Conservatorship
The legal term conservatorship refers to the appointment of a guardian to manage the affairs of an individual who is physically or mentally unable to care for himself. A conservator is appointed by the court, and may be appointed to manage only the individual’s financial affairs, or to manage the individual’s “person,” seeing to the activities and needs of daily living. To explore this concept, consider the following conservatorship definition.
Definition of Conservatorship
Noun
- The legal responsibilities of a conservator, or guardian, as established by a court of law.
- The establishment of a guardian relationship over a person unable to manage his or her own financial affairs or daily life activities.
Origin
1400-1450 late Middle English
What is a Conservatorship
A conservatorship is a legal relationship created by a judge, in which an adult individual, or an entity, (a “conservator”) is appointed to manage certain aspects of another person’s (a “conservatee”) life. Commonly, a conservator manages and protects the conservatee’s interests in financial and property matters. A conservator may also be appointed to protect and manage daily life activities, such as healthcare, home care, rehabilitation or therapeutic treatments, and other matters, though in many states, an individual appointed to oversee this type of personal care is referred to as a “guardian.” A conservatorship may grant full or partial responsibilities to the conservator, and may be temporary, as ordered by the court. In addition, a conservatorship may be ordered jointly, assigning specific responsibilities to more than one conservator.
Duties of a Conservator
A conservator must maintain continual contact with the conservatee to ensure he is familiar with the protected person’s limitations and needs. A conservator must maintain absolute confidentiality with the conservatee. The actual duties and responsibilities of a conservator differ as to their appointment to manage the protected person’s financial affairs, or his person. A conservator, whether personal or financial, must report periodically to the court regarding his management of the conservatee’s affairs, and must get court approval before making certain types of decisions about the conservatee’s healthcare, living arrangements, or financial investments.
Duties of a Conservator Over a Person
A conservator charged with managing a conservatee’s day-to-day living needs, care, and protection, must often decide where the conservatee will live, whether in his own home, with a family member, or in a care facility. The conservator must also make arrangements for such daily needs as:
- Daily Meals
- Clean Clothing
- Personal Care and Hygiene
- Housekeeping
- Health Care
- Recreation
- Transportation
- General Well being
Duties of a Conservator Over Financial Affairs
A conservator charged with managing and protecting the conservatee’s property and financial affairs must first locate and take control of the conservatee’s assets. In addition, the conservator then takes on such responsibilities as:
- Collecting the conservatee’s income
- Making a budget to determine what the conservatee can afford
- Ensure all of the conservatee’s bills are paid
- Protect the conservatee’s assets
- Responsibly invest the conservatee’s money to earn future income
Types of Conservatorship
In most jurisdictions, conservatorships are categorized according to the needs of the person to be protected. Probate conservatorships are usually ordered as “general,” or “limited,” and a special “LPS” conservatorship is ordered for individuals who require specialized care in a restricted living environment.
Probate Conservatorships
By far the most commonly used type of conservatorship, probate conservatorships differ in how much authority the protected person retains.
- General Conservatorship – ordered for adults who are completely unable to care for themselves or their finances, often due to impairment from a serious accident, dementia, or other health issue.
- Limited Conservatorship – often ordered for adults with developmental disabilities who are unable to completely care for themselves or their assets, but who are still capable of making many important decisions in their lives. A person protected by a limited conservatorship does not require the same level of day-to-day care as provided by a general conservatorship.
Lanterman-Petris-Short (LPS) Conservatorships
Lanterman-Petris-Short (“LPS”) conservatorships, commonly known as a “mental health conservatorships,” are for adults with certain serious mental illnesses listed in the Diagnostic and Statistical Manual of Mental Disorders (the “DSM”), requiring specialized care. The most common mental illnesses and brain disorders eligible to have an LPS conservatorship ordered include:
- Schizophrenia
- Schizo-Affective Disorder
- Bi-Polar Disorder
- Clinical Depression
- Obsessive Compulsive Disorder
Conservatees under an LPS conservatorship generally require special, restrictive living arrangements, such as living in a locked psychiatric facility, extensive ongoing mental health treatment, and a strict medication routine. Conservatees in need of an LPS conservatorship often will not, or are unable to, agree to such living arrangements and treatment on their own. Unlike a probate conservatorship, which may be requested by a family member or other person, LPS conservatorships may only be initiated by a governmental agency. Individuals who think a family member needs this type of help may find information by contacting their local Adult Protective Services agency.
