Conservatorship

What is a conservatorship?

There are two types of conservatorships:  a conservatorship of the person and a conservatorship of the estate.

A conservatorship of the estate is a court proceeding to appoint an individual to manage the financial affairs of an incapacitated person who is unable to manage his or her own property or financial matters.

A conservatorship of the person is a court proceeding to appoint an individual to manage the day to day living and health issues of an incapacitated person.

Who may serve as conservator?

Generally an individual family member is appointed as the conservator on a petition to the court.  In some circumstances, a private fiduciary is appointed.

Unless the incapacitated person has previously nominated a conservator in his or her power of attorney, the following is the order of preference:

1. Spouse or domestic partner 

2. Adult child  

3. Parent  

4. Sibling  

5. Any other person the law says is okay  

6. Public Guardian

How is a conservator appointed?

A petition for the appointment of a conservator is filed with the court. The petition may be filed by the person to be protected or by any interested person.

 Notice of the time and place of the hearing must be personally served on the person to be protected and given to other persons specified by statute.

 Initiating a conservatorship proceeding is a long and complicated process.  If you would like more information on the process, please contact us to schedule an appointment.

What are the duties of a conservator?

A conservator has the powers and responsibilities of a fiduciary. The following is a brief, non-inclusive list of some of the duties required of a conservator.

Conservator of the Person:

• Arrange for the conservatee’s care and protection; 

• Decide where the conservatee will live; and 

• Are in charge of the conservatee’s:

o Meals, 

o Health care,  

o Clothing,  

o Personal care, 

o Housekeeping, 

o Transportation,  

o Shelter,  

o Recreation, and 

o Well-being. 

• Must get the court’s permission for certain decisions about the conservatee’s health care or living arrangements. 

• Must inform the court if the conservatee is moving and may need to get a court order allowing the move. 

• Must report to the court on the conservatee’s current status. 

• Must keep the court informed of any changes in your address or contact information

Conservator of the Estate:

• Manage the conservatee’s finances; 

• Make a list of everything in the estate; 

• Take control of all assets; 

• Collect the conservatee’s income; 

• Pay the conservatee’s bills; 

• Make a plan to make sure the conservatee’s needs are met (your conservatorship plan); 

• Make a budget to show what the conservatee can afford; 

• Make sure the conservatee gets all the benefits he or she is eligible for; 

• Responsibly invest the conservatee’s money; 

• Protect the conservatee’s income and property; 

• Keep exact financial records; and 

• Make regular reports of the financial accounts to the court and to the conservatee regarding the management of the conservatee’s assets.

Can appointment of a conservator be avoided?

Sometimes a validly-executed Durable Financial Power of Attorney will enable the named agent to manage the assets of the incapacitated adult. If the incapacitated adult has a trust, a conservator may only need the limited power to retitle the assets to the name of the trust, so the trustee can then manage the assets for the benefit of the incapacitated person. Often, a financial institution will require that that institution's Power of Attorney form be used for an agent to manage an incapacitated person's account. An adult can only appoint an agent under a power of attorney if the adult is competent to understand the power of attorney document.