Conservatorship FAQ

1. What is a Conservatorship?
2. How Can I Avoid a Conservatorship?

What is a Conservatorship?

A conservatorship is a legal proceeding in which the probate court confirms that an individual (conservatee) is incompetent to handle his or her own affairs and confers powers to another individual (conservator) to make decisions regarding the conservatee’s property and/or personal care. Depending on circumstances, the court may withhold certain powers and require the conservator to ask permission of the court to take certain actions. As with probate administration, conservatorship proceedings are open to the public, time consuming and expensive.

There are two kinds of conservatorship: of the person and of the estate. The conservatorship of the person allows the conservator to make decisions only regarding the physical and mental well-being of the incompetent person, such as what doctor to see, the course of treatment or physical therapy to follow and where to live. The conservator of the estate will take care of the property of the conservatee, deciding where to invest, collecting income and paying bills. Of course, this conservator is required to account periodically to the court to prove that he or she is handling the estate properly. Often both conservatorships are combined so that one person acts as conservator of the person and the estate.

Conservatorships are never easy. At a time when a loved one is suffering and unable to think for him or herself, someone must find an attorney to petition the court to get the appropriate powers to enable someone else to act for the suffering relative. This requires a court hearing approximately six to eight weeks after it is requested, with notice of that hearing going to all relatives and other interested parties, and preparing extensive paperwork to present to the court to prove the inability of conservatee to handle his or her affairs and the suitability of the proposed conservator to take care of this person’s affairs properly. If no one objects, a conservator will be appointed. Contested hearings are a whole other can of worms: additional expense and time, with more attorneys, witnesses and experts! (Temporary conservatorships may also be granted on an expedited basis for compelling or emergency purposes.)

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How Can I Avoid a Conservatorship?

An Advance Health Care Directive eliminates the need for a conservatorship of the person. This type of document allows you to name a relative or friend to make health care decisions for you if you are in an accident or become so ill you are unable to make these decisions yourself. This document is also a directive where you spell out your desires regarding your health care, including the directive to your agent to remove life sustaining measures if those measures are the only things keeping you alive.
A Durable Power of Attorney for Property Management avoids a conservatorship of the estate and allows you to appoint someone to handle your finances and investments if you are unable to do so because of incapacity. It allows your agent to act on your behalf to buy or sell assets, to collect income and pay bills. It also allows that person to sign your tax returns and apply for governmental benefits due you.

Both documents are amendable and revocable at any time. They can be made effective immediately or when a doctor declares you incompetent to manage your affairs. The documents can either have a limited duration or last as long as the principal is alive. The powers of each can be limited or broadened. Neither document requires a judge to be effective.

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