A conservatorship is a court process in which a judge appoints an individual to make decisions on behalf of a physically or mentally incapacitated individual. The individual whom a judge appoints during a conservatorship proceeding is known as the “conservator”. In some jurisdictions, this process may be referred to as a legal guardianship. Thus, a conservator may also be called the individual’s legal guardian.
The most common reason as to why a court would need to appoint a conservator is to make decisions on behalf of a person who is no longer able to do so themselves. For example, if a person has a serious illness or injury that causes them to lapse into a temporary or long-term coma.
In general, there are two main types of conservatorships: a conservatorship of the person and a conservatorship of the estate. In some cases, a conservator may even handle the legal duties and obligations that are required for both. The following provides a basic description of what a conservator may have to do under each of these types of conservatorships:
- Conservator duties for a conservatorship of the person: A conservator who is appointed to take care of an incapacitated individual will be given the authority to make decisions on the individual’s behalf. This may involve a wide range of duties, which could extend from making specific decisions about medical treatments to decisions that affect the individual’s daily life like what to eat or where to live.
- Conservator duties for a conservatorship of the estate: On the other hand, a conservator who is appointed to take care of an estate will be authorized to oversee and make decisions regarding an incapacitated individual’s financial affairs. For instance, a conservator appointed to this type of conservatorship may be authorized to sell property, sign a contract, invest funds, or purchase insurance on behalf of the individual.
- Conservator duties for both: If a conservator is appointed to serve as if they were assigned to both types of conservatorships, then they will be responsible for handling an incapacitated individual’s medical and financial matters. Depending on what the individual needs, the conservator may have other duties as well like overseeing legal disputes.
In addition, there may be other kinds of conservatorships available—each of which may have their own separate requirements. Whether or not a different type of conservatorship exists will largely depend on the laws of a particular state as well as on the needs of the individual who requires a conservator or legal guardian to represent them.
To learn more about the nature of conservatorships and the legal responsibilities required of conservators, you should speak to a local estate attorney for further advice. An attorney will not only be able to guide you through the process of becoming a conservator, but can also help a person to make changes to or to terminate an existing conservatorship.
How Are My Assets Protected From Mismanagement?
Unfortunately, there are some instances where a conservator may make mistakes or might intentionally mismanage an individual’s affairs. It is not uncommon for a dispute to arise over such matters since a conservator is often granted a wide range of authority as well as the power to make personal, legal, and financial decisions on behalf of an incapacitated individual.
Some common examples of legal disputes that may occur in connection with a conservatorship and an offending conservator include:
- When a conservator fails to perform their legal duties properly or at all;
- If a conservator misuses the individual’s funds, such as for personal gain, unsound investments, or by commingling them with their own assets;
- When a conservator commits fraud or misrepresents the individual’s intentions (e.g., forging their name on documents without their consent or pretending to be them for some personal benefits); and/or
- If a conservator violates the specific guidelines of a conservatorship arrangement or conservatorship laws.
As is evident from the above information, it is important that the individual put a number of safeguards in place to protect themselves and their assets from being mismanaged by their appointed conservator. Some examples of protective measures that may be used to protect a person’s assets from mismanagement by a conservator include:
- If possible, an individual or a trusted family member should select and appoint a person to become the conservator. While a court will certainly try to make sure that the person they appoint is suitable to serve as a conservator and will often designate a close family member to hold the position, this may not always be possible.
- If the individual or another trusted relative is worried about the person whom the court appointed, then they should either object immediately or recommend that a different person serve as the conservator before the conservatorship proceedings even begin.
- In most cases, a conservator is required to purchase a surety bond. The bond acts very similar to how an insurance policy would work in the event that someone’s finances were mismanaged or lost. If a situation arises where the individual’s funds have been mismanaged by their conservator, someone will need to alert the court.
- If the court also agrees that the value of the individual’s estate has been reduced or lost and that the actions of the conservator were to blame for this mishap, then the court may order the conservator to reimburse the individual for the loss.
- The court may either do this by ordering the conservator to pay damages and/or by requesting the conservator forfeit the surety bond that they purchased.
- Fortunately, it should be noted that most states require that a conservator file a plan of action with the court that originally appointed them and to periodically provide the court updates about the conservatorship arrangement.
- In instances where a conservator needs to make a potentially life-altering or expensive decision, such as to sell a house or make serious medical decisions, the conservator may need to get approval from the court before they take any further actions.
In addition, the individual being cared for or another interested party may petition for removal of a conservator. However, there must be a valid reason to remove the conservator and the petitioning parties must provide sufficient evidence that supports this reason. If the court finds there are grounds for removal, then they will order the conservator to be replaced and appoint a new person to serve as the individual’s conservator.
Finally, while many of the safeguards mentioned in the above list provide significant protections against the mismanagement of assets, they unfortunately are not always foolproof. Thus, if a situation occurs where it seems like a conservator is mishandling the individual’s financial affairs, then it is crucial that the individual or an interested party reach out to an attorney as soon as possible.
Should I Consult an Attorney?
Being assigned a conservator to oversee your affairs and to make decisions on your behalf can be a stressful experience. Thus, if you or a loved one is placed under a conservatorship in which you feel you should object to the choice of conservator, want to contest the arrangement, and/or are already in one and believe your affairs are being mismanaged, then you should a local estate attorney to represent you immediately.
An estate attorney who has experience in handling issues concerning conservatorships can make sure that your conservator is performing their legal duties properly and that they are not violating any conservatorship laws. If there is a dispute over the individual who is serving as the conservator or your conservator has caused you to lose money, your attorney can file a lawsuit against them and can also help you to recover damages for those losses.