In simple terms, a conservatorship is a way for someone to assume legal guardianship over an adult. Families often use conservatorships to help deal with the mounting medical, financial and mental health needs of a parent. The status of a conservatorship is dependent on the capacity of the individual to make decisions on their own. To figure out whether a conservatorship is necessary for your family’s situation, you’ll likely have to talk with a doctor, a lawyer or even a financial advisor.
What Is a Conservatorship?
A conservatorship is a form of legal guardianship of an adult. Under this structure you, the conservator, has legal authority over certain aspects of the conservatee’s life. This can range from a limited conservatorship, which addresses only specific matters such as health or finances, to a full conservatorship, in which you essentially have the same rights and responsibilities that a parent does over a child.
In all cases, a conservator has full authority over the relevant aspects of their conservatee’s life. When this structure applies to a minor, it is a guardianship. That’s why some jurisdictions refer to conservatorships as “adult guardianships.”
It’s important to understand that a conservatorship is focuses on the needs of the conservatee and not the interests of the conservator. The decision maker will typically consult with doctors and social workers and will appoint a conservatorship based on what they believe will best keep the conservatee healthy and safe.
Types of Conservatorships
There are several different versions of a conservatorship. Each one is used to accomplish a different goal for the parties involved. For example, a financial conservatorship gives a conservator the ability to manage the conservatee’s assets.
Here’s a breakdown of the different types of conservatorships:
Conservatorships by Type
- Financial – The conservator has full authority over the conservatee’s finances. While the conservatee still has full physical autonomy, they cannot access their money, investments or most forms of property without the conservator’s signature.
- Physical – The conservator has authority over the conservatee’s health and life. The conservator can choose where the conservatee lives, how they receive healthcare and whether they need to move to a living facility of some sort.
- General – The conservator has full authority over the conservatee’s finances, physical autonomy, health and all other significant decisions. It is uncommon for a court to grant a physical conservatorship without also granting financial authority as well, so this is more common than a physical conservatorship.
- Limited – The conservator has authority over some specific aspects of the conservatee’s life. This is often granted in cases of a mentally disabled adult, to allow their guardian to continue caring for them while also allowing the greatest degree of autonomy possible. The conservatorship may focus on the specific needs of the conservatee.
Conservatorships by Duration
- Short-Term – Typically lasting no more than 90 days, this is a conservatorship that addresses a specific and immediate need. This is most common when someone is unexpectedly incapacitated. If the jurisdiction allows conservatorships without a formal hearing, it will limit that authority to short-term conservatorships.
- Temporary – This is a conservatorship lasting for either a limited amount of time or under limited conditions. For example, if someone enters a medical coma, a judge might grant a temporary conservatorship until such a time as the individual wakes up.
- Permanent – Barring a change in circumstances, this conservatorship will last for the rest of the individual’s life. The individual may file to have it rescinded but will need to present their case and receive a court order in order to succeed.
How to Get a Conservatorship
Conservatorship is granted when the individual in question no longer has the capacity to make decisions on their own behalf. In virtually all cases, this is a judgment based on mental incapacity. Physical incapacity will rarely, if ever, create a basis for legal guardianship.
Mental incapacity takes a few different forms, with some of the most common being:
- Coma or total incapacity: The individual is physically incapable of responding, making a decision or communicating a decision.
- Illness (Alzheimer’s, dementia etc.): In this case, the individual is considered mentally incapacitated, even if they can clearly communicate intent.
- Permanent or genetic disability: The individual has a permanent mental disability that prevents them from ever reaching legal maturity or independence.
The general test for a conservatorship is whether the individual is capable of knowing and understanding their actions. Here are a couple examples of questions you might hear:
- Is the individual capable of providing for their basic needs, such as food, sanitation and shelter?
- Is the individual a danger to themselves?
Remember that the administration of a conservatorship is a legal proceeding. While details will vary across jurisdictions, an officer or appointee of the court must be the one to grant a conservatorship. This matter is typically handled by either a state probate court or a family court with hearings typically held by a judge or a magistrate. With the rare exception of short-term orders during exigent circumstances, a conservatorship can only occur after a full hearing. It could even be a part of your personal estate plan.
