Conservator and Conservatorship

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 What Is a Conservator?

In the legal context, a conservator is an individual appointed by the court to look after the well-being of a minor or a person who is mentally incapacitated due to an illness or accident. The legal authority granted to a conservator over their conservatee is called conservatorship.

Conservators have a wide range of rights and responsibilities under the law. They play a crucial role in situations where an individual is unable to care for themselves or make specific decisions. The primary purpose of a conservatorship is to safeguard the conservatee’s interests.

What Are the Key Responsibilities of a Conservator?

Depending on the type of conservatorship, a conservator’s duties may vary. A conservator of the “estate” is responsible for managing the conservatee’s property, financial affairs, and business matters.

On the other hand, a conservator of the “person” oversees the conservatee’s daily activities, such as healthcare and living arrangements. In some cases, a person can be both a conservator of the estate and the person. If a conservatorship only pertains to the person, they are often referred to as a “legal guardian” in most states.

A conservator’s legal authority is limited to the areas of a conservatee’s life specified by the court. For instance, a conservator of an estate handles the conservatee’s property and financial affairs and makes decisions concerning their assets.

In a full conservatorship, the conservator has similar rights and responsibilities to those of a parent over a child, making decisions for the conservatee as a parent would for their child.

What Are the Different Types of Conservatorships?

Several types of conservatorships may exist in most states, each with unique duties and responsibilities. These can include the following:

  1. Conservator of the Person: A court grants the individual the legal authority to make decisions regarding the conservatee’s daily life, covering a wide range of responsibilities. Therefore, the chosen conservator should be familiar with the conservatee’s day-to-day needs. Their duties may encompass:
    • Managing any special care arrangements;
    • Determining the conservatee’s living arrangements;
    • Overseeing healthcare decisions; and
    • Organizing personal care, food, and other provisions.
  2. Conservator of the Estate: This type of conservator has the legal rights to manage financial affairs and make financial decisions on behalf of the conservatee. The court generally supervises the conservator’s management of an estate, and they may need to obtain authorization for specific transactions, such as selling property or signing contracts. The conservator may also be required to purchase a bond to insure the assets they are managing.
  3. Both: Depending on the conservatee’s needs, a conservator can be appointed as either a conservator of the person, a conservator of the estate, or both. If both types of conservatorships are necessary, it makes sense to appoint a single conservator with the authority to manage both the person and the estate.

How Does the Appointment of Conservators Work?

To establish a conservatorship, someone typically needs to file a petition in the appropriate court, often a probate court in many states. Consulting an attorney experienced in wills, trusts, and estates is advisable for guidance on initiating the process. The attorney can help determine the correct court and required documents.

The petitioner must present evidence of the conservatee’s mental capacity. Depending on the state’s laws, the petitioner must provide evidence to support the need for a conservator’s appointment. This may necessitate evidence from doctors, psychologists, social workers, and others regarding the conservatee’s mental condition and capacities.

In California, for example, the petitioner must demonstrate by “clear and convincing evidence” that a conservator is necessary and that there is no less restrictive alternative to protect the conservatee. If, after reviewing the evidence, the judge determines that a conservator is required, they will appoint one. The appointed conservator is often a spouse or an adult child.

In some cases, multiple family members or friends may compete for the conservatorship. In such situations, the judge follows preferences established by state law. Most states prioritize the conservatee’s spouse, registered domestic partner, adult children, adult siblings, or other adult blood relatives. However, a judge can choose another person if they believe that individual would be better suited for the role.

It is worth noting that without substantial evidence supporting the conservatee’s preference, a non-relative is unlikely to be appointed as a conservator if a suitable relative is available. If no appropriate relative is available, the judge may appoint a public or professional conservator.

A conservator usually manages a conservatee’s affairs for as long as necessary. The conservatorship typically ends or expires when the individual reaches adulthood, recovers sufficiently to manage their affairs, or if the assets managed by the conservatorship are exhausted. Additionally, a conservatorship generally terminates immediately upon the conservatee’s death.

What If I Don’t Want a Conservator Appointed?

If you believe that a conservatorship is unnecessary, you can participate in the case initiated by the petitioner and oppose the appointment. The opposing party can argue that the conservatorship is not warranted, or they can present arguments regarding the most suitable conservator or the type of conservatorship needed.

A conservatorship hearing is a legal proceeding in which interested parties can present evidence and argue relevant issues. The judge, not a jury, decides the case, makes the ruling, and appoints the conservator. However, interested parties, such as a spouse or adult child, have the right to appear and be heard.

What Are Some Common Disputes Involving Conservators?

Conservators and conservatorships can give rise to various legal conflicts, disputes, and issues due to the extensive legal responsibilities a conservator has concerning the conservatee. These legal issues can include:

  • A conservator’s failure to perform their duties correctly;
  • Instances of fraud or misrepresentation by the conservator;
  • Misuse of conservatorship funds for the conservator’s benefit;
  • Disputes over who should serve as a conservator; and
  • Violations of conservatorship laws.

Conservatorship disputes can be intricate, involving complicated laws and multiple parties. Potential remedies for such cases may include an award of damages, removal of the conservator, and other options. For example, if the conservator misused funds, they might be required to repay the misused or misapplied amount.

How Are Conservators Removed, and When Does Conservatorship End?

To remove a conservator for a valid reason, a person must petition the court for removal. However, a conservator cannot be removed because someone involved dislikes them.

The petitioner must be an “interested party,” meaning someone related or with an established relationship as required by 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 the judge believes the petitioner has a strong argument and has proven their case, the conservator will be removed, and a new one will be appointed.

Do I Need a Lawyer for Assistance with Conservator Issues?

Deciding to establish a conservatorship and appointing the right person as a conservator are important decisions. Since a conservator is authorized to make significant legal decisions on behalf of a conservatee, it is important to select a trustworthy person with the knowledge to make informed decisions for the conservatee.

Conservatorship can be a stressful issue, but you don’t go through this process by yourself. Instead, use LegalMatch to find the right estate lawyer for your case today.

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