What is a Conservatorship?
A conservatorship is a court proceeding in which a judge appoints a responsible person or persons (the “conservator(s)”) to care for another adult (the “conservatee”) who is unable to care for herself or himself or manage her or his own finances.
In situations where adults lack capacity or the ability to care for themselves or their estates, as a result of either illness or severe injury, conservatorships may be necessary.
General Conservatorships and Limited Conservatorships
There are two kinds of conservatorships: General Conservatorships, also called Conservatorships of the Person and the Estate, and Limited Conservatorships, which are most often Conservatorships of only the Person.
General conservatorships of both the person and their estate can be sought to manage the care and finances of an adult, often an elder person, who has lost mental capacity. General conservators manage the conservatee’s personal care and health, and make decisions involving food and nutrition, medical care, housing and other provisions. They must also manage the conservatee’s financial affairs, such as paying bills or handling other important financial matters like fulfilling contractual obligations, filing tax returns and collecting income.
Limited Conservatorships and Temporary Conservatorships
Limited conservatorships are limited to conservatorships of either the person or the estate.
In some cases conservatorships are temporary, such as when a conservatee has some immediate need and a petition for a general conservatorship is in progress but is not yet approved by the court. Temporary conservatorships are also limited to a specific period of time, usually a fixed term ranging from 30 to 60 days. A temporary conservatorship may apply to either the estate or the person or both. The scope of the temporary conservator’s authority is also limited subject to a judge’s approval in certain circumstances, such as the ability to remove the conservatee from their residence, sign or surrender leases, or sell or dispose of assets belonging to the conservatee’s estate.
Conservatorships for Adults with Severe Mental Illnesses
Conservatorships may also protect adults with severe mental illness or developmental disabilities. A special type of conservatorship known as a Lanterman-Petris-Short (LPS) Conservatorship may be sought for persons with severe mental health illnesses who require special care. LPS conservatees are typically adults who need extensive mental health treatments such as psychotropic drugs to control behavior, as well as significant restrictions on living arrangements, relationships and other activities.
This type of conservatorship has a higher legal criterion of “grave disability” along with other requirements and is therefore more difficult to obtain. The process to initiate an LPS conservatorship begins with a referral by a designated mental health treatment facility, agency or court and a Public Guardian must petition the court for initial appointment. The court can later appoint the Public Guardian, a relative or interested party to act as temporary or permanent conservator. LPS conservatorships automatically end after one year, but can be renewed annually at subsequent court hearings. Both children and adults may qualify for LPS conservatorships as long as all legal criteria are met.
Nominating a Conservator in a Revocable Living Trust
Conservator planning can be addressed during the estate planning process such as when setting up a revocable living trust. The person who is creating the trust, called the Trustor, can name a conservator and alternates in their documents to assist and inform the court with the appointment proceedings should that need later arise. The choice of conservator(s) should be someone who is trustworthy and responsible to carry out the assigned duties of conservator, such as managing personal care, health decisions, financial affairs, and periodic reporting to the court.
Not all conservatorship petitions are granted. Judges will use their discretion in granting a conservatorship if they feel it is not warranted or if they determine that a particular conservator is not fit to serve.
Conservatorships are Expensive
There are fees associated with the filing of conservatorship petitions, which may be waived upon proof of financial hardship based on the income and assets of the petitioner. The minimum fees vary depending on the jurisdiction, but they typically start around $800 and up, and also cover the costs of the court investigator who is a neutral third-party who must also determine when the conservatee needs an attorney to assist in the process. The court investigator oversees the process throughout the duration and the ongoing costs are assessed against the conservatee’s estate. It is important to note that the petitioner, who is often a friend, relative or interested party of the proposed conservatee is eligible to receive reimbursements for court costs they personally absorbed.
Conservatorships can be very expensive, especially if contested, in which case additional attorneys who specialize in conservatorships must be retained. However, without attorney assistance, the risk for mistakes, delays or omissions is greater and can result in additional costs charged to the estate.
For more information about conservatorship proceedings, check the local or state guidelines in your jurisdiction.