LEGAL DICTIONARY

Conservatorship

Conservatorship is a form of legal guardianship that is placed over incapacitated individuals or minors. This is a court-appointed position that falls under the jurisdiction of a local judge which is often created due to sudden illness or disability.

This authority allows the appointed conservator to take control of the property, finances, and personal affairs of the conservatee (the person the decisions are being made for) or ward. It grants them extensive powers over the life of the individual.

Alternative names that can be used for conservators include:

  • Guardians
  • Trustees

This article explains in detail what a conservator does and how they might attain these responsibilities. Read on to learn more about how conservatorship is legally granted, what duties a conservator has to perform for an individual, and when this form of protection is usually granted to the conservatee.

When is Conservatorship Granted?

There are a few scenarios where conservatorship may be granted. A conservator might be appointed when an individual is:

  • Disabled and unable to take care of themselves
  • Mentally incapacitated through illness or old age
  • Fully incapacitated
  • Unconscious or in a coma
  • A minor with no legal guardian

In all cases, the conservatorship is granted when the person in question is not able to take care of their own basic needs. Each case has to be assessed by a probate court or family court before this duty of care can be legally appointed.

What Types of Conservatorship Exist?

There are two main types of Conservatorship that exist. They are probate conservatorship and LPS conservatorship.

  1. Probate conservatorship is the most common form of authority granted across the United States. Conservators under this system are appointed by the conservatee’s state of residence and can apply either for short or long term durations, depending on the judge’s verdict.
  2. LPS or Lanterman-Petris-Short Act Probate’s however only apply in California. It must be renewed by the conservator on an intermittent basis rather than continuing indefinitely.

What Are the Responsibilities of a Conservator?

A conservator has many personal and fiduciary responsibilities for the conservatee. Some of the most important duties that a guardian will have to perform for an incapacitated or mentally incompetent individual include:

  • Financial tasks: Managing banking, money, investments, and property on the conservatee’s behalf
  • Physical health: Making healthcare and residence decisions for the ward

The conservator might have to take responsibility for some or all of these tasks depending on if the conservatorship is full or limited. Full conservatorship means that the guardian controls all aspects of the ward’s wellbeing. Limited conservatorship on the other hand only grants the conservator authority over specific aspects of the conservatee’s life.

How is a Conservator Appointed?

State courts need to be petitioned in order for a conservator to be appointed. The final process will always depend on the state laws that apply to the case however, the path to conservatorship normally follow these steps:

  • A court order is created to rule on whether a conservatorship should be created for the affected individual.
  • Medical evidence should be identified and gathered that confirms the need for a conservator to be appointed.
  • The potential ward can present their case if they disagree with the appointment.
  • The court considers the intricacies of the case and makes a decision on whether or not to appoint a guardian and what duties they will be required to carry out for the conservatee.

Conservatorship Vs. Power of Attorney

Conservatorship has many features in common with Durable Power of Attorney documents. Both allow someone other than yourself to make essential welfare decisions for you. However, there are some key differences.

An agent acting under the Power of Attorney can be chosen by the person needing care. It is an essential part of estate planning and can be arranged years before the principal falls into mental incapacity.

Conservatorship, on the other hand, is not voluntary. It is a court-mandated process and the conservatee will not have a choice of who is appointed conservator. Conservatorship can also override Power of Attorney if an Attorney-in-Fact stands down or is forced to retire by court order.

In some states, however, Power of Attorney documents do allow you to name your choice of guardian in the event of your agent being unable to perform their duties and should guardianship need to be granted. These legally recorded wishes will be taken into account if conservatorship needs to be awarded under any circumstances.