What is a Conservatorship?

In Short: The court-appointment of a person who is given legal authority and power over the finances and property of another person who is either a minor or who lacks the physical or mental capacity to properly make such decisions. 

A conservatorship is a formal, court-supervised, legal relationship.  A conservator is a person who is appointed by a court to manage the estate of a protected person. [2]  A conservator may be appointed for a person to be protected if the “Protected Person” (PP) is unable to manage property and business affairs effectively because of a clinically diagnosed impairment in the ability to receive or evaluate information or make or communicate decisions. [3]

The conservator’s authority over the PP is only granted to the extent necessary as limited by the PP’s physical or mental incapacities.  A conservator must encourage the PP to make decisions and to act on his or her own behalf. [4]  The conservator is required to use the PP’s funds for the support, education, care, or benefit of the PP and dependents. [5]

Petition Process

A petition for conservatorship may be brought by the person to be protected or any person with an interest in the estate, affairs, or welfare of the person to be protected.  Further, any person who would be adversely affected by lack of effective management of the proposed PP’s property and business affairs may petition for conservatorship. [6] Where disability (other than minority) is the basis for the petition for conservatorship a medical certificate must be filed with the court that sets forth the basis for the disability.

Temporary Conservatorship: A temporary conservator may be appointed where a court finds that without a temporary conservator, the person will suffer substantial harm to his/her property, income, or entitlements.  The term of a temporary conservatorship is 90 days. [7]

Duties

Conservators must act in the best interest of the protected person.

Conservators are given a fiduciary role in relation to all property of the protected person, unless the appointment restricts the role of the conservator to specific property. [8] Conservators must be apprised of all relevant facts concerning the protected person and the protected person’s property.  After identifying the protected person’s property the conservator must take control and possession while keeping the property distinct from the conservator’s own property. [9]

• Conservators have a duty to make decisions regarding the protected person’s investments.  Conservators should generally not invest speculatively.  Conservators are bound to act faithfully and honestly and to exercise the care, diligence, prudence, and skill of a trustee.  Conservators are liable for losses if the losses are caused by mismanagement or negligence on the part of the conservator. [10]

• Conservators have a duty to file income tax returns on behalf of the protected person; conservators should also file returns for previous years where such returns were not filed.

• Conservators should work with the court appointed guardian to ensure that the treatment decided on by the guardian can be afforded.  Conservators should review the protected person’s health insurance coverage and become familiar with what may or may not be covered.

• A conservator may be required to file a financial plan with the court that takes into account the needs of the protected person [11]

• Conservators must file an inventory with the court within 90 days of appointment.  The inventory must include all of the protected person’s property that has come into conservator’s possession or of which he or she has knowledge.  Conservators must file an accounting with the court at least annually which details:

• A listing of the balance of the prior account or inventory;

• A listing of the receipts, disbursement, and distribution during the reporting period;

• A listing of the assets under control at the end of the reporting period

• A listing of the services provided to the protected person;

• Any recommended changes in the conservatorship financial plan, the need for the conservatorship, or the scope of the conservatorship [12]

Conservators are entitled to reasonable compensation paid from the protected person’s estate for the work that they have actually performed. [13]

RIGHTS OF THE PROTECTED PERSON

Any person petitioning for conservatorship must provide notice to the protected person and his/her heirs at law, domestic partner, and anyone who the protected person has resided with during the 60-day period prior to the filing of the petition.

A protected person or someone on their behalf may request counsel for the protected person; the court will then appoint counsel.  Further, the court may make its own determination that the protected person’s best interests would be protected by an attorney and may independently appoint counsel to represent the protected person.  Counsel appointed to represent protected persons are generally compensated through the respective protected person’s estate; in some instances the court may make a determination that the petitioner must pay the appointed counsel’s fees.

Last updated by Debra Rahmin Silberstein on June 21, 2012.