Conservatorships

Types Of Conservatorships

A Conservatorship is a court action, commonly brought by an interested party, usually an adult child of an aging parent who petitions the court to appoint a fiduciary called a conservator whose legal duty it is to make all major legal and financial decisions for the benefit of a person called the  “conservatee” who, no longer possesses the mental capacity to make such decisions on his or her own behalf.

State Law Governs Conservatorships

The laws governing Conservatorships are enacted by each state and managed by the state’s judicial system. The laws can vary from state-to-state, but are generally quite similar. Each state may have different court rules and procedures but most states substantive law  do not significantly differ. These laws can usually be found in the states official probate code.

Two Categories Of Conservatorships: General and Limited.

General Conservatorships

Under a General Conservatorship, the Conservatee is often an elderly person who  no longer has the mental capacity to make legal and financial decisions on their own behalf. The non-elderly can also be eligible for a conservatorship, if that person has been rendered mentally impaired by disease or by a dibiltating physical accident. A person suffering from Alzheimer’s disease is a good example.

The essential aspect of the General Conservatorship is that the conservative can no longer make informed decisions on their own behalf. Before a person can be judicially determined to lack sufficient mental capacity, courts regularly order two physicians (usually geriatric or neurologists) to perform independent mental assessment on the person to establish their level of capacity.

Limited Conservatorships

A Limited Conservatorship of conservatorships are established to care for developmentally impaired adult who cannot fully care for themselves or make informed legal and financial decisions on their own behalf. Since the developmentally impaired have different levels of impairment, their needs usually do not usually require a high level of care and supervision.

Powers Of The Conservator

Power Over The Person

The probate court can appoint a conservator over the “person” who is charged with the fiduciary duty to protect and care for the person in mattes of personal choices, such as where to live and what forms of healthcare are most appropriate. Sometimes, a conservator elects to place the conservatee in a Board and Care if it is determined to be in their best interests or the conservator can elect to place the conservatee with a family member and arrange for home care nursing.

Power Over The Estate

A conservator that holds power over the estate manages all the conservatee’s financial matters such as selling a home, collecting income from investments and paying the conservatee’s bills and expenses.

Qualifying As Conservator

Any interested party can be a conservator.  This person however must petition the court for approval and demonstrate to the courts satisfaction that the person will act in the best interests of the conservatee.

Many times it is the adult children of the conservatee. Some states have codified who can apply to be a conservator of another. Some states provide for preferences in favor of people who are spouses or domestic partners of the conservatee; a blood relative or a close friend of the conservatee. If there are no interested parties, the court can appoint a professional fiduciary as conservator or a public agency.

Declared By Nomination

In nominating a conservator, the court is guided by the best interests of the conservatee. If the proposed conservatee has already nominated someone, the court will appoint that person as conservator, unless it is determined that such nomination is not in the conservatee’s best interests.

Preferences

If the proposed conservatee has not or cannot nominate anyone, the law provides a list of preferences courts generally follow should the court determine that all the persons are qualified to serve as conservator. The order of preference is:

1, Spouse or domestic partner
2. Adult child
3. Parent
4. Sibling
5. Public Guardian

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