What do you do when someone you care about or have a moral or legal obligation to protect is unable to make good decisions for him or herself? Perhaps your loved one has not made arrangements in advance of a crisis for someone to take over responsibilities for health care or finances and the loved one has become incapacitated or incompetent. Where can you turn? In the absence of a valid, appropriate power of attorney, trust or other fiduciary arrangement, a conservatorship may be required to allow you to take control and supervision of another person’s property and/or person. A conservatorship may be needed even if a power of attorney or other fiduciary relationship is established. Where a power of attorney will promote an agent to act for another person, a power of attorney does not stop a person from behaving recklessly. A conservatorship is the mechanism to pursue in order to stop a person from behaving recklessly with health care or property.
A conservatorship is a lawsuit that is filed by one person, usually a spouse, adult child, or sibling. The person filing is called the Petitioner. The person sued is called the Respondent.
The Petitioner brings the action to ask a court to rule that the Respondent is disabled and cannot make decisions or manage property and ,therefore, need someone called the Conservator to make those decisions and manage that property for the Respondent. The Petitioner and the Conservator are not always the same person. And, sometimes one person or organization serves as Conservator of the person while another manages property.
The procedure requires due process for the Respondent because a conservatorship is a removal of rights from the Respondent. Many of these rights are considered fundamental and reflect the core values of independence and autonomy that our society values, such as the right to contract, vote, make health care decisions, choose a place to live, to marry, etc. The Respondent has the right to oppose the conservatorship. The Respondent has a right to an attorney, to have a trial, to cross examine witnesses and present evidence, and to appeal. A guardian ad litem is appointed by the Court to advise the Respondent of his or her rights and to determine if the Respondent needs a conservator and if the conservator proposed by the Petitioner is a fit and proper person to serve. The guardian ad litem’s role is to determine what is in the best interest of the Respondent but not to be an advocate for the Respondent. If the Respondent wants to fight the conservatorship proceeding, then the Court appoints an attorney ad litem for the Respondent and that attorney is the advocate for the desires and objectives of the Respondent.
In the event the Respondent does not want a conservator, the Court will conduct a hearing to determine if the Respondent should have a conservator or not. At the end of the trial, if the Court finds the Respondent is disabled either mentally or physically or both and requires the assistance, supervision and protection of the Court, then the Court will appoint a person or organization to serve as the conservator of the person and/or his estate.
When a conservator is appointed by the Court, the rights of the Respondent are moved to the Conservator. The Respondent becomes a Ward. The Court oversees the management of the property of the Ward. The Conservator has to report annually to the Court about all the transactions made with the Ward’s money. In most circumstances, the conservator must also have a bond to insure his or her conduct in an amount equal to the total liquid assets of the estate. These liquid assets are typically the bank and investment accounts and one year of income.
The conservatorship must be the least restrictive alternative available that is still protective of the Ward. Therefore, each conservatorship may be different, depending on the needs and vulnerabilities of the Ward.
Conservatorship costs are sometimes but not always paid by the Ward according to the Court order. They typically require about 45 days to conclude unless contested. Emergency proceedings for life and death situations are available. In an emergency proceeding, a hearing can be set within 7 days.
McDonald Levy & Taylor is experienced in conservatorship litigation. We represent both Petitioners and Respondents. We also offer continued representation for accountings and other matters after the conservatorship is established.