Introduction
Conservatorships and guardianships are protective proceedings that are designed to provide decision-making assistance and financial management for minors and incapacitated adults (referred to as a protected person or ward). In both cases, the protective orders are designed to remain in effect until the minor turns 18, or until the incapacitated adult no longer needs assistance. Given the intended permanency, there are only a handful of circumstances that may warrant ending a conservatorship:
- The ward passes away – this is the natural conclusion to a conservatorship, though it’s important to note that the protective order doesn’t simply end on its own. When the ward passes away, the conservator will need to submit a copy of the death certificate and file the appropriate forms to release the conservator and close the conservatorship. When the conservatorship is properly closed, control over the decedent’s estate will pass to his or her personal representative (i.e. the executor nominated in the will).
- The ward regains the capacity to handle their affairs – this scenario is common in cases where the incapacitated adult is recovering from a physical or mental condition that is temporarily disabling (e.g. a coma). When the ward regains the ability to manage their own affairs, any interested party can petition the court to end the conservatorship—that includes the conservator, family members, friends, and the ward. Depending on the situation, the judge may order the court investigator to evaluate the conservator’s condition before issuing an order to terminate the conservatorship. If the conservator is still partially incapacitated, the court may adjust the conservatorship to relinquish some decision-making abilities to the ward while retaining control over some areas for the conservator’s continued assistance.
- The ward’s assets are depleted – if the ward runs out of assets, there’s no longer a need for control of his or her finances, and therefore no further need for a financial conservatorship. If the conservator has control over the ward’s healthcare and living situation, the judge may amend the conservatorship to retain control over those affairs.
Appointing a New Conservator
When it becomes necessary to replace the appointed conservator, the court usually doesn’t end the conservatorship—instead, the judge will amend the conservatorship order to replace the previous conservator with a new one. As with the limited circumstances that justify ending a conservatorship, there are only a handful of circumstances that may warrant appointing a new conservator:
- If the conservator dies – when a conservator passes away, a family member, friend, or the conservator’s personal representative will need to inform the court. If the conservator had control over the ward’s assets, the conservator’s personal representative or attorney may be required to file a final accounting for the conservator’s activities before a new conservator can be appointed.
- If the conservator resigns – when a conservator is no longer able to fulfill their duty of care to the ward (usually a result of injury or illness), the conservator can file a petition asking for the court to accept his or her resignation. However, it’s critical to note that the conservator isn’t relieved of his or her responsibilities until (and unless) the court accepts the resignation. In some cases, the conservator may also be required to submit a final accounting and present a replacement candidate to the court before the resignation is accepted.
- If the conservator is removed by the court – any interested party can file a complaint or objection with the court if he or she suspects that the conservator has failed in their responsibilities to the ward. In most cases, the court will demand an accounting from the conservator and schedule a hearing. If the court finds that the conservator is remiss in their duties, the judge can order the conservator’s removal and initiate the process of finding a suitable replacement.
Filing a Petition for Ending a Conservatorship
You should be able to get the forms to end a conservatorship from the county probate court clerk or from the probate court’s website. If the ward is a minor, there are usually additional forms that you’ll need to file with the petition to end the conservatorship. In the petition, you’ll be asked for basic information about the conservator and the ward, the status and location of any assets under the control of the conservator, and your reasoning for terminating the conservatorship. After filing the petition with the court, you’ll be required to serve notice of the petition to all interested persons (including the ward) and file proof of notice with the court.
What to Do After Filing the Petition
Depending on the situation, the court may schedule a hearing, or the judge may waive the hearing and issue a summary ruling. For example, the court will probably issue a summary ruling to end the conservatorship if the ward has passed away, but a hearing is usually necessary to evaluate a claim that the ward is no longer incapacitated. In the latter example, the court may assign an investigator to evaluate the ward, and the judge may require testimony and/or certification from the ward’s doctor.
If the petition for termination is approved, the conservator will typically be required to file a final report of their activities and an accounting of the estate’s assets. Once the assets are transferred back into the adult’s control, the conservator may be required to submit verification of the transfer.
Conservatorship vs. Guardianship
Though the terms “conservatorship” and “guardianship” are often used synonymously, there’s actually an important difference between the two. The term “guardianship” generally refers to protective proceedings where the caretaker has authority over the ward’s healthcare and/or living arrangements (known as a “conservator of the person”). The term “conservatorship” typically refers to protective proceedings where the caretaker has authority over the ward’s assets and finances (known as a “conservator of the estate”). Depending on the needs of the incapacitated adult in question, the court can appoint a conservator of the estate, a conservator of the person, or both. As such, a conservator appointed to both capacities would be considered a conservator and a guardian.
Call our Guardianship and Conservatorship team at (480)467-4313 to discuss your case today.
