At The Elder Law Legal Group, P.C., we’re happy to help a variety of clients with their guardianship or conservatorship concerns. We assist those who want to appoint their own conservators, as well as those seeking to become conservators for other individuals.
What is the difference between Guardians and Conservators?
The traditional distinction between guardians and conservators is as follows:
Guardians – A guardianship is a legal right given to a person to be responsible for the food, health care, housing, and other necessities of a person deemed fully or partially incapable of providing these necessities for himself or herself.
Conservators – A conservatorship is a legal right given to a person to be responsible for the assets and finances of a person deemed fully or partially incapable of providing these necessities for himself or herself.
In some jurisdictions, a conservatorship may be referred to as a “guardianship of the estate”, or by some similar alternative name.
There are many circumstances where a person is still able to live an independent life, but may require assistance with his or her assets due to failing health or disability. Thus it is not unusual for a petition to be made for the appointment of a conservator, even where the allegedly incapacitated person does not require a guardian.
Types of Conservatorships
There are two main types of conservatorships: probate and Lanterman-Petris-Short. The most common type, probate conservatorships are further divided into two categories:
- General conservatorships typically involve seniors with dementia or other severe health problems that prevent them from managing their own affairs.
- Limited conservatorships involve adults with developmental disabilities.
Rare, but important, Lanterman-Petris-Short conservatorships are reserved for adults with severe mental health problems. These individuals require restrictive living arrangements and extensive care.
When Is A Conservatorship Required?
It may be necessary to petition a court to appoint a legal guardian for persons:
- Who have physical or mental problems that prevent them from managing their own financial affairs;
- Who have no person already legally authorized to assume responsibility for them; and
- Where other kinds of assistance with financial management will not adequately protect them.
Who Qualifies to Be a Conservator?
A variety of people can file for conservatorship. Often, the conservatee’s spouse or close relatives complete petitions. Friends can also file, as can local agencies. Additionally, the proposed conservatee can appoint a preferred individual. If the conservatee fails to appoint somebody, preference is granted to his or her spouse. The order of preference continues with adult children, followed by parents and siblings.
Becoming a Conservator
If you wish to be appointed conservator for a friend or family member, you’ll need to file a petition with your local court. You can either begin this petition on your own or with help from the proposed conservatee. An investigator may discuss the matter with the conservatee and his or her relatives. A hearing follows, at which the judge either grants or denies the proposed conservatorship. If granted, Letters of Conservatorship are issued, and the conservator is allowed to assume authorized powers and responsibilites.
If you’re ready to petition your local court for conservatorship, it is imperative that you work with a respected San Bernardino conservatorship attorney. At the The Elder Law Legal Group, P.C., we offer patient counsel, plus assertive representation throughout the appointment process. Whether you intend to appoint a conservator for yourself or are vying to take responsibility for a loved one, you’ll be glad to have attorney Richard Smith on your side. Contact us at your earliest convenience to learn more.
What Are a Conservator’s Duties?
The first duty a conservator has is to take an inventory of the legally incapacitated person’s assets, and to report those assets to the court.
If the conservator will be paying money on behalf of the legally incapacitated person, it will be necessary to open a special checking account reflecting the conservatorship (e.g., in the name of “John Doe, as Conservator for the Estate of Jane Smith”). Courts often require that the checking account return the actual physical checks after they are processed, and that those cancelled checks be maintained as part of the conservator’s records.
The conservator will be responsible to account for all expenditures, and for the assets of the estate, typically on an annual basis or more frequently if ordered by the court.
If the legally incapacitated person has assets that must be maintained, or which are not in use, the conservator may seek court permission to rent or sell those assets. For example, if the legally incapacitated person has a home but will never be able to return home due to illness or disability, it may be wise to sell the home. If the legally incapacitated person is expected to return home, but not for an extended period of time, it will be necessary to maintain the home, and in some circumstances may be appropriate to rent the home during the period when the legally incapacitated person is absent. Similarly, rather than leaving a motor vehicle parked in a garage for years, it may be in the best interest of the legally incapacitated person to sell the vehicle before further depreciation or deterioration from non-use.
If the legally incapacitated person is capable of participating in financial decisions, the conservator is ordinarily required to permit the legally incapacitated person to participate to the extent he or she is able. In some circumstances, a court may appoint a conservator to perform a certain set of tasks which are beyond the ability of the legally incapacitated person, while permitting that person to manage his or her own affairs for other financial tasks which remain within his or her ability.
A conservator is typically required to post a bond, unless the requirement is waived by the court. In most jurisdictions where bond is required, waivers are common.
The Purpose of Court Supervision
The court supervises the conservator’s actions by requiring that permission be obtained in advance of certain major transactions (such as the sale of a legally incapacitated person’s home), and through annual accountings, in order to ensure that the legally incapacitated person’s assets are being properly managed, bills are being paid, nobody is misappropriating funds, and the estate is not being wasted.
How Can a Conservatorship Be Ended?
A conservatorship can be terminated by the court which created it. This ordinarily happens if the legally incapacitated person recovers from the incapacity that necessitated the conservatorship. A particular conservator’s role may be terminated by the court or by resignation, in which case the court will ordinarily appoint a successor conservator to take over management of the legally incapacitated person’s assets. A conservatorship also ends upon the death of the legally incapacitated person.
It is possible to avoid the necessity of a conservatorship through estate planning. A good estate plan will include a general durable power of attorney to permit a trusted individual to manage your personal affairs in the event of your incapacity. You may also create a more limited power of attorney, which protects your assets in the manner you desire rather than leaving their management to the discretion of a conservator or court. In most cases, when this document has been executed in accord with the laws of your state, it will not be necessary for your loved ones to seek the appointment of a conservator should something happen to you.
You may also choose to place your assets into a living trust, such that they are automatically under the management of a designated trustee in the event that you become disabled.
For more information and a free consultation call The Elder Law Legal Group, P.C. at 866-386-4135 or complete the client contact form.