When you hear phrases like durable power of attorney, guardianship, or conservator, you may instantly think of your elderly grandparents or even your parents. If for any reason, they become mentally incapacitated, they would need someone to make decisions on their behalf.
However, you may never consider yourself in the equation. Yet, it is frightening to realize how vulnerable everyone is to situations where they can quickly become mentally incapacitated.
For example, one lady whose story made the media was incapacitated through a fall on the stairs. She was only 50 years old. A court-appointed guardian made decisions that, in the end, led to the guardian being sued.
Here are eight things you need to know before becoming a conservator of someone’s estate.
1. Guardian or Conservator?
The first thing you need to clarify is whether you are going to be appointed as a guardian or conservator of the estate. What is the difference? Depending on where you live, the definitions could be slightly different. The fact is, both roles overlap to some degree.
As a general rule, a guardianship is appointed for a child whereas a conservatorship is appointed for an adult. In some places, a conservatorship is referred to as an adult guardianship.
Once again, as a general rule, a guardianship is focused on making decisions for the principal (the incapacitated person) that are not money based. These decisions tend to focus on day to day matters, healthcare, and anything relating to the illness or disability the principal may be suffering from.
In contrast, the conservator makes decisions that include how the principal’s finances are used. Bear in mind that both these roles are appointed by a court after considering all the facts. If they deem appropriate, the court can appoint the same person to be both guardian and conservator.
2. Durable Power of Attorney
This is not a reactive legal mechanism. It is a proactive mechanism designed to help people plan ahead for a time when they foresee they may become mentally incapacitated and need someone to make decisions for them. At the time of applying for the durable power of attorney (DPA), they need to be in full control of their mental faculties.
If someone has already planned ahead with a DPA, it may not be necessary to apply for guardianship or conservatorship. These legal provisions are primarily for situations where a DPA does not exist.
3. Legal Speak
There are different types of conservatorships. Here’s a list of the main types and responsibilities below:
i. Probate Conservator
This is the type of conservatorship that most people would expect. The conservator is the person appointed by the court to make decisions and manage the financial affairs of the conservatee. In the event a person becomes mentally incapacitated, the family of that person can petition the court to appoint someone in the family as the probate conservator.
ii. Conservator of the Person
This involves making decisions that are usually not financial but involve the person themselves, such as where they live, their clothing, and food. It also includes the medical care they receive. Each year, the conservator of the person is responsible to the court by submitting a report that shows they are executing their role responsibly and legally.
iii. Conservator for the Estate
This person is appointed by the court to handle the legal and financial affairs of the person. Overall, the conservator has great freedom to use the assets of the conservatee as they see fit and in the interests of the conservatee.
This is legally supervised through the submission of annual reports to the court. Further, the conservator must seek approval from the court for major transactions. This type of conservator should not be confused with property guardianship.
iv. Lanterman-Petris Short (LPS) Act
This type of conservatorship is designed to give the power of decisions and care to someone else when the conservatee is greatly incapacitated through things like the abuse of alcohol and drugs. This cannot be initiated by the family but must come from the local court.
4. The Good and the Bad
The advantages to using a conservatorship are self-evident. It is a legal process that potentially allows the family to make sound decisions on behalf of a relative that has become mentally incapacitated in a way that was not expected.
Disadvantages are that the conservator may not be family and may not make decisions that truly reflect the best interests of the conservatee. Or, alternatively, they may be a family member who abuses the legally appointed privilege.
Furthermore, the process can be time-consuming and potentially expensive. There can be ongoing court hearings, and legal assistance must be used in an ongoing manner. There may even be the requirement of paying a bond that acts as a protection against the abuse of the legally appointed power. However, if there is no DPA, then you will need a conservatorship attorney.
5. Legal Process for Conservator
How does all of this work in reality? The process follows the basic steps below:
- File an application/petition for conservatorship with the court
- Collect a ‘Notice of Hearing’ from the Probate Division
- Within three days, make sure the ‘incapacitated’ person receives this document
- Step three is called ‘serving the papers’ and is essential
- After this, you complete an affidavit and get it notarized
- You must file the above with the court
- The judge will appoint a team to begin an investigation
- A date will be issued for a court hearing, which you will need to attend
These are the basic steps, but they may vary in detail depending on where you are filing your petition.
As mentioned already, the process can be expensive as legal help needs to be employed throughout the process and ongoing according to need. The costs for this come from the estate of the conservatee. That said, the conservator may be entitled to some compensation on an hourly basis. This is a practical measure.
7. Ending the Process
There may be several events that end the need for a conservatorship. The primary reason may be the conservatee dies. It could also be that the conservatee recovers their mental capacity and no longer needs the help. A further reason to end the conservatorship is that the assets of the conservatee are finally consumed and there is nothing left. It is also possible to resign from a conservatorship.
8. Is It for Me?
Finally, you have to ask yourself if this is right for you. Please know that being a conservator is not easy. It is a big responsibility, and it will come with its own stresses and pressures. This is true when the conservatee is a member of the family. It can be emotional and tiring. In the end, it is your decision which you need to make carefully.
Conservator – Final Thought
You are now in a much better position to know whether you should take on the responsibility of being a conservator or not.
Whatever you do, you will need excellent advice and support from experts in the field. Don’t delay in discussing this with those who have much more experience.
In the meantime check out our other articles with excellent legal advice here.