Introduction
A conservator is appointed by a judge to help a minor, disabled adult, or an incapacitated person with their financial affairs. Without a conservatorship, only the individual’s parents or spouse can manage their assets. Common duties of a conservator include:
- Handling the individual’s cash flow
- Accessing bank accounts
- Managing investments
- Buying and selling property
- Paying bills
- Collecting debts
- Filing taxes
A court-appointed conservator is expected to manage the individual’s finances with the same care that a prudent investor would use to handle their own investments. While the idea of prudent investment is open to interpretation, this fiduciary responsibility clearly carries increased accountability. When analyzing potential investments, a conservator needs to consider the individual’s income needs, risk tolerance, and lifetime goals, and keep a mindful eye on taxes and expenses that can erode the principal value.
The appointment of a conservator for minors and disabled adults is usually fairly simple, but it can get messy when you’re seeking conservatorship for a mentally incompetent adult who does not want to give up control of their affairs. Unlike a power of attorney that is granted freely, conservators are appointed with or without the ward’s permission, providing the appointment is in their best interests.
How Do Conservatorships Work?
Court-appointed conservators are usually immediate family members to the ward, but a judge can appoint a professional or public conservator if there are no qualified family members, or if there are significant disputes within the family over who should be appointed the conservator.
To initiate conservatorship proceedings, you’ll need to file a petition with the county court where the individual resides. The court will schedule a hearing, and the petitioner will be instructed to serve notice to the individual, their family, and applicable agencies. You’ll need to file proof of service with the court, typically no later than one week before the hearing.
If the ward is an adult, the judge will need verification that they are disabled, incapacitated, or mentally unfit to handle their own affairs. This usually comes in the form of a certificate from the their physician, or an independent assessment by a psychologist. If the ward is a minor, that step won’t be necessary.
After determining the individual’s mental capacity, the petitioning family member will need to show that they are qualified to be a conservator to the ward. The court typically likes to see a history of successfully assisting the ward with their financial affairs, and something that attests to your ability to handle the fiduciary duty. At the same time, the judge will also be looking for potential conflicts of interest that may disqualify a prospective conservator. Some red flags that the court looks for include a recent bankruptcy, judgement, criminal record, or a history of misusing the ward’s assets.
Once the conservator has been formally appointed, they will need to report their activities to the court annually. If the court finds any evidence that the conservator has abused their power, or has failed in their responsibilities, the judge will revoke the conservatorship and appoint a new administrator in their place.
How Much Does it Cost to Become a Conservator?
The costs associated with filing a conservatorship petition and being appointed by the court vary from case to case, but you can expect to incur the following costs:
- Court fees for filing the guardianship petition
- Attorney’s fees for filing the guardianship petition
- Fees for professionals who attest to the individual’s incapacity (doctors, psychologists, social workers, etc.)
- Attorney’s fees for the minor, disabled adult, or incapacitated person
- Costs of notifying family members of hearings and proceedings
- Ongoing attorney’s fees during the course of guardianship
- Accounting fees for recordkeeping and audits
What is the Difference Between a Conservator and a Guardian?
Some states consider guardianship and conservatorship to be one in the same. People also tend to use the terms synonymously in casual conversation. In states that differentiate between the two, a conservator is tasked with handling someone’s finances, while a guardian is given the authority to handle all aspects of their personal, financial, and medical affairs. In addition to the standard financial responsibilities of administering their assets, a guardian can consult with the individual’s doctors, make important medical decisions, and plan their living arrangements. In all of these responsibilities, the guardian will need to monitor the individual’s general wellbeing to prevent elder abuse, fraud, mistreatment, neglect, and bodily harm.
How is a Power of Attorney Different Than a Conservatorship or Guardianship?
A durable power of attorney is a legal document that allows an adult (the principal) to authorize a legal agent (the attorney-in-fact) to access their accounts and act on their behalf when necessary. A power of attorney is almost always preferred over conservatorship or guardianship because it is freely granted by the principal, and the principal does not need to surrender their ability to make decisions for themselves. In contrast, a conservatorship or guardianship forcefully takes away the individual’s decision-making abilities, and the conservator or guardian is appointed with or without the ward’s consent.
To grant a power of attorney, the principal needs to be of sound mind. As such, a disabled or incapacitated adult cannot issue a power of attorney. The principal must also be free from duress or undue pressure, granting the power of attorney by their own volition.
How to Get a Power of Attorney
A do-it-yourself power of attorney is perfectly acceptable and legal, but it’s always a good idea to work with an experienced attorney who can make sure the document is properly drafted. When the document is complete, a witness will need to sign it to attest that the principal is of sound mind and not subject to undue pressure. Both the principal and the witness will need to sign in the presence of a notary public.
Can a Conservatorship, Guardianship, or Power of Attorney be Revoked?
Just as a power of attorney is freely granted, it can be rescinded or replaced at any time by the principal. A conservatorship or guardianship can only be revoked by a judge.
Call our Guardianship and Conservatorship team at (480)467-4313 to discuss your case today.