The Basics of Conservatorship
We sometimes get calls from persons, even our own clients, about initiating a conservatorship over another person. Conservatorship occurs when a person is not legally able to manage his own affairs. A person may require a Conservator if that individual is physically or mentally incapacitated. In situations where someone is made incapacitated by illness or by injury later in life, the court may be asked to appoint a Conservator to take over the management of that individual’s assets. However, there are many downsides to this arrangement that could be avoided if an incapacity plan was created while still of sound mind before an incapacitating illness or injury occurs.
As part of our law practice, we provide assistance in planning ahead in case of incapacity so there is no need for Conservatorship to occur. We work with you to ensure you can use the right legal tools to name someone to act on your behalf and to give someone legal authority over you if you become incapacitated. Contact us if you need help to plan for your own incapacity or if you need assistance in responding when a loved one has become incapacitated.
Conservatorship Problems
Conservatorship could be the only option in circumstances where a person has already been rendered incapacitated due to illness or injury, unless there were plans made in advance. An incapacity plan could consist of a power of attorney that allows you to name an agent to act for you if you become incapacitated. The agent will serve the role that a Conservator would serve. Other incapacity planning tools- like advanced healthcare directives- can also be used to provide instructions on medical care in case of incapacity, while tools like living trusts can provide additional options for asset protection.
Unfortunately, once incapacity has happened, taking advantage of these tools is no longer an option and Conservatorship may be the only choice. There are, however, downsides to this, including the following:
- Conservatorship proceedings must be initiated in court: In order for a Conservator to be appointed, court action is required. They are costly and complicated at a difficult time when illness or injury has resulted in incapacity.
- There may be a delay until a Conservator is appointed: Because a Conservator must be appointed by the court, there could be a delay until incapacity is officially determined and the court appoints a Conservator. During this time, assets could be mismanaged and there could be uncertainty about decisions that need to be made. A temporary Conservatorship may be an option but it too is expensive and burdensome.
- The Conservator may not have been the person the incapacitated individual would have chosen: When no power of attorney or trust has been created, the court decides who acts on behalf of the incapacitated person, rather than that person choosing for himself or herself.
- The Conservator may not be fully equipped to manage assets and make decisions: The court tries to appoint an appropriate Conservator and that Conservator has a fiduciary duty to act in the best interests of the Conservatee. Still, if the incapacitated person had complicated investments, a Conservator may have a difficult time managing those assets as effectively as possible. A Conservator without an idea of what the Conservatee would have preferred will also have a more difficult time making decisions than an agent would, had the incapacitated person created a power of attorney and had advanced discussions with the chosen agent.
