Oftentimes, most have heard of and have a basic understanding of a guardianship (whether for a minor child or for an incapacitated adult). A guardianship allows for another to be appointed as guardian over the person of an incapacitated person (the ward). In this role, a guardian is to care for, monitor and speak on behalf of the ward’s body and physical actions.
Another type of legal proceeding that can be put in place is a conservatorship. A conservatorship is needed when an adult individual is impaired to the extent of lacking sufficient understanding or capacity to make or communicate responsible personal decisions, and who has demonstrated deficits with managing property and business affairs. This type of legal action is necessary when it is clear that the individual has property that will be wasted or dissipated unless management is provided. In sum, a conservator is appointed by a court to make financial decisions for a protected person.
Establishing a Conservatorship
When it becomes clear that a person cannot manage his or her own financial decisions, then a petition for a conservatorship can be filed with the local court. The following people can petition the court:
- the person to be protected;
- an individual interested in the estate, affairs, or welfare of the person to be protected; or
- a person who would be adversely affected by lack of effective management of the property and business affairs of the person to be protected.
The petition should provide a brief description of the nature and extent of the person to be protected’s alleged impairment and how that impairment is impacting his or her financial decisions. Additionally, the petition should provide a general statement of the type and value of property in the person to be protected’s estate and a reason why a conservatorship is in the best interest of the person to be protected.
Who Can Be Conservator
To become a conservator of a protected person, a court generally requires a background study of the proposed conservator. This study looks into any prior criminal history of the proposed conservator and completes a thorough search of state licensing agencies to determine whether the proposed conservator ever had a license conditioned, suspended, revoked or canceled. Furthermore, the court will consider the following proposed conservators in order of priority:
- a conservator, guardian of the estate, or other like fiduciary appointed or recognized by an appropriate court of any other jurisdiction in which the person to be protected resides;
- a person nominated as conservator by the person to be protected, including the respondent’s most recent nomination made in a durable power of attorney;
- an agent appointed by the respondent to manage the person to be protected’s property under a durable power of attorney;
- the spouse of the person to be protected;
- an adult child of the person to be protected;
- a parent of the person to be protected;
- an adult with whom the person to be protected has resided for more than six months before the filing of the petition;
- an adult who is related to the person to be protected by blood, adoption, or marriage; and
- any other adult or a professional conservator.
A hearing will be held to determine whether a conservator is necessary. The person to be protected does have a right to have counsel. However, the person to be protected can be excused from attending the hearing, with the court’s permission. After the hearing and upon the court’s order, the court will issue letters of conservatorship upon the conservator’s filing of an acceptance of office and the posting of any required bond by the conservator.
Next week, Part II of Conservatorship Basics will cover a conservator’s duties and discuss when and how a conservatorship is terminated.
One thought on “Conservatorship Basics: Part 1”
Great job, Jayne. As a probate litigator in West Palm Beach, Florida, I have been, admittedly, surprised by the “growth” of what we call “guardianships” of adults in Florida. For good or for ill, guardianship litigation is also exploding as family and others, second and third spouses, and step children, seek to control the person and property of those who have advanced in years and declined in abilities. Your article nailed the very important issues, including planning for incapacity or a conservatorship, and the use of powers of attorney, rev trusts and health care documents. Letting clients pre determine who is in charge can save the clients time, money and frustration. Well done. http://www.pankauskilawfirm.com
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