How is a Conservator Appointed?
The precise procedure will vary to some degree from jurisdiction to jurisdiction. The typical steps are as follows:
- The person seeking the appointment of a conservator files a petition with the probate court for the jurisdiction where the allegedly legally incapacitated person resides. This petitioner is often a relative, an administrator for a nursing home or health care facility, or other interested person. A petition is ordinarily accompanied by medical affidavits or other sworn statements which evidence the person’s incapacity, and either identifies the person or persons who desire to be named conservator or requests the appointment of a conservator.
- The court arranges for any necessary evaluation of the allegedly legally incapacitated person. Often, this will involve the appointment of a “guardian ad litem”, a person who is appointed to provide an independent report to the court on behalf of the allegedly legally incapacitated person. If appointed, the guardian ad litem will meet with the allegedly incapacitated person, inform that person of his or her legal rights, and report back to the court on the person’s wishes. The guardian ad litem may also speak to the petitioner, to health care providers, and to other interested individuals in order to provide the court with full information about the allegedly incapacitated person’s condition and prognosis. Depending upon state law, the court may appoint a doctor or professional to examine the allegedly incapacitated person.
- If the allegedly incapacitated person contests the appointment of a conservator, a trial is scheduled during which sworn testimony will be given, and at the conclusion of which the judge will decide if the petitioner met the requisite burden of proof for the appointment of a conservator. The allegedly incapacitated person is ordinarily entitled to appointed counsel, if unable to afford a private attorney.
- If the allegedly incapacitated person consents to the petition, or is unable to respond to inquiries due to disability, the court will hold a hearing at which witnesses will provide sworn testimony to support the allegations in the petition. If the evidentiary basis is deemed sufficient, the conservator will be appointed.
- If a conservator is appointed, the judge will issue the conservator legal documents (often called “letters of authority”) permitting the conservator to act on behalf of the legally incapacitated person.
- A conservator will ordinarily receive compensation, subject to court oversight, for performing duties for the estate. This is often charged on an hourly basis, and is ordinarily paid from the estate of the legally incapacitated person.
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.