8 Things to Know Before Becoming a Conservator of Someone’s Estate

When you hear phrases like durable power of attorney, guardianship, or conservator, you may instantly think of your elderly grandparents or 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 after falling on the stairs. She was only 50 years old. A court-appointed guardian made decisions that ultimately led to the guardian being sued.

You need to know eight things before becoming a conservator of someone’s estate.

1. Guardian or Conservator?

First, you must clarify whether you will 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.

Generally, guardianship is appointed for a child, whereas conservatorship is set for an adult. In some places, a conservatorship is referred to as an adult guardianship.

Once again, as a general rule, guardianship focuses on making decisions for the principal (the incapacitated person) that are not financial. These decisions tend to focus on day-to-day matters, healthcare, and any issues related to the illness or disability the principal may be experiencing.

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 deemed appropriate, the court can select the same person as 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 for a time when they foresee they may become mentally incapacitated and need someone to make decisions for them. When applying for a durable power of attorney (DPA), individuals must be able to control their mental faculties completely.

If someone has already planned with a DPA, applying for guardianship or conservatorship may not be necessary. 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 court appoints the conservator to make decisions and manage the conservatee’s financial affairs. 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 rather involve the person themselves, such as where they live, what they wear, and what they eat. 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 considerable freedom to use the conservatee’s assets as they see fit, in the conservatee’s best interests.

This is legally supervised through the submission of annual reports to the court. Furthermore, the conservator must obtain court approval for all significant 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. The family cannot initiate this, but must come from the local court.

4. The Good and the Bad

The advantages of 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 who has become mentally incapacitated in a way that was not expected.

Disadvantages include the possibility that the conservator may not be a family member and may not make decisions that genuinely reflect the conservatee’s best interests. Alternatively, they may be family members who abuse 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 continuously. There may even be a requirement to pay a bond that protects against the abuse of the legally appointed power. However, you will need a conservatorship attorney if there is no DPA.

5. Legal Process for Conservator

How does all of this work in reality? The process follows the basic steps below:

1. File an application/petition for conservatorship with the court
2. Collect a ‘Notice of Hearing’ from the Probate Division
3. Within three days, make sure the ‘incapacitated’ person receives this document
4. Step three is called ‘serving the papers’ and is essential
5. After this, you complete an affidavit and get it notarized
6. You must file the above with the court
7. The judge will appoint a team to begin an investigation
8. A date will be issued for a court hearing, which you will need to attend

These are the basic steps, but the details may vary depending on where you are filing your petition.

6. Compensation

As mentioned, the process can be expensive, as legal help must be employed throughout and on an ongoing basis as needed. The costs for this are covered by 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 render a conservatorship unnecessary. The primary reason may be that the conservatee dies. It is also possible that the conservatee regains their mental capacity and no longer requires assistance. A further reason to end the conservatorship is that the conservatee’s assets have been depleted, and nothing remains. It is also possible to resign from a conservatorship.

8. Is It for Me?

Ultimately, you must ask yourself if this is the right choice for you. Please note that being a conservator is not an easy task. It is a big responsibility and will come with its stresses and pressures. This is particularly true when the conservatee is a family member. It can be emotional and tiring. Ultimately, it is your decision, which you must 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.