Conservatorship is the legal process where a court steps in to appoint someone to be in charge of your finances or other personal affairs if you’re unable to make decisions on your own. It’s a fairly complex matter, and while this guide is a good start to help you understand the basics, keep in mind, this is only a guide. You definitely should consider speaking to an expert who can advise you on the ins and outs of Conservatorship. You want to have a full understanding of everything related to being or having a Conservator in the state you live in.
For now, you can learn a basic understanding of the concepts, including:
A Conservatorship is the legal term for an actual court proceeding. It basically is when a judge determines who should take over for a person or organization as a Conservator, or Protector. Other names may be used, depending on the state you’re in. Often, Conservatorship is in reference to a person, but it can also be appointed for an organization.
A Conservator would handle financial and personal daily life-matters that need attention when and if you become incapacitated. It’s a term often confused with Guardianship, however the two are actually different when it comes to the law. Guardians handle mostly non-financial issues (like making medical decisions), whereas Conservators can focus more on the financial decisions in life.
Conservatorships are valid in every state, but they’re governed differently in accordance with state or individual laws.
What Does a Conservator Do?
Conservatorship can mean many things. The actual requirements can vary depending on the type of Conservator, the parameters around the need and appointment and the state where it is put into place.
That said, a Conservator generally references legal responsibilities to care for someone who’s mentally or physically incompetent in some form. This could include emotional or physical limitations, or any other reason a person would be unable to make major healthcare, living situation, legal, financial or business-related decisions on his or her own.
Types of Conservatorship
There are five basic types of Conservatorship. It’s important that you understand the differences between each, as there are some distinct nuances between them.
LPS (mental health) conservatorship
A General Conservatorship is what would be appointed in cases where a legal adult is unable to manage personal affairs and finances. Often, a General Conservatorship will come into play for an elderly person who can no longer care for themselves due to a major accident, illness or other injury resulting in incompetence.
Limited Conservatorship is similar to General, but it’s the type that would be established when an adult has a developmental disability that results in them not being capable of handling personal matters and finances on their own.
LPS (Mental Health) Conservatorship
LPS Conservatorship (Lanterman-Petris-Short Act) is a California-based act that was introduced in the late 1960s. It was written to prevent indefinite holds in cases of a Mental Health Conservatorship. LPS Conservatorship establishes authority over a Conservatee who has a serious, defined mental illness resulting in an inability to care for him or herself. It starts with a 30-day, temporary appointment, but can be appointed in one-year terms. It can be renewed or terminated at the end of each year. While an LPS Conservatorship is just for the state of California, other states may have similar types of Conservatorship proceedings. It may be known as Mental Health Conservatorship, Involuntary Mental Health Conservatorship, Psychiatric Conservatorship or another name, depending on the state.
Probate Conservatorship is another term for Conservatorship over an adult. There are two types of Conservator that could fall under Probate Conservatorship.
Conservator of the Person establishes authority for a Conservatee to protect a person should he or she be unable to protect themself.
Conservator of the Estateallows a Conservator to make financial decisions for a Conservatee.
A Financial Conservatorship is when the court appoints a Conservator to handle financial affairs for someone incapacitated. It is typical in cases where an aging family member can no longer care for his or her own finances. The appointment allows the Conservator to manage assets and may be put in place to protect the Conservatee from elder abuse.
Who Needs a Conservator?
There are different instances where Conservatorship may be necessary or beneficial to protect someone. If a Healthcare Directive or a Durable Power of Attorney isn’t in place and someone becomes incapacitated, the courts will step in to appoint a Conservator.
Conservators can be appointed during many life stages, but they make sense particularly if someone is incapacitated due to:
Alzheimer’s disease or dementia
Brain injury or stroke
Injury or illness
Conservatorship vs Guardianship
There are some distinct differences between Conservatorship and Guardianship. Both are court-appointed individuals who can make decisions on behalf of someone incapacitated. But for the most part, Conservators focus on financial decisions while guardians handle more health-related or personal needs. Conservatorship also typically refers to an adult over the age of 18 who is elderly, incapacitated, mentally disabled or otherwise unable to make wise financial decisions for themselves. Guardianship is generally in relation to minors. Note that these descriptions are accurate in most states and cases, some states may apply terms slightly differently.
