Eldercare Planning: An Overview of Conservatorship

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A conservator is an individual or organization chosen by a court to protect and manage the finances of a person, sometimes called the protected person, who has been found by a judge to be unable to manage his or her own affairs. A person under conservatorship can be anyone, young or old, who has a temporary or permanent mental or physical disability and who cannot act in their own best financial interest. 

There are a number of reasons why someone would need a conservatorship, but the reasons usually all stem from a mental or physical disability. For example, a person may no longer be able to shop for food, may be unable to remember to pay their bills, may be giving away large sums of money to family, friends, or strangers. Regardless of the exact nature of the disability, the person is in need of assistance and can no longer manage their assets on their own.

Being Appointed a Conservator

A person can only be appointed as a conservator of another by a court. It is a legal process in order to obtain a conservatorship over a person who can no longer manage their assets. The process begins with the filing of a petition for appointment as a conservator. As a general rule, a court cannot begin the process on its own (sua sponte). Instead, the process must be initiated by another individual, typically a family member or loved one. Before a court can order someone to be appointed as a conservator, evidence of incompetence or lack of capacity must be presented at a hearing and the person who is alleged in need of a conservator must be given an opportunity to respond. This system of due process is aimed at preventing people from improperly obtaining a conservatorship over another. 

Role of Conservator

The position of conservator is one of great trust and responsibility. When a person is appointed conservator, they are entrusted with a large amount of responsibility. A conservator is always required to act in the best interests of the person under conservatorship. 

A conservator is authorized by law to make many financial decisions for the person under conservatorship. Some of the duties of a conservator may include, paying for food or cleaning services, transportation, housing, and paying other bills, and investing money and managing most other aspects of the person who is under conservatorship, financial affairs.

Making Decisions in a Conservatorship

Before making major decisions, a conservator should discuss the plans with the person under conservatorship as much as that is feasible and their attorney, and/or their family. Sometimes, a court may appoint more than one conservator. If a joint conservator is appointed, it is important for both conservators to discuss major decisions together before they are made. Remember, the goal and duty of the conservator is to act in the best interest of the person under conservatorship.

Rights of the Conservatee

When a person is under conservatorship, they do not automatically lose the right to make decisions concerning their care or wishes. A person under conservatorship retains all of the basic human rights that we are all entitled to. 

The person under conservatorship has the right to ask questions and to express concerns or complaints about the care or actions of the conservator. In fact, they can even ask the court to review issues with the conservator and even request that a new conservator be appointed. In certain situations, especially those where the person under conservatorship is alleging some form of negligence on the part of the conservator, the court may appoint an attorney to represent the person under conservatorship. In general, and under certain circumstances, the person under conservatorship may still retain the right to receive and control their salary, make or change a Will and more.

Termination of the Conservatorship

How long a conservatorship lasts depends on a variety of factors, including the nature of the appointment as conservator. In some cases, the appointment can be temporary, for example, in situations of temporary disability or lack of capacity of the person under conservatorship. While in other situations the conservatorship can last until the death of the person under conservatorship. This is usually the case when the person has a progressive disease like dementia. 

Typically, there are two ways for the conservatorship to end:

A conservatorship is an important legal process that can provide proper financial management to someone in need. The process can be long and is complicated. There is a great deal of responsibility associated with being appointed as a conservator. 

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