PROBATE COURT – PART 3: Conservators
A Conservator is a person appointed by a Probate Court to oversee medical and/or financial affairs of an adult. There are two types of conservatorships, voluntary and involuntary and then there are two distinct roles of a conservator, Conservator of the Person and Conservator of the Estate. A Conservator of the Person is a person appointed by the Probate Court to make medical decisions of an adult (called a “Ward” once conserved) should that adult not be able to make those decisions for himself or herself. A Conservator of the Estate is a person appointed by the Probate Court to oversee an adult’s financial affairs.
A voluntary conservatorship is one in which the adult petitions the Probate Court to have someone appointed as his or her own Conservator of the Person and/or Estate. The Court does not make a finding that the adult is incompetent and the adult/Ward, with thirty days notice to the Court, can revoke the conservatorship at anytime (so long as he or she is still competent).
An involuntary conservatorship requires medical evidence and a finding by the Court that the person is not competent to handle his or her own affairs. The Court will generally give deference to the adult’s choice of who he or she wants to serve as conservator if he or she had executed a “Designation of Conservator” in advance of his or her period of incompetency so long as there is no conflict in doing so. Unless the adult to be conserved waives the requirement of a bond, which would have to be done in the “Designation of Conservator” in the case of an involuntary conservatorship, the court will order a bond be obtained by the Conservator of the Estate equal to the value of the liquid assets of the Ward. A bond is nothing more than an insurance policy that insures the estate of the Ward from inappropriate use of funds by the Conservator.
The Court has the ability to expand or limit the powers of a Conservator in order to give the Ward as much autonomy as his or her then condition dictates and as the Ward’s condition changes, for the good or bad, the Court can modify the powers accordingly. As a Conservator of the Estate in an involuntary or voluntary conservatorship the conservator must take control of all the assets of the Ward so that not even the Ward has access to any assets without going through the conservator. This is for the protection of the Ward as much as for the conservator. The conservator, once appointed is responsible to account to the Court for every penny received and spent and must provide regular accountings. This hard line of asset control is sometimes difficult in a voluntary conservatorship because the Ward is giving up control even though he or she is still competent to handle his or her own affairs. The conservator can give the Ward an “allowance” for spending money but should still try to document as much of it as possible with receipts. Should the Ward’s competence start to wane, the conservator would be wise to minimize the allowance because the conservator may very well have to protect the Ward’s assets from the Ward’s own waning fiscal responsibility.