Conservatorship is the legal process of appointing a person (a conservator) to make financial decisions on behalf of another person (a protected person).
Thoughtful estate planning can often prevent the need for financial conservatorship. However, under certain circumstances it cannot be avoided. When you find yourself considering whether conservatorship is necessary to protect your loved one, your first step should be a consultation with a conservatorship attorney to support you through the next stages of the process.
Who Needs a Conservatorship?
Conservatorship is a way of protecting a person’s assets when they are unable to make decisions about their estate — including their bank accounts, real estate property and investments. This may be because of a medical condition or disability, or even because they have become unreachable or unable to be located. Sometimes, adults with special needs are appointed conservators even if they remain able to make their own day-to-day decisions and do not need an appointed guardian in addition to a conservator.
In other cases, courts appoint a conservator if there are concerns about how an estate is being managed by someone who is already making decisions on behalf of the estate holder, such as a trustee or their attorney-in-fact (a person who has been granted power of attorney).
When a person is unable to manage their finances and has no other plan in place for this kind of situation, a conservatorship may be necessary.
Who Can Be a Conservator?
The Probate and Family Court will determine who is capable of making the kinds of decisions addressed by a conservator.
Some typical choices are a parent or an agent who has already been nominated in a power of attorney. There is no guarantee the court will choose a conservator based on their relationship to the person who needs protection, and it can even be a stranger.
Unless they also happen to be a relative, a long-term care facility staff member or paid caretaker may not serve as a conservator.
What Does a Conservator Do?
A conservator’s duties may be very broad or very limited. A conservatorship might be temporary or even appointed for only a single transaction, such as depositing the inheritance of a disabled person into a trust to protect their public benefits.
General conservatorship duties might include:
- Managing the conservatee’s finances
- Maintaining accurate inventory of the protected person’s assets
- Planning for the protected person’s future financial needs
- Investing responsibly to protect the protected person’s assets
- Paying the protected person’s creditors on time
In a limited conservatorship, the judge will specify what the conservatorship covers. Some examples of rights retained by a protected person under a limited conservatorship are:
- Have access to personal spending money
- Work with the conservator to plan a budget
- Donate to charities or other organizations
- Make decisions about the sale of property
- Establish and use lines of credit
An estate planning lawyer can help you designate your preferred conservator — and which rights you would prefer to retain in certain circumstances — in the event that a conservatorship is ever needed.
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Do I Need a Conservatorship If I Have Power of Attorney?
That depends on what the power of attorney covers. If a power of attorney is already in place, it might be best to expand the powers of attorney before taking on the additional expense and effort of seeking a conservatorship.
How Do I Obtain a Conservatorship?
The process for filing for conservatorship can be complex. The first step is filing a petition with the Probate and Family Court along with documentation of a medical professional’s recent evaluation of the person who needs protection.
Much like probate of a will, all interested parties must be notified. Sometimes, a temporary conservator will be appointed during the conservatorship process, which can be lengthy.
What Does a Conservatorship Lawyer Do?
Conservators may not pay themselves for their services without court approval, but this does not mean that conservators are expected to personally take on the expense of the work they are doing for the protected person.
Conservatorship attorneys can help ensure that the conservator is paid reasonably to take on the responsibility of an estate, and it is generally expected to be the protected person’s estate itself that pays the attorney fees.
How Do I Avoid Conservatorship?
Conservatorship is a very serious situation that is not reversed easily. By working with an experienced wills and estate lawyer who can help you consider many different scenarios, you can take steps now to avoid conservatorship in the future.
Powers of attorney and trusts are two estate planning tools to consider, and an estate planning attorney can help you assess the best pathway for your family.
Whether you need representation while navigating the conservatorship process or want to speak with someone about your own estate planning, The Law Offices of Kimberly Butler Rainen can help you prepare for the most difficult of times. Contact our office to schedule a consultation.
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