Most, if not all, jurisdictions require medical paperwork before granting a conservatorship. However, in all circumstances the potential conservatee must have an opportunity to be heard by the decision maker and present their own case as to why a conservatorship should not be granted.
Further, an individual has the right to challenge a conservatorship in court if they disagree with the outcome. This is because a conservatorship involves stripping a free adult of certain aspects of his or her freedom. No court may do that without granting the individual in question the right to be heard.
What Responsibilities Does a Conservator Have?
As a conservator, you must make decisions on behalf of your conservatee. You are considered a fiduciary, meaning that you have a legal obligation to make decisions in the conservatee’s best interest to the best of your knowledge, belief and ability. The court can enforce this on its own authority. So can relatives or other interested parties who can sue you personally if they have reason to believe you did not act in the conservatee’s best interests.
In the case of a financial conservatorship this means ensuring that the conservatee’s bills are paid, taxes filed and investments overseen, among other duties. You must make sure that they have money to pay for daily necessities and, if necessary, make those purchases yourself. In the case of a physical conservatorship, this means making sure that the conservatee receives any necessary health care and is in a living situation safe for them.
Above all else, the conservator must not use the conservatee’s resources for their personal gain. If a conservator places their conservatee in a living facility, for example, the conservator may not move into their home. A financial conservator absolutely cannot use the conservatee’s money for their personal benefit.
To ensure this, conservators answer to the court which appointed them. While the details will vary, they must keep full records of every decision they make on behalf of their conservatee and must periodically present this information to the court. For a financial conservator, this means keeping receipts and other financial records along with an accounting of the purpose behind each transaction.
For a physical conservator, this means keeping all health records and medical recommendations that support any decisions. Often the state will require that the conservator have a doctor’s recommendation before making any health-related decisions.
Depending on the state, larger or more permanent decisions may require a court order. For example, some states require approval from the court before the conservator can sell land, securities or other major property. Others will require a court order before allowing the conservator to commit the conservatee to a long-term care or assisted-living facility.
Rights of a Conservator
As a conservator, it’s generally wise to receive a court order for any significant decisions, even if you don’t need to. As long as you present the court with all the information you had, it will provide your actions with legitimacy.
Conservators can, in fact, receive pay. Even as a family member or friend, you may earn payment for the time you spend managing the conservatee’s affairs. While this can range widely based on circumstances, most conservators claim between $40 and $100 per hour for their work. You will want to make sure to fully document your hours, not just the time that you spent but what you did during that time, as you must present your hours to the court in order to receive compensation.
In most cases, the conservatee’s finances is the source of the payment. As a result, many individuals who hold conservatorships over friends or loved ones choose not to accept pay, as they don’t want to take money from someone already in a difficult situation.
How Does a Conservatorship Compare to Power of Attorney?
Power of attorney (POA) can accomplish many of the same things as a conservatorship. It gives someone the authority to make legally binding decisions on your behalf. The scope of POA can be as narrow or as broad as you choose. Unlike a conservatorship, however, it is exercised at the discretion of the individual. This means that someone can grant power of attorney to whomever they wish and can revoke it whenever they wish.
This is often an option exercised by individuals who want to prepare for their own incapacitation. They may draft a POA form empowering someone to make financial, healthcare or other decisions on their behalf. Provided this occurs when the individual was of sound mind, this will supersede any conservatorship.
A conservatorship can ensure that a loved one’s personal finances and healthcare issues are properly handled. This is done only after that person is no longer able to make good decisions about such matters. It’s best to discuss that option with the potential conservatee before a conservatorship becomes necessary.
Likewise, if you want to make sure that your affairs are prudently and sensitively handled should a disability or disease compromise your abilities to make good decisions, it’s best to discuss that with the person or persons you have confidence would make good conservators.
Tips for Managing Your Estate
- Many financial advisors have experience with conservatorships and can be an invaluable resource for your family. Consider talking to a financial advisor about adult guardianships. Finding the right financial advisor doesn’t have to be hard, as SmartAsset’s free tool matches you with financial advisors in your area in just five minutes. Get started now.
- State and city laws are the determining factors for a conservatorship’s composition. That means it’s essential you should consult an attorney. An attorney who specializes in this field can help you decide between conservatorship or power of attorney.
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