For some members of our society, legal protection may be necessary even after they have entered adulthood. These individuals may have been born with a medical condition, injured in an accident, developed an incapacitating physical illness or psychological disorder, or have some other condition that prevents them from caring for themselves. Sometimes it is just with age that we lose our capacity to make decisions and take action. In these cases, a Conservatorship may be established.
Conservators and Protected Persons
Conservatorship, also referred to as guardianship in other states, is a legal arrangement that places an individual, also known as a ward or protected person, under the supervision of a conservator, or custodian. There are two main types of conservatorship: conservatorship of the person and conservatorship of the estate.
Our clients often nominate a family member, a friend or a professional or corporate fiduciary to serve as Conservator, but that nominee will only have legal authority to act after a court appoints them as Conservator. A protected person can be a minor without a parent or natural guardian or an adult who can no longer make safe and sound decisions about his or her own person or property. Additionally, an adult may be placed under conservatorship who is prone to fraud or undue external influence.
While conservatorship does attempt to maintain the protected person’s independence, it should only be considered in appropriate cases, as it may significantly impinge upon rights of the individual. Often, there are less-restrictive means to provide informal assistance without the burden and expense of having a court appoint a conservator. These must be explored and all options exhausted before filing for conservatorship, both to meet legal requirements and to preserve and protect the dignity of your loved one.
Appointment of a conservator can materially limit the civil rights and privileges of the protected individual in areas such as:
- Choosing residence
- Providing informed consent to medical treatment
- Making end-of-life decisions
- Making property transactions
- Obtaining a driver’s license
- Owning, possessing, or carrying a firearm or other weapon
- Contracting or filing law suits
- Marriage
- Voting
Right to Due Process
To safeguard the protected person’s right to due process, he or she will be entitled to notice of, and ability to attend all legal proceedings related to conservatorship. In addition, the protected person will be appointed an attorney to represent them in the proceedings and have the opportunity to present evidence, and confront and cross-examine all witnesses.
Conservatorship of the Person
Conservatorship of the person often grants the following powers and duties to the appointed conservator:
- Determining and maintaining residence
- Providing informed consent to and supervising medial treatment
- Consenting to and supervising non-medical services such as education, psychiatric or behavioral counseling
- Making end-of-life decisions
- Paying debts and other expenses
- Maintaining the protected person’s autonomy as much as possible
The conservator is required to report to the court regularly about his or her activities and the status of the conservatee.
Conservatorship of the Estate
Conservatorship of the estate grants the following powers and duties to the appointed conservator:
- Organizing, gathering and protecting assets
- Arranging appraisals of property
- Safeguarding property and assets from loss, whenever possible
- Managing income from assets
- Making appropriate payments
- Obtaining court approval prior to any sale of major assets
- Reporting to the court the estate’s status on a regular basis
Conservatorships are meant to protect an incapacitated individual until he or she regains capacity. Depending on the condition that created the incapacity, a conservatorship may be a lifelong arrangement. Over time, this can be very expensive and burdensome, so it is essential to explore less restrictive options. If you are considering filing for a conservatorship, we would be happy to assist you in exploring these options as they pertain to a loved one.
Guardianship of Minors
A similar court process called Guardianship may also be used to protect the legal rights of a minor. In the event that a parent is no longer able to act on behalf of his or her child, a Guardian, usually a relative, is appointed. Unlike an adoption, a guardianship allows the parents to retain their parental rights, and they do remain financially responsible for supporting the child financially.
A minor may be considered for legal guardianship if his or her parent cannot provide shelter, does not have a steady income, suffers from an illness, or is incarcerated. In most instances, parental approval is sought prior to any legal proceedings.