Celebrity conservatorships can make headlines. Take the Beach Boys’ Brian Wilson or, more recently, Britney Spears. Even still, most of us cannot answer “What is a conservatorship?” This article explores and defines conservatorships and when they are needed before outlining the available types.
What is a conservatorship?
A conservatorship is a court-sanctioned arrangement that makes a person or organization responsible for another person. This legal mechanism is intended to support vulnerable individuals (the conservatee) and protect their rights and interests.
A conservator is legally obliged to work in the conservatee’s best interests. They are also accountable to the court for their actions. Sometimes, they must even obtain court approval before taking specific actions. This might be required before a conservator can sell a property or make significant medical decisions.
When is a conservatorship needed?
A conservatorship may be needed when an individual cannot make important decisions or take care of themselves. Everyday situations that could require a conservatorship include when:
- Elderly individuals can no longer manage their affairs.
- Someone with developmental disabilities requires assistance with daily living.
- Individuals suffer a physical injury or serious mental illness that leaves them unable to make important decisions or care for themselves.
- Someone dealing with substance abuse issues or addiction can’t effectively manage their affairs.
- Minors are legally incapable of making their own decisions regarding housing, education, and more.
What is the difference between conservatorship and guardianship?
A conservatorship establishes someone to manage financial affairs for an incapacitated individual, typically an adult. A guardianship is often established to oversee the physical and medical care of a minor. The two roles can be filled by the same individual.
What is the role of a conservator?
The role of a conservator is to act as a legal advocate and protector. The conservator also makes decisions on the conservatee’s behalf.
Specific responsibilities can depend on the conservatorship type, and the conservatee’s needs but can include the following:
- Handling finances and assets to pay bills and manage investments
- Making healthcare decisions or providing consent for medical treatment
- Managing daily care for the conservatee including finding housing and arranging for care assistance
- Ensuring the conservatee receives appropriate care and treatment
- Providing updates to the court regarding the conservatee’s status and well-being
As a conservator, even if a court order is not required, you can gain credibility for your actions by consulting with the probate court. Conservators can also claim pay for their work managing the conservatee’s affairs. You would need to document your hours to receive compensation. This payment would be financed from the conservatee’s estate, so it is not always the case. Some family or friends in the role will not want to be financially rewarded.
Note: The individual filling the conservator’s role may be given another name In different jurisdictions. For instance, in Illinois, this would be a “guardian of the estate” and in other states, the conservator could be called a “trustee.” In other jurisdictions, a conservatorship could be described as an “adult guardianship.”
Selecting a conservator
In selecting a conservator, the court will elect someone who can be trusted to act on the conservatee’s behalf. The conservator selection would usually be informed by the type of conservatorship (more on that next).
Say a family is deciding which member should petition for conservatorship. They would want to consider each person’s qualifications and character. For example, different people might come to mind if the conservatorship involves managing finances versus making medical decisions. A personal friend may meet the trust criteria. Yet they may not have the acumen needed to secure the conservatee’s financial situation.
Types of conservatorship
There are many types of conservatorship depending on the situation. For example, a
corporate conservatorship sees a regulatory body overseeing the management of a corporation or organization. Nevertheless, this article is more focused on individual examples of conservatorship. This section defines different approaches to conservatorship.
General
This type of conservatorship is established when the conservatee is unable to manage their personal and/or financial affairs due to incapacity, disability, or other factors. The conservator is responsible for managing the conservatee’s daily needs, financial affairs, and other important matters. Essentially the conservator has the same rights over the conservatee as a parent has over a child.
Limited
A limited conservatorship is established when the conservatee is only partially incapacitated. The conservator is appointed to manage only certain aspects of their life. This could be specific to their finances or medical treatment. You might also hear of the Limited conservatorship style as Financial or Physical to reflect the specific areas of authority.
Temporary
This type of conservatorship is established for a limited time period. For instance, a temporary conservatorship might be necessary if the conservatee is hospitalized or recovering from an illness or injury.
Other conservatorships described by their duration could be permanent or short-term. The short-term conservatorship is typically 90 days and is only in place to address an immediate need.
Emergency
This conservatorship type is established when the conservatee is in danger or immediate harm and a conservator needs to be appointed quickly to protect them.
LPS
In California, this might be an LPS conservatorship, which is a type of conservatorship under the Lanterman-Petris-Short Act, intended for individuals who are gravely disabled due to mental illness and require involuntary treatment. This may be known as Mental Health Conservatorship, Involuntary Mental Health Conservatorship, or Psychiatric Conservatorship in another state.
Probate
This type of conservatorship is established through a probate court, which has jurisdiction over the conservatee’s assets and financial affairs. There are two types of this conservatorship. A conservator of the person is responsible for protecting someone unable to protect themself. A conservator of the estate focuses instead on the financial decisions.
Ultimately, among the types of conservatorship, the one you choose to establish will depend on your circumstances, as well as the laws and regulations in the jurisdiction where you’re establishing the conservatorship.
Process of Establishing a Conservatorship
Setting up a conservatorship can be time-consuming, complicated, and costly. It may involve multiple court hearings along the way. It can be emotionally challenging, and the conservatee may not be happy about the move as they could feel they are losing their independence.
To establish a conservatorship, the first step is to determine the type of conservatorship needed. Then, a petition is filed with the court for the conservatorship. Filing fees vary across the country, ranging from hundreds of dollars to $1,000.
An attorney is typically needed to review the filings. Plus, examiners will be appointed (and paid for). The conservatee is examined by medical professionals (e.g., doctors or psychiatrists) to determine if they are incapacitated. These healthcare experts provide verifiable documentation to the courts to make a case for the need for a conservator. The general gauge is whether the individual in question is capable of providing for themselves or a danger to themselves.
A conservator also needs to document for the court how they are managing the conservatee’s personal affairs and protecting their well-being (or plan to do so).
A conservator is generally a family member or close friend. If no one is available for the role, the court can appoint a professional Fiduciary or agency.
The court can revoke the conservator’s position in the case of abuse of the role. Conservatees can also sue to have the conservatorship removed if they feel that it is no longer necessary or that they are being mistreated.
Alternatives to conservatorship
Advanced legal planning can help you to avoid a conservatorship situation. Give someone power of attorney (POA) to act legally on your behalf regarding financial or medical decisions. With a POA, you have individual discretion to grant or revoke rights as you wish. If you draft a legal POA while of sound mind, this document would have priority over a conservatorship if the situation arose.
Similarly, creating a living will lets you communicate your own decisions regarding your medical health in case of future incapacitation.
A special needs trust, also known as a supplemental needs trust, provides for someone with a physical or mental disability, or chronic illness. With this legal arrangement, a trustee is appointed to oversee the distribution of trust income. This is often used to help the individual avoid reducing their Social Security, Medicaid, or other public assistance eligibility.
Supported decision-making is an alternative to conservatorship that has gained more traction recently. In this scenario, affected individuals can make decisions in consultation with friends, family, social services, or community organizations.
In the case of conservatorship and a minor, you might instead establish a joint tenancy and joint bank account (giving them access to the property and funds once they come of age).
Legal planning simplified
Understanding what a conservatorship is can help you with estate planning. This article has defined conservatorship and explored the many types of conservatorship, when they are needed, the process involved, and possible alternatives.
In preparing for your future needs, you may also want to search our SRSR library for other informative articles supporting your long-term planning. Check out our discussion of advanced healthcare directives and exploration of the basics of probate. Let us know if there’s something else you’d like us to cover.