Conservatorship vs. Power of Attorney
Both a conservatorship and a power of attorney give authority to an individual to act on someone else’s behalf. There are a number of differences between the two, however, the primary of which is how they comes about: a power of attorney is given to a specified person (called an “attorney-in-fact”) by the individual needing help, a conservatorship is ordered by a court of law.
Power of Attorney
Any competent adult can sign a power of attorney, specifying certain acts the attorney-in-fact can undertake on his or her behalf. A power of attorney can be as broad or limited as the individual desires, from authorizing the attorney-in-fact to purchase a specified piece of property, to giving him authority over all financial affairs. This general power of attorney is different from a power of attorney for healthcare, in which an individual gives a named attorney-in-fact authority to make healthcare decisions for him.
Conservatorship
A conservatorship is a legal relationship ordered by the court, giving an individual the authority to make decisions, whether financial or personal, for the conservatee. This type of court proceeding is initiated by a family member or friend by filing a petition with the probate court in the county in which the person needing care resides. The court requires submission of a medical opinion from a licensed physician to establish the conservatee’s condition, and what type of help the conservatee needs. While an attorney-in-fact performs at the request of the person needing help, a conservator performs according to a court order, and is required to report periodically to the judge as to the conservatee’s condition.
The Role of a Court Investigator in a Conservatorship
Many states utilize the services of a court investigator to look into proposed conservatorships to help ensure the needs of the conservatees are met. Often, the investigator will meet privately with the conservatee to discuss such issues as:
- How the conservatorship will affect his or her daily life
- What will occur at the court hearing
- The conservatee’s right to oppose the conservatorship, to be represented by an attorney, to have a jury trial, and to request a different conservator
- Discover whether the conservatee is willing and able to attend the hearing
In the event the conservatee is not able to understand the investigator’s discussion of the proceedings, or to offer an opinion, the investigator will likely recommend that an attorney or guardian ad litem be appointed to represent the conservatee’s interests.
Additional information the court investigator will look into includes a review of the conservatee’s confidential supplemental information, as well as the conservatee’s confidential medical records. The reporter then provides a report to the court, making recommendations to the judge regarding the conservatorship case. Once a conservatorship has been established, many jurisdictions require the court investigator to make contact with the conservatee and conservator once every year or two.
How to Establish a Conservatorship
The establishment of a conservatorship begins with the filing of a Petition for Appointment of Probate Conservator at the local probate court. There are certain people or entities who may request a conservatorship on someone’s behalf, including:
- The proposed conservatee himself
- The proposed conservatee’s spouse or domestic partner
- A relative or close friend of the proposed conservatee
- An interested local or state agency or entity
When appointing a conservator, the court makes its decision based on what is in the best interests of the conservatee. If the proposed conservatee nominates someone to be conservator, assuming he has the mental ability to competently express a preference, the court is likely to grant his or her wishes, appointing that individual as conservator. If the conservatee cannot choose a conservator, the law specifies a list of preferred people to act as conservator. In order, they are:
- Spouse or domestic partner of the conservatee
- Adult child of the conservatee
- Parent of the conservatee
- Sibling of the conservatee
- A public guardian
Alternatives to a Conservatorship
Before the court will grant a conservatorship, it must be sure there is not a better way to ensure the proposed conservatee’s needs are met. A conservatorship may not be necessary if the proposed conservatee:
- is able to cooperate in a plan to meet his or her basic needs
- has the mental capacity and willingness to sign a power of attorney naming an attorney-in-fact to take care of his or her finances or healthcare issues
- whose spouse or domestic partner can handle his or her financial affairs. in this case, the assets must be community property, or in joint accounts.
- whose sole income is social security or welfare, and who is eligible to have the Social Security Administration appoint a Representative Payee to manage his or her income.
For example:
Mary’s grown children feel she has been making some financial decisions that are detrimental to her financial well-being, perhaps due to slowly progressing dementia. Mary’s daughter, Pam, petitions the court to create a conservatorship, naming her as conservator over her mother’s financial affairs. The court investigator meets with Mary and discovers she is not only mentally competent, but willing to sign a power of attorney giving Pam authority over her finances, including management of investments and paying bills. At the hearing, the judge accepts the recommendation of the court investigator, and allows Mary to sign a power of attorney, rather than subjecting her to a conservatorship.
Related Legal Terms and Issues
- Assets – Property or finances owned by an individual or entity, and regarded as having value.
- Community Property – All property purchased or acquired by a couple during the course of their marriage or domestic partnership that is not a gift or inheritance.
- Guardian ad Litem – A legal guardian appointed by the court to represent the interests of a child or incompetent adult in a legal action.