How to become a Conservator
Most often, a Conservator will be a family member, spouse or close friend. If there is nobody available or willing to take on the role, a court can appoint a professional Fiduciary or agency to step in. Though the process may slightly differ based on the type of Conservatorship being appointed, the basic steps are the same.
Decide which type of Conservatorship is best . There are two basic types of Conservatorship, and the one that’s best will depend on need. A Conservator of the Estate handles financial issues, while a Conservator of the Person is in charge of both personal and/or medical decisions. They can be the same person.
File a petition in court. Request the appointment of Conservator through a petition. The court will review and accept the the petition for filing, at which point a hearing will be scheduled.
Appoint an attorney and examiner to assess. An attorney will be appointed, and a court-appointed examiner will assess mental capacity, decision-making ability and need.
Holdcourt hearing . During this hearing, a judge will listen to the facts presented and make a decision to appoint a Conservator. The Conservatee may or may not be required to be present at the hearing.
Other Common Questions about Conservatorship
How Much Does Conservatorship Cost?
Conservatorship costs vary based on a number of factors, but generally include:
A filing fee: Filing fees can depend on the state. They can be anywhere from a couple hundred dollars to $1000 or more.
Attorney fees: An attorney may be involved in a Conservatorship proceeding, and if so, there will be fees for his or her services. Some, but not all, states have fixed attorney fees.
Other professional fees: There will likely be fees for nurses, social workers or any physicians who are engaged to help decide on incapacitation.
What Does Conservatorship Mean?
Conservatorship means a Protector has been legally appointed during a court proceeding. This Protector, or Conservator, is authorized to handle the affairs (financial, personal, health or other) of a Conservatee, who is the person under the Conservatorship.
How to Fight Conservatorship?
Conservatorship can be fought or contested. The first step to fighting Conservatorship is to contest the original petition that’s filed. You can also file competing petitions if you’re trying to stop a specific person from being awarded Conservatorship.
How Long Does a Conservatorship Last?
Conservatorship immediately ends once a Conservatee dies. It can also end if it’s no longer needed. If the person appointed Conservator is no longer able or willing to serve, the court will appoint a new Conservator as long as there is still need.
Will My Power of Attorney Work for Conservatorship?
POAs might work depending on two major factors. First, you must have created what’s known as a Durable POA while you were still of sound mind. Durable means it will stay in effect even after you become incapacitated. The second part of this has to do with what type of Durable POA you created. If it was only pertaining to healthcare-related matters and not financial, or vice versa, then the court will likely still appoint a Conservator.
What Is a Ward?
A Ward is an incapacitated person who needs a Conservator.
What is the Difference Between a Conservator and a Conservatee?
A Conservator is the person appointed to make decisions and handle affairs on behalf of a Conservatee. The Conservatee is the person who is unable to make decisions or care for themselves and needs assistance.
Can a Guardian be a Conservator?
Sometimes, a Guardian can also be a Conservator. But in most cases, guardians will only handle very small financial aspects of life on someone’s behalf. They can deal with things like Social Security benefits and monthly stipends, but not much more than that.
Many states will require a Conservator also be appointed in addition to a guardian if the assets exceed a certain limit, often around $24,000 per year.This might be the same person if appointed by a judge, but it can also be two separate people.
Conservatorship is an often messy, confusing and difficult time for almost every member involved. But it doesn’t have to be that way. Avoid the need for a Conservator by having a solid Estate Plan that addresses who you would like to have in charge of your affairs should the need arise.
Learn more about how to create an Estate Plan that ensures your future will play out exactly as you envision it, even if you can no longer express your wishes. Today is the day you should prepare for tomorrow.