Conservatorships

Q: What is a Conservatorship?

A: A conservatorship is a protective court proceeding, designed to protect someone the court believes is vulnerable and/or incapable of managing his/her own affairs.  They come up in a variety of contexts: a car accident renders a person unable to act, an elderly family member is being financially exploited, a friend is stricken by a disease and requires total assistance to manage her affairs…

 

Q: How much do they cost?

A: They are not cheap.  Even a simple, uncontested court proceeding will be at least $5,000 – $10,000.  If anyone contests (fights) the conservatorship, costs will rise dramatically.  A conservatorship is also an ongoing expense, in the sense that you are subject to court oversight and the court wants you to check in periodically.  You must prepare and file court accountings to account for a conservatee’s assets and you must update the court on the conservatee’s status.  However, the conservator may request fees for his/her time, and those fees may be paid out of the conservatee’s assets subject to permission from the court.  Likewise, attorney fees may be paid from the conservatee’s assets.

 

Q: Are there alternatives?

A: Sometimes, yes.  If the vulnerable/infirm person has prepared a durable power of attorney and advance health care directive naming agents to act on his/her behalf, the conservatorship may be avoided.  Sometimes they are unavoidable.  For example, if an elderly, estranged family member is subject to exploitation, the power of attorney won’t prevent them from giving away money, transferring title to the house, or otherwise being fleeced of assets.  Or to give another example, if the infirm person has prepared a power of attorney but the power of attorney is inadequate, then a conservatorship might still be necessary.

 

Q: Wait, what do you mean durable power of attorney and advance health care directive- what are those?

A: If we are rendered unable to act for ourselves, who will act for us?  For example, if you are in a car accident and knocked unconscious…then lapse into a coma, who should the doctor speak to about your care? Who should check your bills to make sure everything is paid?  These are the concerns that drive the need for “powers of attorney”.  A power of attorney gives another person the right to act on your behalf, if you cannot act yourself.  A power of attorney for financial issues is a durable power of attorney (for assets), the advance health care directive addresses your medical decisions.  Having these documents in place can usually forestall the need for a conservatorship.

 

Q: The forms say Conservatorship of the Person and Estate…What’s the difference?

A: There are two general types of conservatorships.  A conservatorship of the Person means you are asking for power to control medical and health decisions for another person.  This includes choosing where the conservatee will live.  A conservatorship of the Estate covers the financial issues.  So you can petition the court for authority with respect to health and medical decisions, or financial decisions, or both.

 

Q: Can I be a Conservator with someone else at the same time? Like if my brother and I both want to be Conservators for our dad?

A:  Yes, and it’s very common.  You can serve as co-conservators appointed by the court to act together.

 

Q: What’s a “Limited” Conservatorship?

A: A limited conservatorship is a special type of conservatorship, specially designed to protect adults with developmental disabilities.  If you have a child with a developmental disability, he or she will need a limited conservatorship at the age of 18.  This ensures that you will still be able to legally protect his or her interests even though he or she is now legally an adult.  The regional center and your child’s treating physician will both provide input to the court.

 

Q: Can I do it myself or do I need an attorney?

A: You can do it yourself, although it is a very painstaking and sometimes arcane process. Documents must be filed in a very particular format, people must be served according to special rules, and everything must follow the court’s timetable. The smallest omission or error will cause the process to stall.  It can be done, but it is very difficult.