What is a conservatorship?

Conservatorship Explained

A conservatorship is a legal concept where an individual or organization is appointed by a court to manage the affairs of another individual who cannot do so themselves due to physical or mental limitations, or age. This arrangement is typically used for adults who are incapacitated or for minors with significant assets.

Why Might a Conservatorship Be Necessary?

1. Medical reasons: A person might suffer from dementia, severe mental illness, or other conditions rendering them incapable of making sound decisions.
2. Minors with substantial assets: They might need someone to manage their finances until they reach the age of majority.
3. Exploitation: Vulnerable adults might be at risk of financial or other forms of exploitation.

Parties Involved:

1. Conservatee: The person whose affairs are being managed.
2. Conservator: The individual or organization appointed to manage the conservatee’s affairs. This can be a relative, friend, or a professional entity.
3. Court: Provides oversight to ensure that the conservatee’s rights are protected.

Rights and Responsibilities:

1. Conservatee:
   • Maintains the right to be treated with respect and understanding.
   • Has the right to contest or seek termination of the conservatorship.
   • Can request a specific person as their conservator.
2. Conservator:
   • Must act in the best interest of the conservatee.
   • Regularly report to the court about finances and/or personal care.
   • Seek court approval for significant decisions like selling major assets or making significant medical choices.

Legal Process of Establishing a Conservatorship:

1. Petition: Someone, often a family member, files a petition in court requesting the establishment of a conservatorship.
2. Notice: Relevant parties, usually close relatives, are informed about the petition.
3. Evaluation: A court investigator or another professional evaluates the condition of the alleged incapacitated person.
4. Hearing: A court hearing is conducted where evidence is presented. The potential conservatee usually has the right to legal representation.
5. Appointment: If the court determines a conservatorship is necessary, it will appoint a conservator.
6. Ongoing Oversight: Regular reviews might be mandated to ensure the conservatee’s rights and well-being are maintained.

Note: The specific requirements and terms used may vary depending on the jurisdiction (e.g., “guardianship” might be used instead of “conservatorship” in some places).

Drawbacks/Criticisms of Conservatorship:

1. Loss of autonomy: The conservatee often loses significant personal and financial autonomy.
2. Potential for abuse: There are instances where conservators exploit their position for personal gain.
3. Stigma: There might be societal stigma associated with being under conservatorship.
4. Cost: Legal and administrative costs can be high, potentially consuming a significant portion of the conservatee’s assets.
5. Lengthy process: Establishing a conservatorship can be a lengthy and challenging process, often requiring the involvement of multiple professionals.

In summary, while conservatorships are essential for protecting individuals who cannot protect themselves, they’re not without criticism. It’s crucial for the courts to strike a balance between protection and respect for individual rights.

What is a conservatorship?

Conservatorship is a legal concept used in the United States where a guardian or protector (known as the conservator) is appointed by a judge to manage the financial affairs and/or daily life of another individual due to physical or mental limitations, or old age. The person who is unable to care for themselves is referred to as the conservatee¹.

A conservatorship becomes necessary when an individual cannot make decisions on their own due to mental or physical incapacity. This might be due to conditions like dementia, severe mental illness, prolonged coma, or chronic physical illness².

There are two main types of conservatorships: conservatorship of the estate and conservatorship of the person. The former is responsible for managing the conservatee’s financial matters such as paying bills, collecting income, budgeting, and protecting assets. The latter involves making decisions about personal matters like health care, food, clothing, and residence³.

The process of establishing a conservatorship varies by jurisdiction but generally involves filing a petition in the appropriate court, notifying the proposed conservatee and their relatives, conducting a court investigation, and holding a court hearing⁴. Medical documentation is often necessary to establish the individual’s incapacity. If the court determines that a conservatorship is necessary, it will issue an order and appoint a conservator⁵.

The conservator has fiduciary duty to the conservatee, which means they must act in the best interest of the conservatee. They are required to provide regular updates to the court, including financial accounts and status reports about the conservatee’s condition⁶.

However, conservatorships are not without criticism. They can be invasive, as they take away an individual’s autonomy. They can also be expensive due to court, attorney, and conservator fees. There have also been cases where conservators have taken advantage of their position for personal gain⁷. Therefore, conservatorship is usually considered a last resort when all other options have been exhausted.

In conclusion, conservatorship is a serious legal arrangement that should be carefully considered. It involves many parties, legal steps, and responsibilities, and its requirements can vary depending on the jurisdiction. While it can protect vulnerable individuals, it also has potential drawbacks and criticisms.

Sources:

Footnotes

1. FindLaw ↩

2. NOLO ↩

3. California Courts ↩

4. Alzheimer’s Association ↩

5. American Bar Association ↩

6. Superior Court of California ↩

7. New York Times ↩