Conservatorships
CONSERVATORSHIPS
HOW TO HELP, THE RIGHT WAY
Conservatorships
Is Mom or Dad (or another relative or friend) getting older such that s/he needs help with everyday things (e.g., cooking, bathing, taking meds, paying bills, etc.)? Is Mom or Dad being taken advantage of financially, either by strangers or other relatives? Is Mom or Dad in the hospital without having prepared a Power of Attorney or Advance Health Care Directive, and unable to make medical decisions? Or is there another reason why a loved one or a friend needs help? If so, a probate conservatorship might be the answer.
WHAT IS IT?
A probate conservatorship is a legal proceeding by which the Court grants someone the power to take care of a person who is unable to manage his/her care and/or finances and/or property. Once appointed, a “Conservator” gains not only the power to care for another (“Conservatee”) and/or that person’s property, but also the responsibility to do so, and is answerable to the Court if s/he fails to fulfil those responsibilities. Through this proceeding, the Conservator can attain the power to determine where the Conservatee will live, how the Conservatee will receive the assistance s/he needs every day (e.g., food, bathing, medication, etc.), and also to manage the Conservatee’s property (e.g. paying bills, etc.).
A probate conservatorship is a legal proceeding by which the Court grants someone the power to take care of a person who is unable to manage his/her care and/or finances and/or property. Once appointed, a “Conservator” gains not only the power to care for another (“Conservatee”) and/or that person’s property, but also the responsibility to do so, and is answerable to the Court if s/he fails to fulfil those responsibilities. Through this proceeding, the Conservator can attain the power to determine where the Conservatee will live, how the Conservatee will receive the assistance s/he needs every day (e.g., food, bathing, medication, etc.), and also to manage the Conservatee’s property (e.g. paying bills, etc.).
IMPORTANCE OF PROCEDURE
While conservatorships are not always necessary (e.g., if Mom already has a Power of Attorney and Advance Health Care Directive in place, a Conservatorship likely is not necessary), it is important when pursuing a Conservatorship that the necessary documents (called “pleadings”), and other requirements, be completed properly and quickly, as these situations are usually emergencies. If a certain pleading is not properly completed, or even worse, has not been completed and filed at all, this will result in a delay obtaining the Conservatorship powers needed to address the emergency situation. Similarly, if a required procedure (e.g., attending Conservatorship Orientation), is not complied with, that too will result in delays.
While conservatorships are not always necessary (e.g., if Mom already has a Power of Attorney and Advance Health Care Directive in place, a Conservatorship likely is not necessary), it is important when pursuing a Conservatorship that the necessary documents (called “pleadings”), and other requirements, be completed properly and quickly, as these situations are usually emergencies. If a certain pleading is not properly completed, or even worse, has not been completed and filed at all, this will result in a delay obtaining the Conservatorship powers needed to address the emergency situation. Similarly, if a required procedure (e.g., attending Conservatorship Orientation), is not complied with, that too will result in delays.
REPORTING
Even after appointed, the Conservator still must periodically report back to the Court with regard to what transpires during the Conservatorship. Usually, this takes the form of an annual report and accounting (although sometimes the accounting requirement is waived). Because rules with regard to accountings are very specific, the Court will not approve an accounting which does not comply with the rules, and/or is not in the proper form. Therefore, Conservators and/or their counsel must be very knowledgeable in this area so as not to run into trouble with the Court. As long as an accounting is in proper form, however, and properly shows how the Conservatorship estate was expended during the term of the accounting, the Court will approve the accounting, and award attorney’s and Conservator fees
Even after appointed, the Conservator still must periodically report back to the Court with regard to what transpires during the Conservatorship. Usually, this takes the form of an annual report and accounting (although sometimes the accounting requirement is waived). Because rules with regard to accountings are very specific, the Court will not approve an accounting which does not comply with the rules, and/or is not in the proper form. Therefore, Conservators and/or their counsel must be very knowledgeable in this area so as not to run into trouble with the Court. As long as an accounting is in proper form, however, and properly shows how the Conservatorship estate was expended during the term of the accounting, the Court will approve the accounting, and award attorney’s and Conservator fees
COSTS
Many people believe that Conservatorships are expensive, as they require thousands of dollars in time incurred by attorneys, and hundreds of dollars in Court and other costs. While this is true (most Conservatorships do end up costing thousands of dollars in attorney’s fees and costs), the law provides that these attorney’s fees and costs can be reimbursed from the Conservatorship estate (sometimes even when the Petition for Conservatorship is denied). But don’t act too fast! Before the funds of the Conservatorship estate may be used for this purpose, the Court must first issue an Order authorizing the estate funds to be so applied. This ability to access and use the Conservatee’s funds to finance the conservatorship should provide comfort to those who are concerned about using their own funds to take care of their loved ones by establishing a conservatorship.
In summary, while the process of petitioning for Conservatorship of a loved one in need can seem onerous and expensive, as long as one complies with the rules and procedures, obtaining a Conservatorship can be the best thing one ever does for the loved one in need. And if done properly, it likely will not cost anything beyond what is paid from the loved one’s estate. A knowledgeable, experienced attorney is essential, however, to successfully navigating the complicated rules and procedures, and to avoiding delays and additional expenses likely to result if the rules and procedures are not followed.
The foregoing article should be relied upon for general informational purposes ONLY, and should not be construed as legal advice, as every situation is different, and slight variations in the facts of each case can alter the applicable law and result. To obtain legal advice for your particular situation, contact Mr. Rollin.
"While the process of petitioning for Conservatorship of a loved one can seem onerous and expensive, as long as one complies with the rules and procedures, obtaining a Conservatorship can be the best thing one ever does for that loved one in need."
Harold L. Rollin, APLC
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