WALTEMATH LAW OFFICE

Conservatorships

A conservator is someone who is appointed by the courts to assist another with their financial affairs.  To be appointed as a conservator, you must file a petition with the court.  Interested persons must be notified of the petition.  Interested persons are generally a spouse, adult children, and others who have authority to act for the ward such as agents under a financial power of attorney.  The petition must include a letter from the ward’s doctor that indicates that a conservator is necessary.  In addition, the petitioner must file an Acceptance Of Office form and attach his or her driver’s license, a criminal history check, and a credit report.  The court then appoints a visitor to investigate and report to the court whether a conservator is necessary and if the person petitioning the court for appointment is a suitable person to be appointed.  After all of this documentation is filed with the court, the court holds a hearing where the ward, otherwise known as the respondent before the appointment of a conservator, must be present. It is the responsibility of the petitioner to have the respondent present in court for the hearing unless it is medically impossible.  The respondent has the right to object to the appointment of a conservator and they have the right to their own attorney.  If the court decides that it is in the best interest of the respondent to appoint a conservator, it then makes an appointment and issues Letters of appointment and an Order.  The Order will usually require the conservator to file annual reports with the court.

A conservator is responsible for the ward’s finances.  A conservator may receive the ward’s income and pay his or her bills if no guardian is appointed.  A conservator holds title as a trustee to all real and personal property that is owned by the ward.  The conservator has specific duties to properly manage and invest the property of the ward.  The conservator must never commingle the wards’ property with their own property.  Unless good cause is shown, the court will require the conservator to post a bond to ensure their performance as a conservator.  A conservator must propose a financial plan within three months of appointment describing how the protected person’s assets will be invested and applied for their best interest.  The financial plan is like a budget, which is approved by the court and updated as necessary.  An annual Conservator’s report is also required showing the changes in income, expenses and assets.

The appointment of a conservator is terminated by the death of the ward, death of the conservator or order of the court.  A conservator must transfer any money owned by the ward at his or her death to the ward’s estate and a final accounting must be rendered.

The purpose for appointing a conservator is to protect a person from themselves or others.  We all know of cases where a person is no longer able to make good decisions for themselves.  He or she may be susceptible to the undue influence of others who do not have their best interest at heart.  Our conservatorship laws have been developed to protect these people.  An audit of guardianship and conservatorship cases was done last summer.  New laws were enacted to maintain the degree of supervision necessary to ensure the timely and proper administration of guardianships and conservatorships.  The court may independently investigate the actions of any guardian or conservator and issue orders that it deems appropriate to protect the protected person and or their assets.  If the court determines that a breach of fiduciary duty has occurred or the exercise of power by the guardian or conservator has been improper, then the court may surcharge the guardian or conservator for any damages or loss to the estate, beneficiaries or interested persons.  Such damages may include compensatory damages, interest and attorney fees and costs.