What is a conservatorship?

A conservatorship is an action where a judge will appoint someone to look after the personal and financial affairs of an individual with a disability.  In order to do this, the court must find that the individual is unable to manage their own affairs on their own, and that the proposed conservator (sometimes called a “fiduciary”) is an appropriate individual to help him.

The conservatorship can be very broad, allowing control over almost all personal and financial issues, or it can be very narrow.  For example, the conservatorship could exist only for the purpose of managing and selling certain assets.

How does a conservator get this power?

Anybody who knows that a person with a disability is in need of assistance can ask a probate judge to find that the person needs supervision and to establish a conservatorship.  Whoever asks the court does not need to have any type of relationship with the individual. It could be a friend, relative, member of a church, or anybody else who recognizes the individual with a disability is unable to manage his own affairs.

The court will rely on testimony by whomever filed the papers with the court, plus testimony by doctors or psychologists. The court may also appoint a temporary guardian to investigate the situation and make his own recommendation. In addition, the individual with the disability is entitled to have an attorney appointed to help him maintain his rights.

Once appointed, the newly appointed conservator will receive “letters of conservatorship”, which authorize him to make necessary decisions for the person with a disability.

Can the person with the disability still make his own decisions?

No. Certain rights will be removed from the individual and placed in the fiduciary. For example, if the person with a disability is unable to manage money, the judge may remove his right to enter contracts and access his bank accounts. This is to help the conservator protect the person from people who will treat him unfairly. However, the fiduciary can still give the person money from time to time so he can make smaller purchases.

Of course, the conservator should always keep the person’s desires in mind when making decisions for them.

Who can be the conservator?

When deciding who will take over these responsibilities, the court will look at several options. First, the court will look to see if the individual with the disability has expressed a preference. For example, when executing a power of attorney, the person can specify that if they become incapacitated and a conservatorship is created, they would prefer that their agent also be named conservator.

Next, the court will look to the spouse, then the children, then other family members of the person. If none of the above are willing or able to serve, the court can look to any other person or even appoint a professional conservator.

What else must the conservator do?

Depending on the situation, the fiduciary may be required post a bond. A bond is an insurance policy that will replace the assets of the individual if the fiduciary acts inappropriately with the person’s assets. Normally, the court will require the conservator to file an annual status report showing how the person’s income and expenses were managed during that year.

When does the conservatorship end?

If the individual becomes competent and able to handle his own affairs, the conservator will no longer be needed. This most often happens when the person recovers following an illness or accident. In this case the person would have to go back to court and ask that the conservator be removed.

Also, the conservatorship ends when the individual with the disability dies and there is no longer a need to manage the person’s affairs. A request should be made to the probate court to nominate a personal representative to settle the person’s estate.

When a fiduciary is dismissed, he will be required to file an accounting with the court showing how all the assets and expenses were handled or maintained.