Conservatorship is the legal process where a court steps in to appoint someone to be in charge of an individual’s finances and other personal affairs if they are unable to make decisions on their own.
Conservatorships were created to afford protection for disabled individuals. Without a conservatorship, the law will consider every adult above the age of 18 or 21 (depending on the state the individual lives in) to be a fully functioning adult.
A child with special needs or a disabled adult who cannot make decisions on their own can benefit from a conservatorship.
If you have been following the news this past couple of months, you must have heard or read of the conservatorship battle between Britney Spears and her father.
In this post, you will learn:
What is Conservatorship
Under the US law, Conservatorship is the appointment of a guardian or a protector by the judge to manage the financial affairs and/or daily life of another person due to old age or physical or mental limitations.
Conservatorship can either be appointed for an individual or an organization. In this post, we will discuss conservatorship for a person.
Many a time, Conservatorship can be confused with guardianship. Guardianship basically deals with all the non-financial decisions of an individual – medical decisions and such – whereas Conservatorship is inclined towards the financial decisions of an individual.
Either way, it is good to remember that Conservatorship comes into picture only when it is a child with special needs or an adult who is incapable of making decisions due to physical or mental limitation.
What does a Conservator do?
A conservator is legally responsible for a mentally disordered, including individuals who are psychotic, suicidal, demented or incapacitated, or in some way not able to make legal, medical or financial decisions on their own.
What are the types of Conservatorship?
A General Conservatorship is appointed when a legal adult is not able to make financial or personal decisions on their own. This type of conservatorship usually comes into play when an elderly person can no longer take care of themselves due to medical reasons.
Limited Conservatorship is similar to General Conservatorship albeit one difference – it is established when an adult is unable to make financial or personal decisions due to developmental disability.
LPS (Lanterman-Petris-Short) Conservatorship is a California-based act and was written to prevent infinite holds in cases of Mental Health Conservatorship.
An LPS Conservatorship comes into play when an individual has a serious and defined mental illness and cannot take care of themselves. It starts with a 30-day temporary appointment and also be appointed in one-year terms which will then be renewed or canceled after a lapse of the tenure.
LPS Conservatorship might just be for the state of California but other states have similar conservatorship proceedings. These might be known as Mental Health Conservatorship, Involuntary Mental Health Conservatorship, Psychiatric Conservatorship or any other name, depending on the state
A Probate Conservatorship is a court proceeding where a judge appoints a responsible person to care for another person who cannot take care of themselves.
There are two types of Probate Conservatorship:
- A Conservator of a person who cares and protects an individual when the judge decides the individual is incapable of making these decisions on their own.
- A Conservator of an estate who handles an individual’s financial matters such as paying bills or collecting income – if the judge decides the individual cannot do it on their own.
A Financial Conservatorship is when a court appoints a Conservator to handle affairs of an incapcitated individual. This type of conservatorship comes into play when an elderly family member can no longer handle finances on their own.
Who needs a Conservatorship?
A Conservatorship is necessary for those who do not have a Power of Attorney or Advance Healthcare Directive, and have lost the ability to make informed decisions for themselves.
A Conservatorship might also be necessary in cases of an invalid or fraudulent Power of Attorney document.
When does a Conservatorship end?
A Conservatorship ends when:
- The Conservatee dies
- The Conservatee no longer needs this kind of assistance
- The Conservatee’s assets are used up (in case of financial conservatorship)
- The Conservator resigns or can no longer handle responsibilities of a Conservatee
Remember, a Conservator must act until the court issues an order ending their responsibilities.
How to avoid Conservatorship?
The best way for an elderly person to avoid Conservatorship is to prepare a durable power of attorney before a health crisis occurs. This way, the individual can choose who should look after their financial and personal affairs when they are no longer capable of making these decisions on their own.
Can a Conservatorship be opposed?
Anyone, including the Conservatee, family members and friends, can object to the Conservatorship in general, or to a specific choice of the Conservator.
A person who wants to block a Conservatorship must file papers with the court, inform all interested parties (the proposed conservatee, family members and close friends) and attend a legal hearing.
When a Conservatorship proceedings begin, the judge hears the evidence on the Conservatee’s mental capacity. If the judge decides a Conservator is necessary, they can appoint one – mostly a family member.
It is very rare for a Judge to pick someone other than a family member as a Conservator. Without any strong evidence of what the Conservatee would have wanted, it is unlikely that a non-relative will be appointed as Conservator – especially if a relative is available to serve the position. This might backfire sometimes, especially if an estranged relative is chosen as COnservator instead of the Conservatee’s partner or close friend.
In cases where a suitable Conservator is not available to serve the position, the judge may appoint a public or other professional Conservator.
Are Conservators compensated?
Conservators are reimbursed for expenses and paid for their services from the assets of the Conservatee. Payments must be ‘reasonable’ in the eyes of a court.
Generally, payments are only made to a public or professional conservator but a family member who has been made a Conservator can also seek compensation by making a request to the court.
Financial Support to someone under Conservatorship
The role of a Conservator is only to manage a Conservatee’s assets and make personal decisions on their behalf.
However, a Financial Conservator has the responsibility to seek all financial benefits and coverage for which the Conservatee may qualify. This includes social security, medical insurance, veterans administration benefits, pension and retirement benefits, disability benefits, public assistance, and supplemental security income.
When needed, close family members – including the conservator – often use their own money to help support a conservatee.
Conservatorship is often a messy and difficult time for all those who are involved. But there are ways in which you can avoid Conservatorship. One of such ways is to create a solid Estate Plan. By preparing for your Estates and creating a Power of Attorney or Advance Directive document, you are making sure your personal, financial and medical decisions are taken by the person of your choice and as per your wishes.
When you create an Estate Plan, do not forget to make arrangements for your Digital Assets. Your Online Accounts are as important as your physical assets and unless you make arrangements as to who must handle them after you’re gone or no longer in capacity to handle them on your own, they are prone to identity thefts and hacking.
Sign up with Clocr today and create your Digital Estate Plan – an Estate Plan exclusively crafted for your Digital Assets. You can also use our services to create a Digital Will – a Will for your Digital Assets.