Conservatorship

With individuals living longer and longer, it is becoming increasingly common for individuals to outlive their ability to independently manage their own affairs. When this happens, a conservatorship may be necessary. A conservatorship is a protective court proceeding where a judge appoints a responsible person (called the “conservator”) to care for an adult who cannot care for himself or herself or manage his or her own finances (called the “conservatee”). The establishment of a conservatorship shifts the responsibility for making personal or financial decisions from the conservatee to the conservator. The probate court can appoint a conservator of the person, a conservator of the estate, or both, depending on the needs of the conservatee.

Conservatorship of the Person.

A conservator of the person cares for and protects a person when the judge decides that the person cannot do it. The conservator is responsible for making sure that the conservatee has proper food, clothing, shelter, and health care. Depending on the conservatee’s ability to understand and make decisions, the conservator may need to make important medical choices for the conservatee. The duties of a conservator of the person include:

  • Arranging for the conservatee’s care and protection;
  • Deciding where the conservatee will live;
  • Making arrangements for the conservatee's meals, clothing, transportation, and recreation;
  • Overseeing the conservatee's medical care;
  • Seeking court approval regarding certain decisions about the conservatee's health care and living arrangements; and
  • Reporting to the court periodically on the conservatee's status.

Conservatorship of the Estate.

A conservator of the estate handles the conservatee’s financial matters if the judge decides the conservatee cannot do it. The duties of a conservator of the estate include:

  • Managing the conservatee’s finances;
  • Locating and controlling all of the conservatee's assets;
  • Collecting the conservatee’s income;
  • Creating a budget to determine what lifestyle the conservatee can afford;
  • Paying the conservatee’s bills;
  • Prudently investing the conservatee’s money;
  • Protecting the conservatee’s assets; and
  • Accounting to the court and to the conservatee for the management of the conservatee’s assets.

Priority of Appointment.

There are a number of people who can file for a conservatorship, including:

  • The spouse or domestic partner of the proposed conservatee;
  • A relative of the proposed conservatee;
  • Any interested state or local entity or agency;
  • Any other interested person or friend of the proposed conservatee; and
  • The proposed conservatee, himself or herself.

In selecting a conservator, the court is guided by the best interests of the conservatee. If the proposed conservatee has nominated someone, the court will appoint that person as conservator unless doing so is not in the proposed conservatee’s best interest. If the proposed conservatee has not nominate anyone, the law provides a list that sets out an order of preferences when more than one individual qualifies to serve as the conservator. The order of preference is:

  1. Spouse or domestic partner
  2. Adult child
  3. Parent
  4. Sibling
  5. Any other person the law says is okay
  6. Public Guardian

If the person with the highest priority does not want to be conservator, he or she can nominate someone else, such as a private professional fiduciary. Professional fiduciaries charge fees, but the court must approve in advance all fees paid from the conservatorship estate.

In the end, regardless of the order of preference, the choice of who will be the conservator is in the hands of the judge, and the judge makes this decision by considering the best interests of the conservatee.

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