Conservatorships and Adult Guardianships
Learn about conservatorships and guardianships for elders or other adults.
Conservators have court-ordered authority and responsibility to manage the affairs of those who can no longer make their own decisions about finances or health care. If the incapacitated person planned ahead and signed durable powers of attorney for finances and health care, that person won't need a conservator because the person named in those documents can take charge. (See Durable Financial Power of Attorney: How it Works and The Living Will and Power of Attorney for Health Care: An Overview.) However, if no planning has been done a common situation then family members must ask a court to appoint a conservator or guardian.
If a court appoints someone to take care of financial matters, that person is usually called a "conservator of the estate," while a person in charge of medical and personal decisions is a "conservator of the person." An incapacitated person may need just one type of representative, or both. The same person can be appointed to take both jobs. Both types of conservators are supervised by and held accountable to a court.
Generally, conservatorships are established for people who are in comas, suffer from advanced Alzheimer's disease, or have other serious illnesses or injuries.
Pros and Cons of a Conservatorship
Conservatorships are time-consuming and expensive; they often require court hearings and the ongoing assistance of a lawyer. The paperwork can also be a hassle, because the conservator must keep detailed records and file court papers on a regular basis.
All court proceedings and documents are a matter of public record, which can be an unwelcome intrusion for someone who values independence and privacy.
Conservators are subject to court supervision, which provides a powerful safeguard for an incapacitated adult's property. To prevent conservators from mismanaging the property or otherwise taking advantage of the people they are helping, most courts require conservators to provide periodic reports detailing their actions. Many courts also require the conservator to seek permission before making major decisions, such as selling real estate (for a financial conservator) or terminating life-support (for a conservator in charge of health care decisions).
In addition, a financial conservator must often post a bond (a kind of insurance policy that protects the conservatee's estate from mishandling). The bond premiums are paid from the conservatee's assets and are an unnecessary expense if the conservator is competent and trustworthy.
Occasionally, however, a conservator will mismanage a conservatee's assets or make poor choices about the conservatee's health care. Although each state has rules and procedures designed to prevent such abuses, few have the resources to keep an eye on conservators and follow through if they spot trouble. Many cases of incompetence or mistreatment go unnoticed.
The Court Process
Anyone including the proposed conservatee, family members, and friends may object to the conservatorship in general, or to the specific choice of conservator. Someone who wants to block a conservatorship must file papers with the court, inform all interested parties (the proposed conservatee, family members, and possibly close friends), and attend a legal hearing.
When someone begins a conservatorship proceeding, a judge must hear evidence on the person's mental capacity. If the judge concludes that a conservator is necessary, he or she will appoint one commonly, the spouse or adult child.
It's rare, but sometimes several family members or friends may vie for the job. If that happens, the judge follows preferences established by state law. Most states give preference to the conservatee's spouse, registered domestic partner, adult children, adult siblings, or other blood relatives. But a judge who thinks someone else is best for the job may pick that person.
Without strong evidence of what the conservatee would have wanted, it is unlikely that a nonrelative would be appointed conservator if a relative is available to serve. Because of this, conservatorship proceedings may cause great heartache if an estranged relative is chosen as conservator over the conservatee's partner or close friend. If no one suitable is available to serve as conservator, the judge may appoint a public or other professional conservator.
How Conservators Are Compensated
Conservators are reimbursed for expenses, and paid for their services, from the assets of the person they are taking care of. Payments must be "reasonable" in the eyes of a court. Generally, payments are only made to professional or public conservators, but a family member who has been appointed conservator may also seek compensation by making a request to the court.
Financial Support for Someone Under a Conservatorship
A conservator isn't required to support the conservatee, just to manage the conservatee's own assets and make personal decisions for him or her. A financial conservator does have the responsibility to seek all financial benefits and coverage for which the conservatee may qualify. These benefits may include Social Security, medical insurance, Veterans Administration benefits, pension and retirement benefits, disability benefits, public assistance, and Supplemental Security Income. When needed, close family members (including the conservator) often use their own money to help support a conservatee.
Ending a Conservatorship
A conservator must act until the court issues an order ending this responsibility. This ordinarily happens when:
- the conservatee dies
- the conservatee no longer needs this level of assistance
- in the case of a financial conservatorship, the conservatee's assets are used up, or
- the conservator resigns or can no longer handle the responsibilities. In this situation, the conservatorship itself does not end, but someone else takes over the conservator's duties.
For a detailed guide to difficult decisions regarding care for elders, get Long-Term Care: How to Plan & Pay for It, by Joseph Matthews (Nolo).