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The Law Office of William C. Behrndt assists families in all aspects of family law and criminal defense by providing expert legal advice, effective negotiation, and as needed, aggressive litigation.

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Conservators

A conservatorship is a legal arrangement in which an individual, a conservator, has court permission and responsibility to manage the affairs of another adult who is in need of assistance, referred to as an incapacitated person.


When is a Conservatorship Required?

A conservatorship may be necessary when the incapacitated person can no longer care for his or her own affairs. The incapacitated person may have mental or physical problems preventing them from managing their own financial affairs.


Appointment of a Conservator

The appointment of a conservator varies from state to state. Typically, the individual seeking to be appointed as the conservator files a petition with the court where the allegedly incapacitated person resides. Medical affidavits or other documents may be attached to the petition to support the prospective conservator's position. Professionals will evaluate the allegedly incapacitated person. A guardian ad litem may be appointed to report to the court on behalf of the allegedly incapacitated person.


If the allegedly incapacitated person protests the appointment of a conservator, a trial may be scheduled and the court will determine whether the prospective conservator has met her burden of proof. If the allegedly incapacitated person consents to the appointment of the conservator or is unable to respond due to a disability such as a coma, the court will hold a hearing to determine whether the appointment of a conservator is necessary. If the court deems that the evidence supports the contention that the allegedly incapacitated person is incapacitated, the court will appoint a conservator.


Most often the court follows state law when determining whom to appoint as a conservator. Generally, courts give preference to the spouse of the incapacitated person, adult children or siblings, or other blood relatives. Other individuals may be considered for the position of conservator. The judge has the discretion in determining which individual would serve in the best interest of the incapacitated person.


Conservator's Duties

The conservator has a number of duties. The court may specify the conservator's duties or they may be governed by statute. Some of the duties include:

  • Posting bond after appointment as a conservator, unless waived by the court. The bond requirement is commonly waived.
  • Taking an inventory of the incapacitated person's assets and reporting the assets to the court.
  • Opening a bank account that will reflect the conservator's position, if the conservator has to pay debts on behalf of the incapacitated person.
  • Responsible to account for all expenditures and assets of the estate.
  • Maintaining assets that require maintenance.
  • Seeking other financial assistance for the incapacitated person, such as Social Security, medical benefits, government or employment benefits, if needed.

 

Advantages of a Conservatorship

Conservatorships are subject to court supervision to prevent the conservator from mismanagement. Most courts require the conservators to report on the status of the incapacitated person's estate periodically. The conservator is also required to give an accounting with respect to all of the incapacitated person's assets. Some courts also require that the conservator seek permission before selling personal or real property or before transferring large sums of money.


Disadvantages of a Conservatorship

Conservatorships are expensive and time-consuming. There may be a lot of court proceedings with respect to the conservatorship, which will cost the incapacitated person's estate money. There is a lot of tedious paperwork that must be completed and submitted to the court. The conservator must be organized and aware of everything that is ongoing with the estate. Although there is a lot of court supervision with respect to a conservatorship, conservators are sometimes incompetent or abusive and their behavior may go unnoticed. A conservatorship may be trying on the incapacitated person's family and on the incapacitated person themselves.


Conservator's Compensation

The conservator will receive compensation from the incapacitated person's estate, if the compensation is available. The conservator's compensation is subject to oversight by the court.


Ending a Conservatorship

A conservatorship ends when the court that created it terminates it. The cessation of the conservatorship will occur if the incapacitated person recovers from the incapacity that required the execution of the conservatorship. The conservatorship may also end if the court removes the appointed conservator if they are not performing their job properly or if the conservator resigns. Additionally, the conservatorship ends if the conservatorship estate is used up and upon the death of the incapacitated person.


Avoiding a Conservatorship

A conservatorship may be avoided through estate planning. If the incapacitated person has executed a durable power of attorney or a limited durable power of attorney a conservatorship may be avoided. A durable power of attorney is a document, which gives the appointed individual power over financial matters. A limited durable power of attorney gives the appointed individual power over only certain financial matters. In most instances, if the durable power of attorney was properly executed in accordance with the applicable state requirements and laws then there would be no need for a conservatorship.