suitable relative is available to serve as conservator, the judge may appoint a public or other professional conservator.
A conservator will generally manage a conservatee’s affairs for as long as necessary. If the individual reaches adulthood, or recovers enough to manage their own affairs, then the conservatorship will usually end or expire. Also, if the assets managed by the conservatorship are used up, then the conservatorship of the estate will end. And, lastly, a conservatorship usually ends immediately upon the death of the conservatee.
What If I Do Not Want a Conservator to Be Appointed?
A person who believes that conservatorship is not necessary in a given case may make an appearance in the case started by the petitioner for a conservatorship to oppose the appointment. A person who opposes a conservatorship can argue that it is not justified. Or, the person can make arguments as to whom would be the appropriate conservator or they can make arguments regarding the type of conservatorship that is needed in the situation at hand.
A conservatorship hearing is a legal proceeding in which interested parties can appear, present evidence and make arguments regarding any issue relevant to the case. There is no jury; the judge decides the case, makes the ruling and appoints the conservator. But interested parties, e.g. a spouse or adult child, certainly has the right to appear and be heard.
What Are Some Common Disputes Involving Conservators?
Conservators and conservatorships can lead to various types of legal conflicts, disputes, and issues. This is not surprising given the tremendous amount of legal responsibility the conservator has in connection with the conservatee. Various types of legal issues can arise, including:
- A conservator’s failure to perform the duties properly;
- Instances of fraud or misrepresentation by the conservator (for instance, using the person’s name to sign documents without their permission or the court’s permission);
- Misuse of conservatorship funds for the conservator’s personal gain;
- Disputes over who should serve as a conservator; and
- Various violations of conservatorship laws.
Disputes regarding conservatorship can be complex. They may involve complex laws and several different people. Possible remedies for such cases can include an award of damages, removal of the conservator and other options. For example, if the conservator misused the funds, then they will probably be required to pay back the amount they misused or misapplied.
When Does the Conservatorship End? How Are Conservators Removed?
If there is a reason to remove a conservator, either for one of the reasons above or for any other valid reason, then the person must petition the court for removal. However, remember that a valid reason is required and a conservator cannot be removed simply because an involved person does not like them. Also, the person petitioning for the removal (the “petitioner”) must be an “interested party”, that is, a person who is related or has an established relationship as required by the applicable state law.
Once a petition is filed, the petitioner must present evidence to show why the conservator should be removed. The probate court will decide the issue. If they believe the petitioner has a strong argument and has proven their case, then the conservator will be removed and a new one appointed.
Do I Need a Lawyer for Assistance with Conservator Issues?
Choosing to establish a conservatorship and appointing the right person as conservator are very important decisions. Since a conservator will be authorized to make major legal decisions on behalf of a conservatee, you will want to select a person who is trustworthy and has the knowledge to make good decisions on behalf of the conservatee.
If you have any questions or disputes regarding conservatorship laws, an experienced estate lawyer can provide you with valuable legal advice. They will also be able to represent you in court if you wish to file a petition regarding a conservatorship.